IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List
Case No. CI-21-03590

RYAN BRADLEY-LAWTON	Plaintiff	
		
V		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	HER HONOUR JUDGE K L BOURKE	
WHERE HELD:	Melbourne	
DATE OF HEARING:	18 October 2023	
DATE OF JUDGMENT:	30 November 2023	
CASE MAY BE CITED AS:	Bradley-Lawton v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2023] VCC 2177		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords: 	Serious injury application – impairment of upper limbs – psychiatric impairment – worker under 26 – loss of earning capacity – pain and suffering conceded
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:	Barwon Spinners & Ors v Podolak (2005) 14 VR 622; State of New South Wales v Moss [2000] NSWCA 133; Jarvis v Woolworths Ltd [2012] VCC 1329; Giankos v SPC Ardmona Operations Ltd [2009] VCC 819; Berthelot v Fleetweld Pty Ltd (2015) VCC 1453
Judgment:	Leave granted to bring proceedings for damages for loss of earning capacity.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr C O’Sullivan with
Mr A Coote 	Slater and Gordon Lawyers	
For the Defendant	Mr A Middleton	Russell Kennedy	

HER HONOUR:
Preliminary
1	This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an injury by the plaintiff suffered during the course of his employment with C and D De Martin (“the employer”) on 4 June 2019 (“the said date”).
2	The application is brought pursuant to subsection (a) of the definition of serious injury. There, serious injury is defined relevantly as meaning “permanent serious impairment or loss of body function.”
3	The body function in this application is bilateral upper limbs.
4	Pain and suffering was conceded. The plaintiff seeks leave in relation to loss of earning capacity only. 
5	The plaintiff bears an overall burden of proof upon the balance of probabilities.
6	When a worker is under twenty-six years of age at the date of injury, pursuant to s325(2)(e)(i) of the WIRC Act, he must establish that at the date of the hearing he has a loss of earning capacity of 40 per cent or more.  Further, he must establish, pursuant to ss(e)(ii) of the Act, that he will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more. Subsection (f), which relates to older workers and requires consideration of income from personal exertion in the three years before and three years after the injury, does not apply.
7	I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak in reaching my conclusions.
8	The plaintiff swore five affidavits and was cross-examined.  Further, he relied on an affidavit sworn by his mother, Melanie Bradley, on 4 May 2022 and an affidavit sworn by apprenticeship officer for CFMEU Construction, Liam O’Hearn, on 27 May 2022.  Also in evidence were medical reports and other material.  I have read all the tendered material.
9	In issue was whether the plaintiff could establish the requites loss of earning capacity for a worker aged under 26 at the date of injury. The defendant’s position was that there was “certainly one suitable and possibly other occupations within the scope of the plaintiff’s capacity which would satisfy the more than 60 per cent threshold.”  
The Plaintiff’s evidence
10	The plaintiff is currently twenty-one, having been born in March 2002. He is left hand dominant. 
11	He commenced work with the employer in January 2019 as an apprentice carpenter on a three-month trial. He had left school a month earlier, finishing Year 9 in 2018. He had no relevant experience in the carpentry or building industry. 
12	Mr De Martin, a partner in the employer firm, never raised any issues with him regarding his work performance. His eyesight had never been a problem for him when doing carpentry or cabinetmaking, before or after the said date. 
The incident 
13	On the said date, the plaintiff was working at a Clyde North site assisting the carpenters by keeping the site tidy. He was asked to remove the moisture from the top floor. There was no scaffolding on the edge of the house and he did not have any way to secure himself. 
14	He was pushing the water off the edge of a two-storey house with a squeegee when he tripped on what appeared to be a screw or protrusion in the floor causing him to fall over the edge onto the ground hands first (“the incident”).
Treatment 
15	Having been initially taken to Casey Hospital, he was then transferred to Dandenong Hospital. He suffered fractures in both wrists, which were surgically repaired a week or so later. Plates and screws were inserted in both wrists (“the surgery”). He was told he had broken his wrists in a bad spot.  
16	Following the surgery, the plaintiff had hand therapy for about six months. He was advised he would likely have arthritis in his early twenties. 
17	He has learned to live with the pain and does his best to get by. Some days are better than others. He puts up with the pain and does not take medication. He is not aware of any treatment which can help him further.
Pain Consequences
18	As at April 2021, his left hand was his worst injury. He had particular pain in his left wrist and by about midday, the pain was usually bad in both wrists but mainly in the left. It caused him problems daily at work. The pain was quite bad and he experienced cramping. 
19	He had significant surgical scarring. He did not suffer deformity but found it annoying when people want to touch the scars which remind him of the incident. 
20	Strength in both hands and wrists was reduced, particularly for his dominant left hand. For example, he basically moved his whole arm to wave.
21	Prior to the incident, he enjoyed playing gridiron. He played for the Melbourne Royals in the Gridiron Victoria League for a few years. He still played in the under 19’s after the incident but had to adjust his playing style because of wrist pain. 
22	He could throw the ball but struggled to tackle because he could not bend his wrists properly to “wrap” a player up and tackle them. His wrists hurt when he took a bump. He devised extra padding to protect his wrists, but they still hurt. He intended to continue his career into the adult gridiron league, which was now impossible. 
23	He played his first game post incident in the week of 25 September 2019. He felt good but unfit.  He only played three games that season with the Melbourne Royals Under 19’s.  He coped but with a bit of a struggle, his wrists were padded up a fair bit. 
24	He only lasted on the ground for about 10 minutes as he was “just getting too uncomfortable”.  After the third game, it was getting difficult and he was still getting pain so he had to stop completely. It was not correct when he told Dr Slesenger in December 2021 that he had not been able to play since the injury.
25	His wrist pain and restricted movement affected other sporting activities. He could only do push ups on his knuckles and he struggled to shoot a basketball with his friends. 
26	Prior to the incident, he attended the gym about twice per week lifting weights, including free weights. He had not returned to lifting weights post injury but tried to keep fit with cardio. He lifted light weights up to about 3 kilograms as part of his hand therapy but that was very different to what he used to lift. 
27	As at April 2022, he had developed a stammer or stutter which had become prominent in the previous 12 months. It was a constant problem for him. He never had a stammer before the incident. The consequences of his injury and difficulties caused him anxiety and stress. 
28	He always had poor eyesight in his left eye and was uncertain whether it had become worse since the incident. He always worked around his eye problem and it was never really a big problem for him. 
29	He had lost about 50 per cent of his strength in his left hand although both hands were affected. 
30	He still did things. For instance, he could pick up his six year old sister but did so with pain. 
31	In early 2022, he returned to some gridiron training, attending three training sessions. He only did part of the training and was not involved in any of the practice of the actual plays. He had difficulty throwing the ball.  He used to play quarterback or running back position but could not keep playing because of his wrist injury and risk of further injury. His father and brother continued to play. 
32	He tried to return to gym and shoot a basketball, but could not shoot properly. 
33	Pain affected both wrists – he was never pain free. 
34	Sleep was not too bad as he had his wrists flat down or under his pillow. 
35	He had knocked his head during the incident. His memory was now very poor and he struggled to remember things that happened recently and had to write things down.  
36	He had seen a psychologist a couple of times but that did not really help.  He has not been referred to a psychiatrist.  He did not think he would have problems mentally, but would be unable to do physical jobs like cabinetmaker, shopfitter, driver and packer.
37	As at October 2022, his pain, symptoms and restrictions were largely the same as previously deposed. His wrist pain was worse the more he used his wrists and in colder weather. He had trouble lifting heavier weights and gripping or manipulating small objects like buttons or utensils. He had pain after prolonged typing. 
38	Sometimes, he woke at night with pain in his wrists. His hands generally felt weaker and he did not trust them. 
39	He had not returned to gridiron, basketball and other sports and did not intend to.  
40	He felt like he would be stuck in dead end jobs where the work was repetitive without career progression or creativity. He had lost the opportunity to earn a good wage. 
41	His bilateral wrist pain persists, going into his palms. He cannot move too far without pain. Pushing or pulling or lifting makes things worse. He still struggles holding smaller things. He experiences pins and needles less because he does not use his wrists as much. His hands still feel pretty weak. 
42	He misses sports and does not feel good being inactive. 
Employment
43	In 2019, he had completed some traffic control certificates. He needed to complete a first aid course if he intended to pursue this employment. 
44	He completed a Traffic Control Certificate with Forsite in October 2019. He initially said he did not have approval from the agent to do the First Aid Course, but then agreed he did, but did not start it.   
45	He completed the two qualifications to undertake the Traffic Control role, one was traffic management and one was a Stop and Go Pattern.  However, at that stage, he did not have a driver’s licence and it was not until March 2020 that he would.  
46	He applied for an interview for a traffic controller role even though he did not have the First Aid Certificate because some places did not require this Certificate. He did not do the first aid course at that stage because he did not have date booked for it.  
47	When he applied for this interview in November 2019, it was his belief having done the two courses, traffic control was something he felt he could do which would not interfere greatly with his wrists.
48	The recruitment agency then started looking for apprenticeships for him because he did not have the driver’s licence to work in traffic control.  He found a job himself as an apprentice in cabinet making at AS & N Joinery (“AS & N”).  
49	He agreed it was his intention, if he had not got the cabinet making apprenticeship, to do the First Aid Course and try and get a job after turning 18.
50	He agreed the main reason he did not follow through with traffic management was because he obtained this job. He confirmed at that stage, he believed he could do the traffic controller work but looking at it now “most of the stuff I can do but it’s the turning the bat because I can’t get the full movement in my wrist to turn the bats (the Slow and Stop signs) around.
51	He could not turn his whole body around to show those signs because “you could not have your back facing the traffic.” He confirmed he now could not do this job as what had changed was he now had more pain and less movement in the wrists. He could not get the wrist to turn normally and would have to turn his body around then have his back to the traffic and risk injury.
52	If he had to move a Stop and Slow signs 10 to 15 times per day, it would hurt his wrists. “The right hand was the worst. The left hand had the shortness of gripping and all that the most.”  Pain was in both wrists but mainly the left because he mainly used the left “which side would be more painful.”  
53	In the 2019 course, he was taught how to turn the sign:
“but they had us turning it very slowly to get it all down on pattern. Where we turned it, it was always turned slowly.  We were taught to just hold it on an angle so you just have to turn it a little. So we weren’t flicking the wrist, we were just turning our wrist a little bit because he had us having it on an angle because there’s no cars that will use it. When they do it on the roads, they have it fully straight next to them and then turn it fully.  When it is real life stuff, you have got to have it showing firmly straight in front of them. That when doing it on the road its firmly in front and you have got to be quick as well because you communicate with another worker also.”  
54	He would have to work out a new technique how to move the traffic signs. He agreed if he stayed in one place, he could accommodate that without using his wrist, like he did when playing air hockey.  He agreed using the sign as a traffic controller, he could adopt a certain way of doing things that would not involve his wrist.  With the right help from someone who had the experience, then it could be done.  
55	He agreed he could “accommodate” himself moving the sign as he did accommodate himself playing air hockey.
56	In re-examination, he explained doing it in real life, he would have trouble getting his hand to do “the flat stuff” straight in front of him with his hand up.  He could not get his hand fully up and “that would also interfere in being able to do the job properly”.  
57	He has never done the First Aid Course; he has never done any traffic control work. His knowledge of the job (from the course) was that on a day to day basis, the job would involve setting up the signs and the cones and all day monitor the traffic.
58	Following the incident, he switched to cabinetmaking with a different employer because he was too scared to go back to carpentry type work. 
59	But for the injury, he hoped to own his own carpentry business in the future. He was worried about his long term future in the industry as he expected the wrist pain to worsen. He was uncertain about what he would achieve and believed he has been dealt a harsh blow to his earning potential. 
60	In January 2020, he started an apprenticeship in cabinetmaking with AS & N. His workplace was supportive and was aware of his injury. 
61	He needed assistance with lifting and he avoided tasks that were unduly difficult. He could move small pieces of MDF sheets or if they were levelled up with the saw. However, he needed assistance for larger pieces whereas other employees were able to handle these by themselves. He could otherwise manage his tools fairly well. 
62	He found it harder and harder to work with his hands because of his wrist pain and restricted movement. His left wrist, which he used most for his tools, was his worst injury. He took frequent breaks, but at the end of the day, his wrists were sore, particularly the left. 
63	The heaviest task he did at work was moving a cabinet off the bench to the floor, which he did with the help of another worker. He tried to move the smaller ones by himself. 
64	He resigned in March 2022 because it was not a good working environment. He took days off work if he had medical appointments for his wrist or wrist pain or was generally sick. The foreman complained about his time off. He used annual leave where he could. 
65	The work at AS & N was getting too hard, but the main reason he left was he was not getting on with other workers.
66	Mr Vincent, director of AS & N, was not his immediate supervisor or foreman. He would not know whether the plaintiff had any difficulty lifting weights in that job. The plaintiff did not want to complain about his wrist pain when he was having problems. He was already getting a hard time by the foreman and complaining would not have helped that situation. 
67	Towards the end of his time with AS & N, the plaintiff got a job trial at Sabrina. The idea was that he would start off doing general labouring duties and progress to cabinetmaking, specialising in shopfitting and complete his apprenticeship there. He was not happy at AS&N and wanted to secure another job before resigning. He took his own tools home from AS & N at night so he could complete the job trial at Sabrina. 
68	He was challenged by his boss at AS & N Joinery about coming to work tired and that he should not have been doing the other job. He stopped working at AS & N after that disagreement.  
69	He worked at Sabina for about three months until June 2022 on a casual basis, working 40 hours per week earning $30 per hour. He was uncertain whether he could complete his cabinetmaking apprenticeship because of his wrist pain.  
70	He had hoped the work at Sabrina would be lighter, which turned out not to be the case. He tried his best, but the work was just no good for his wrists because of the pain. After a few months, he realised he needed to find something lighter. He left Sabrina on good terms. 
71	He was unable to finish his cabinetmaking apprenticeship and did not think he would ever go back to it. The work was too painful for his wrists. He was upset he could not complete the apprenticeship given the time and effort he put in. 
72	He then obtained a full-time job at Dobsons through a friend doing picking and packing car parts. The job involved taking parts from boxes and shelves and packing them. The parts were very light and on occasion, there would be heavier items weighing up to 10 to 15 kilograms. He took his time and was careful. There was no pick rate, so he went at his own pace. Dobsons was aware of his wrist injuries and allowed him to do administrative tasks and have breaks. He was paid $24 per hour. 
73	Shortly after he commenced in August 2022, Dobson decided to let go of some of their employees. Since the plaintiff was the last one hired, he was the first to go. 
74	Working at Dodsons, he had help from the other workers as well with lifting.  He left because of a downturn in the market, “last on first off.” He agreed he coped with that work.
75	He then enrolled with labour hire company, Blaze Recruitment. He told them about his injuries and the need for lighter duties. He was placed at Foamez in Bayswater for three weeks, where he was making foam pods for concreters. He was mostly operating a machine. It was casual, full time work. They ran out of work after three or so weeks. 
76	He was then placed by Blaze at Royal Beauty Network doing packing work. It was also casual, fulltime work. He did not do overtime and was paid $28.46 an hour. He did a mix of daytime and evening shifts. The role involved sitting at a table, placing very lights products - the heaviest weighing about 5 kgs - into boxes.  
77	The job was not too hard on his wrists, but his wrists ached by the end of the day and in particular, by end of the week. He could not do more hours even if they were available. The other workers were aware of his injuries because they saw the scars and they helped him with the more awkward boxes. 
78	Blaze found other jobs that he was able to carry out without any major problems.
79	In September 2022, he finished up at Royal Beauty Network and commenced employment with Crown Posture Bedding as a truck driver, where he is currently employed. He was offered better pay - $30 an hour. He is paid for overtime either $40 or $50 an hour. The hours vary and he does what he can. Some weeks there is more work available than others. 
80	He agreed the CFMEU wage document set out wage rates for a traffic controller in excess of what he is currently earning as a truck driver.  
81	His current job involves driving mattresses and bed parts from the warehouse to stores around Victoria and New South Wales. He drives a medium rig. He parks in front of the loading docks at the stores and they unload the mattresses and bed parts into his truck. He only unloads little things or brings things forward to the door of the truck. 
82	He finds truck driving better for his wrists than the work with Royal Beauty as there is less lifting. He does some paperwork. 
Current treatment 
83	When he sees his general practitioner now it has nothing to do with his wrists.  He is not taking any medication for his wrists, the last time being “at the start when it all happened”. He is not seeing a hand therapist anymore. He had not been back to the orthopaedic surgeon who operated, and he has not been seeing a psychologist.  He has not been having any treatment.
84	He agreed he would try and avoid any activity that would aggravate the pain in either wrist.  
85	A short film was shown of the plaintiff playing a game of air hockey with his family. He was holding the disc in his left hand. He could use his whole arm to play. He agreed he was moving the disc backwards and forwards without any apparent disability. On some days, there is no pain at all.  
86	He has this game at home and he has worked out how he can use his whole arm without irritating his wrist at all.
87	Playing air hockey, he does not twist his wrist, he holds the disc firmly and moves with his arm.
Lay Evidence
Ms Melanie Bradley- the plaintiff’s mother 
88	Ms Bradley swore an affidavit on 4 May 2022. 
89	In the incident, the plaintiff sustained nasty fractures to both wrists and a lump around the area of his bad eye.
90	She was concerned he possibly sustained a mild head injury, basing her opinion on her observations as a mother who lives with and knows her son well.
91	The plaintiff complained of a change in his eyesight after the incident. He also had problems with his memory.  
92	Three months after the incident, the plaintiff started stumbling over the odd word.  Since about mid-2021, his stutter has gotten a lot worse. She had never known him to stutter or stammer prior to the incident.
93	The plaintiff always wanted to do carpentry. He wanted to be a master builder and earn a good living. He was always a very hands-on person. He was not an academic but was active and sports orientated.
94	The plaintiff now complained regularly of wrist pain. Like his siblings, he was not the one to complain without very good reason.
Mr Liam O’Hearn
95	Mr O’Hearn swore an affidavit on 27 May 2022.  He has been an Apprenticeship Officer for the CFMEU Construction for approximately 16 years. He is a qualified carpenter. 
96	As an apprenticeship officer, he was aware of the rate of pay applicable to apprentices and qualified trades people in the construction industry. 
97	He exhibited the 2022 CFMEU rates of pay document to his affidavit.
98	The document set out an hourly rate of $54.14 and weekly rate of $1,877.04 for a qualified trades person including a carpenter.  This was only the base rate and workers were entitled to other allowances including weekly pro rata annual leave, weekly pro rata annual leave loading, RDO accrual and rates of pay for travel allowance and other entitlements. 
99	The rates increase each year and were not static.
100	It was common in the construction industry for carpenters to work overtime and was not unusual for them to work 10 hours per day Monday to Thursday, eight hours on a Friday and on a Saturday – a 56-hour week.
101	Carpenters often worked overtime because builders push them to work long hours. This was known as “pushing the structure”.  Carpenters were fundamental to any building site and their work was necessary for other trades to be able to perform their job.  As a result, there was always pressure on carpenters to work fast and do overtime.
102	He expected that a fully qualified first year carpenter would be capable of earning at least $130,000 per annum and for that to increase, with experience, to about $150,000 per annum. 
103	The allowances set out in the annexed document were really base amounts and higher allowances, in particular, site allowances, could be much higher if the value of the building job was in excess of $20 million.
104	Qualified carpenters sometimes prefer to go on a salary as site supervisor. In his experience, a site supervisor could earn about $150,000 per annum which increased with experience and size of the project.
Medico-legal
Dr Robyn Horsley, occupational physician
105	Dr Horsley saw the plaintiff in July 2021.
106	Having noted the plaintiff’s education and training work, she discussed his inability to return to heavy work following the incident and that he was fearful of working at heights. He began a cabinetmaking apprenticeship in January 2020. 
107	The plaintiff had no other formal qualifications.  He had some literacy and spelling issues. He could read and understand about 80 per cent of the Herald Sun front page.  His mother helped him with his emails and correspondence but he could write basic letters himself.  
108	The plaintiff did not believe he would be suitable for an office job but was able to type and could use Microsoft Office Word and had some knowledge of Excel and PowerPoint.
109	At the time of the assessment, the plaintiff was working at AS & N.  He used a computerised CNC machine to make bench tops. The maximum lift was 8 kilograms, otherwise it was a two-person lift.  Most of the items he had to lift weighed between 3 and 8 kilograms.  He was working full-time and coping with the physical nature of the role but had to modify how he manually handled items because of the reduced range of motion in both wrists.
110	She diagnosed bilateral Salter-Harris type 4 fractures through each distal radius with ongoing reduced range of motion and intermittent pain.  The plaintiff had a residual bilateral wrist disability. Given the nature of the injury and physical nature of his role as cabinetmaker, he was at risk of developing secondary biomechanical problems in his elbows, shoulders and potentially his neck. He was particularly at risk of developing medial/ lateral epicondylitis in the elbows.
111	At the time of the assessment, the plaintiff planned to complete his cabinetmaking apprenticeship and then move into a supervisory, foreman-type role.
112	She was loathe to give him physical restrictions beyond his current employer’s recommendation of up to 8 kilograms. He would need to move away from manual work in the long term.  She did not believe there should be any further restrictions but thought his plan to move into a supervisory position was a prudent one, which would decrease the risk of accelerating the degenerative process.
113	The plaintiff was still at risk of acceleration of the degenerative process in a manual labour type role. It was most appropriate that he move into a supervisory role.
114	Ultimately, these injuries would impact on his long-term functional capacity.
Dr Joseph Slesenger, occupational physician
115	Dr Slesenger examined the plaintiff on three occasions. 
116	On the first examination in December 2021, the plaintiff advised of the incident injury.
117	Following the incident, the plaintiff complained of residual bilateral hand pain over the flexor aspects of both wrists.  He described the pain as constant, moderate to severe and aggravated by cold weather, activity and disturbed sleep. He had restricted range of movements, particularly with regard to ulnar and radial deviation, although flexion and extension were also restricted. 
118	The plaintiff reported weakness in both hands, noting difficulty gripping, twisting, pushing and pulling and he had difficulty with fine dextrous tasks.  Pinch grip and normal grip were weakened but key grip was normal. On the whole, his left-hand symptoms were worse than the right. 
119	The plaintiff ceased work with the employer and commenced fulltime work with AS & N, working 6.30am to 4.30pm. His employers were sympathetic to his injury, and he had been allocated lighter duties including edging, finishing tasks, woodcutting using circular bench saws, panel saws and drills. He occasionally attended installations, although he was limited in his capacity in installation tasks. 
120	The plaintiff avoided cabinet assembly, receiving incoming deliveries, use of electric pallet jacks, most deliveries, although he would occasionally deliver a small item.  He was attending work consistently and reliably. 
121	Dr Slesenger then thought the plaintiff could work with following restrictions:
•	No push, pull, carry or lift over 5 kilograms;
•	Avoid repetitive wrist tasks;
•	Avoid firm gripping, pushing or pulling; 
•	Avoid form torque movements. 
122	Taking into account his age, location, employment history, qualifications and computer skills, the plaintiff had limited capacity for suitable alternative duties. He was able to return to work but in a supported work environment that he would have difficulty replicating in an open job marked. There were a number of barriers, including driving limitations, lack of qualifications and limited employment experience.
123	There was further concern that the plaintiff would develop degenerative disease in both wrists, which would further impact on employment prospects. 
124	In his supplementary August 2022 report, Dr Slesenger was provided with Dr Behan and Dr Ireland’s reports.
125	He noted that Dr Ireland thought that further surgery may be required if there was a deterioration in the plaintiff’s presentation and it would be reasonable to assume that any further surgery would result in a reduction in his function.  Dr Slesenger thought it was difficult to predict the likely restrictions following further intervention but confirmed the restrictions outlined in his previous report were likely to continue.  Restrictions relating to gripping, pushing and pulling may require revision.
126	The plaintiff was already working at the edge or beyond his current capacity limits. Any further deterioration in his symptoms, including an increase in pain and reduction in his range of movements was likely to impact further on his ability to remain at work as a cabinetmaker or indeed any trade manual dexterity/ manual lifting.
127	On re-examination in September 2022, the plaintiff’s bilateral wrist symptoms had deteriorated since the last assessment.  Pain was more intense and noticeable during the course of the working day and occasionally woke him at night. 
128	 Since the last assessment, the plaintiff had commenced work at Sabrina as a labourer/shop fitter which involved working with six other staff members. He was required to climb, squat, bend, forward reach, use power tools and hand tools and lift weights up to 20 kilograms.  He also worked in restricted spaces. 
129	The plaintiff’s symptoms deteriorated during these activities but he remained there for three months full time when he was eventually made redundant. 
130	He then commenced work with Dobsons as a casual Car Parts Interpreter/ Pick Packer working full time hours.  He was lifting weights of up to 30 kilograms. He ceased this role when he was made redundant.
131	More recently, the plaintiff secured employment at Foamex, manufacturing solid foam for use in construction.  The foam pods were manufactured, cut and shaped on automated machinery and he and two other staff unloaded the foam from the conveyor and onto a pallet.  The job required him to forward reach, twist, bend and lift foam blocks weighing up to 8 kilograms.  The repetitive tasks aggravated his wrist symptoms. 
132	As at September 2022, Dr Slesenger thought that the plaintiff retained capacity for work with restrictions.  Consistent with his previous report, he thought the tasks performed at Sabrina as labourer and shop fitter and at Dobsons lay outside the plaintiff’s capacity limits.  He expressed concern his job at Foamex was also outside his limits.
133	While it appeared the plaintiff was working in a supportive work environment, a work site visit may be useful to address the current arrangements.  
134	He was not certain that the plaintiff would be able to secure and retain employment in a job open market and while he was working in a supported work environment, this ultimately may not be in his interest.
135	Dr Slesenger last saw the plaintiff in March 2023.  The plaintiff had ceased work at Foamex in November 2022. He was struggling with the pace of the tasks (keeping up with conveyor production) and had difficulty lifting items on and off the production line.
136	The plaintiff is currently working as a truck driver at Crown Bedding.  He makes two to three trips to and from the distribution depot and Forty Winks per day.  He works five days per week between 7.30pm and 3.00pm Monday to Friday.  He drives a light truck which he is not required to load or unload. He is not required to secure the loads or close the gates and curtains.
137	The plaintiff’s permanent work restrictions in relation to both wrists included no push, pull, carry or lift over 5 kilograms, avoid fast repetitive wrist tasks, avoid forceful push, pull or torque movements, avoid using ladders and avoid repetitive fine dexterous tasks.
138	Based on the plaintiff’s residual bilateral wrists impairment, he could not return to his pre-injury role as the job demands lie outside his capacity limits.
139	The plaintiff was fortunate to secure his current employment and would have difficulty in securing a similar role as a truck driver in an open job market.
Dr Felix Behan, plastic and reconstructive surgery
140	Dr Behan examined the plaintiff in April 2022. 
141	The plaintiff then presented with reduced range of motion in both his wrists. On assessment over Zoom, the range of motion of his left wrist was certainly less than the right and a figure of 10 to 15 degree differential was Dr Behan’s superficial assessment on the images. 
142	Pain occurred constantly, particularly at the end of a day’s work and sometimes when handling heavy drills as part of his cabinet making apprenticeship. He was limited to 5 kilograms in both wrists and was restricted by the pain and fatigue in his wrists after a strenuous day’s work. 
143	As a result of the head injury, the plaintiff had developed a periodic stammering which he witnessed during the assessment. 
144	At the time of the assessment, the plaintiff was working on a machine cutting cabinet pieces. The apprenticeship pay may be standard for both the plaintiff’s previous and current job but he thought the ultimate financial return for a builder had to be compared with a cabinet maker.
145	The plaintiff’s work as an apprentice cabinetmaker was a consequence of the injury and “reflects that the attitude would then have him involved in doing work less arduous compared with his former outside building construction commitments”.
146	On re-examination in February 2023, the plaintiff continued to have dysfunctional pain in the left wrist more than the right wrist aggravated, by heavy lifting.  He only uses the left side as a support mechanism when any lifting is required.
147	The plaintiff’s return to work pattern was noteworthy moving from carpentry apprenticeship to solo truck diving. He had a personality change in relation to stammering, which could have been a contributing factor when comments were made by his work mates.  He is now a solo truck driver which helps his anxiety and the manifestations of his stammering. The lifting of any delivery boxes is done with the right hand and he only uses his left side for support.
148	In relation to work capacity, the plaintiff had lost interest in finishing his cabinet making apprenticeship and thought there may have been an element of harassment in the workplace because of his intermittent neurological stammering.
149	The scarring is insignificant and does not warrant a calculation as no further surgery is indicated.
Dr Matthew Tagkalidis, psychiatrist
150	Dr Tagkalidis assessed the plaintiff on 20 October 2021 via Zoom. 
151	On assessment, the plaintiff’s speech was of normal rate, volume and prosody, spontaneous and fairly excessive. Affect was mildly depressed and predominately frustrated, largely restricted to these elements, well communicated and congruent with thought content.  Thought form and stream was normal. He was primarily occupied with frustration about his stutter and physical limitations post-accident.
152	Dr Tagkalidis diagnosed an Adjustment Disorder with Depressed (predominately frustrated) Mood and some features of traumatisation, relevant to the claimed injuries.
153	There were no relevant pre-existing psychiatric issues.
154	He suggested the plaintiff was not able to work in his pre-injury duties as a carpentry apprentice because he would become overwhelmed with anxiety and flashbacks on open roof and secondary storey spaces. Incapacity was of an indefinite nature.
155	The plaintiff had returned to fulltime cabinet making apprenticeship and was coping well in general and as such had a full working capacity for suitable employment.
156	The prognosis was somewhat guarded as a result of the chronic and unremitting nature of the plaintiff’s physical state.
Dr Elizabeth Mullaly, neuropsychology
157	Dr Mullaly carried out a neuropsychological assessment on 5 June 2022. 
158	The plaintiff’s results following assessment fell mostly in the “Low Average” to “Average” range which was expected given his educational and occupational background.  
159	Mental arithmetic score was “Very Low” and this contributed to his Full Scale IQ falling at a lower than expected level.  His word reading was at Grade 3 level and he had difficult with comprehension of mid to upper primary school written material.
160	She did not think the plaintiff suffered a significant traumatic brain injury in the incident, although his co-workers told him he was unconscious for a minute or two.  CT brain scan was normal and his Glasgow Some Scale score was 15/15 when he was first assessed in the hospital two hours post- fall.
161	She attributed the plaintiff’s subjective memory disturbance and stuttering to psychiatric reaction to the incident in the absence of a traumatic brain injury.
162	The plaintiff reported he was managing his job in cabinet making and his supervisors were tolerant of his slow learning and memory lapses, which seemed to be a positive element of his job that would not be relied upon in the competitive employment market.  If his psychiatric condition remained at the current level, he may have difficulty in higher pressure jobs in the future. 
163	The plaintiff had an academic learning disorder which may not have been fully diagnosed when he was at school.  His reading level was below the level he would need for re-training for sedentary jobs such as administrative work or clerical work.  His level of numeracy was also very low.  These limitations would be relevant if he began finding manual labouring work physically difficult over time.
Flexi Personnel
164	Mandy Morgan from Flex Personnel provided an earnings report in May 2022.
165	According to Indeed, the current average salary for a carpenter in Victoria was $94,003 per annum or $47.57 per hour exclusive of overtime and allowances as at 4 May 2022.
166	According HAYS Salary Guide 2021/2022, the annual salary range for a construction residential foreperson in Melbourne was $90,000 to $120,000 per annum.
167	According to the CFMEU Enterprise Agreement 2020/2023, the current earnings for a qualified carpenter working on a commercial construction site in Victoria effective from 1 March 2022 were as follows – Carpenter CWS Gross Wage $52.14 per hour, 36-hour week, $1,877.04, Fairs and Travel $243 per week, making a total of $2,120.04 and a total gross of $110,242.08.
168	The gross hourly rate and gross annual earnings of a cabinet maker, according to Indeed, set out the current average salary in Victoria was $62,573 per annum, or $31.67 per hour exclusive of overtime and allowances.
169	The gross hourly rate and gross annual earnings of a traffic control worker, according to Indeed, set out a current average salary in Victoria of $61,992 per annum, or $31.37 per hour exclusive of overtime and allowances.
170	In a further report in June 2022, the gross hourly rate and gross annual earnings of an experienced supervisor foreman in a cabinet making business according to Indeed was $48.18 per hour or $94,474 per annum for an experienced supervisor foreman.  In terms of a factory foreman in Melbourne, there was a base salary of $90,000 to $99,000.
171	In her recent, report Ms Morgan commented on Mr O’Hearn’s affidavit.
172	The hourly rate as stipulated by him of $52.14 applied until 1 March 2023.
173	As per point five of his affidavit, the current earnings for a qualified carpenter working on a commercial construction site in Victoria under that agreement effective from 1 March 2023 were as follows:  Carpenter CW3 – gross wage $53.74 per hour, 36-hour week, $1,934.64.  Fares and travel allowance $262.50 per week.  Total gross per week $2,197.14, total gross per annum $114,251.28.
174	She agreed it was common in the construction industry for carpenters to work overtime and that the salaries suggested by him would be a reasonable total annual salary estimate inclusive of overtime.
Defendant’s evidence
Lay witnesses
Mr Rodney Christopher Vincent
175	Mr Vincent, a director of AS & N swore an affidavit on 5 August 2022. 
176	The plaintiff commenced employment with AS & N in approximately January 2020 as an apprentice cabinet maker on a full-time basis. He resigned in approximately March 2022.
177	He was aware of the plaintiff’s bilateral injuries.  The plaintiff disclosed his wrist injuries during interview.  He was comfortable the plaintiff’s injuries would not impede his ability to complete the assigned tasks.  As far as he was concerned, the plaintiff’s previous injuries never affected his ability to perform the full duties of a cabinet maker.
178	The plaintiff was able to lift reasonably heavy weights, including large cabinets, without difficulty.
179	Just before the plaintiff resigned, he noticed the plaintiff coming to work quite tired on a number of occasions and taking tools home with him at night. When that occurred, he would sometimes not come into work the next day.  There was a rumour the plaintiff had obtained a second job. 
180	He approached the plaintiff about this, and the plaintiff confirmed he had obtained a second job as a shop fitter, which he would do after work until midnight. 
181	He told the plaintiff he needed to focus on his apprenticeship as a cabinet maker and not work at night. Shortly after the discussion, the plaintiff tendered his resignation.
Medical certificate
182	On 18 October 2019, Dr Peiris certified that the plaintiff was fit for suitable employment. He should not lift more than 5 kgs and was suitable to do a traffic control training course as per TSA. 
Medical evidence
Dr Damien Ireland, hand surgeon
183	Dr Ireland examined the plaintiff on 16 November 2021.
184	The plaintiff was then experiencing pain on the left dominant wrist, worse than the right sided pain.  He located his pain on the volar and radial aspect of his left wrist.  The pain occurred approximately once every two days and lasted for approximately five minutes. Excessive use provoked the pain, which settled after five minutes rest.
185	The plaintiff also complained of restricted motion of the left wrist in all directions, which prevented him from waving.  He had diminished grip strength, which was due to loss of power and discomfort.
186	The plaintiff denied any sensory loss on the right side and was unaware of any swelling or crepitus at the wrist.  He also had volar radial pain in the right wrist, which was less severe in intensity, however, it occurred more frequently and was provoked by using heavy power tools which he tended to lift with his right hand since the left was more symptomatic.  
187	Pain came on after three to four hours of normal work and dissipated after five minutes of rest. He also complained of diminished motion in all directions at the right wrist and diminished grip strength.
188	The plaintiff was engaged in a carpentry apprenticeship at the time of the injury.  He took a year off work and was unable to continue with his carpentry apprenticeship.  
189	In January 2020, he recommenced work as an apprentice cabinetmaker.  He participated in nearly all tasks apart from lifting heavy particle board sheets, which could weigh up to 20 kilograms, for which he required assistance.  He had not lost any time off work from his carpentry apprenticeship due to wrist symptoms.
190	The diagnosis was bilateral wrist dysfunction due to traumatic arthritis following intra-articular distal radius fractures on both wrists treated surgically. This had resulted in restricted motion and pain in both wrists. The work injury continued to be a material and significant contributing factor to the plaintiff’s condition.
191	The imaging study reports were consistent with the plaintiff’s current restricted motion at both wrists and symptoms.  He found no inconsistencies with the examination findings.
192	Since hand therapy measurements taken in November 2019, the plaintiff’s grip strength had improved on both sides and was more consistent on the right side. However, both range of motion at the forearms and wrist had considerably reduced.  The change was due to early onset of traumatic arthritis at the wrist joints. He believed the changes in measurement from November 2019 to November 2021 were consistent with the progressive degenerative nature of the condition, particularly due to the intra-articular nature of the fractures.
193	Prognosis for further improvement was poor and likely the condition would progress requiring a form of salvage surgery at the radiocarpal joints to control pain which was likely to result in further loss of motion.
194	In relation to working capacity, the plaintiff was not capable of returning to his pre-injury job as an apprentice carpenter, nor would he be capable of working as a fulltime qualified carpenter.  He had a weight lifting capacity of 15 kilograms and required rest periods to do his current job as a cabinetmaker, which the plaintiff described as far less physically demanding than his work as a carpenter. His working restrictions were permanent.
195	In terms of job of traffic controller, he thought the plaintiff was capable of 95 per cent of the requirements of this job description. He did not comment on what was involved but had been provided with a 2019 Transferable Skills analysis which set out the functional requirements of this role in general terms.  
196	He thought the plaintiff was capable of working as a picker/packer provided the items to be picked and packed did not exceed two kilograms.
Dr Richard Prytula, consultant psychiatrist
197	Dr Prytula assessed the plaintiff on 10 November 2020 via Zoom.
198	The plaintiff told him that he got angrier at little things following the incident. He also became anxious near ladders. These appeared to be signs of a low level of traumatisation from the incident. 
199	The plaintiff had been working for about 11 months as a fulltime apprenticeship cabinetmaker.  He enjoyed this work and he had a capacity for the work.
200	The plaintiff found that he forgot some things related to the incident but his concentration was generally reasonable.  Sleep was normal but sometimes he had frightening dreams about the incident.  His irritability was mild, but he was not fatigued.  He was sometimes more emotional and grumpier than usual.  He had now developed a stutter.
201	On mental state examination, the plaintiff presented as pleasant and cooperative and gave a clear and direct history. His mood was generally within the normal range but he referred to increase in troubling dreams, apprehension around ladders and some images coming back to him of the incident, however, these symptoms were of low level severity.
202	Dr Prytula diagnosed a mild Adjustment Disorder with anxious mood and very mild features of traumatisation as a consequence of the plaintiff’s injury, secondary to his physical condition. The condition would remain at chronically low level and adversely influenced by any increase in pain or restriction.
203	The plaintiff was working fulltime for almost a year in a satisfactory situation and had a capacity to continue to do this. Prognosis was for a likely gradual continual improvement back to normal health.
Surveillance film
204	There was 8 minutes and 25 seconds of surveillance film taken on 31 August, 2 September and 17 September 2023.
205	The 31 August 2023 film commenced at 6.44am.  The plaintiff was shown in his work gear getting into his ute truck.  He was sitting stationary for a few minutes before driving off. It was an automatic car which he used for daily driving.  He had the vehicle when he was doing cabinetry work.
206	At approximately 7.17am, he exited the vehicle with his duffel bag and headed into work.  At 9.40am, he was shown walking into a petrol station and getting into a large Crown Posture Bedding truck.  At 10.18am, he made a delivery.  He was able to close the back truck doors. He did not appear to be lifting furniture or bedding.
207	Film on 2 September 2023 commencing at 11.34am showed the plaintiff again getting into his ute truck and driving off.
208	Film on 17 September 2023 commencing at 1.18pm showed the plaintiff at home getting into a vehicle with his parents and little sister.  They were next shown entering a gaming arcade.  The plaintiff was playing various games by himself and with his little sister.
209	At 1.46pm, the plaintiff was playing arcade air hockey with his little sister.  He held the disc with his left hand to hit the disc back and forth to his sister.  The film shows him playing the game continuously for about two to three minutes.  
Recovre Vocational Assessment
210	Robyn Willett from Recovre provided a report in May 2023 which included a labour market analysis report setting out the wages that could be expected for a full time position as a retail worker in the motor vehicle and/or spare parts industry, mechanical assistant performing work like suspension fitting, machine operator in the construction materials industry, picker/packer and truck driver.
CFMEU 2023 EBA Wages for Traffic Control
211	The hourly rate for a Traffic Controller with less than 6 months experience is $48.93 or $1,761.48 for a 38 hour week. For over 6 months experience, the hourly rate is  $50.50 or $1,818 per week. 
212	On an annual basis, the earnings for a Traffic Controller under 6 months is $91,596 and over 6 months is $94,536 
213	 If you added travel allowance of $52,50 per day or $262.50 per week (as Flexi did in relation to the carpenters job) the weekly figure for a traffic controller with less than 6 months experience is $2,023,98 or more than 6 months, $2,080.50 per week. The annual figure on that basis for less than 6 months is $105,246 (70% of $150,000) and more than 6 months $108,186 (72% of $150,000) 
Overview
214	Pain and suffering having been conceded, the only issue for determination is whether the plaintiff can satisfy the economic loss provisions relevant to a worker injured when under 26. The defendant focussed mainly on the role of traffic controller, which it submitted was within the scope of the plaintiff’s capacity and would satisfy the more than 60 per cent threshold. 
215	As the plaintiff was under 26 at the time of injury, the formula in Section 325 (2)(f) does not apply. 
216	This means that the Court “may have regard to the probable income from personal exertion which the plaintiff would have earned but for the injury over the worker’s probable earning life. This means, the usual common law position prevails.”  
217	In Heydon JA (as he then was) in State of New South Wales v Moss set out the applicable principles applicable concerning loss of earning capacity damages.
218	These principles included inter alia:
•	the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss.  It is an issue of calculating the damage to a capacity to carry on various careers.  It is an exercise in estimation of possibilities, not proof of probabilities;
•	the task of the [court] is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.
219	The defendant’s case focussed on what was claimed to be the plaintiff’s ability to work as a traffic controller and in that role, earn more than 60 per cent of what he would earn as a qualified carpenter. 
220	In my view, that approach was too narrow and involved mathematical calculations not relevant to the common law analysis required.
221	In any event, I do not accept that the plaintiff has the capacity to work full time on a permanent basis as a traffic controller.
222	While he completed the traffic controller course in 2019, save for the first aid certificate, and was then ready to take on this role, his wrist condition has deteriorated since that time, as he explained.  He would have tried the role then but is unable to do it now as “things have changed,” particularly his ability to turn traffic signs. He has never attempted to work in that role. 
223	Consistent with the worsening in his condition, it is significant that in late 2019 when he completed the traffic controller course, the plaintiff was still trying to get back to gridiron and had tried to play three games. This attempt was short lived, and he has not returned to any involvement in that sport.
224	As Dr Ireland explained in November 2021, the plaintiff’s wrist condition is of a progressive nature particularly due to the intra articular nature of the fractures and future surgery is likely.
225	I do not accept because the plaintiff was able to play air hockey for a couple of minutes “accommodating” his wrist by using his whole arm to hit the disc that he could “accommodate” his wrists to such an extent that he would be capable of working full time in a traffic controller role - standing on the roadway, facing the traffic and twisting signs repeatedly, moving and setting up equipment. 
226	The plaintiff’s explanation about the difficulty turning his wrists to display the signs was quite a plausible one and that could be said from common experience when looking at how a traffic controller operates on the roadway.
227	While Mr Dooley thought the plaintiff would be capable of performing 95 per cent of that role, he did not comment specifically on the tasks involved, despite having been sent some documentation in this regard. Significantly, he did say the picker packer role would be suitable for the plaintiff if he was not required to lift in excess of 2 kilograms. One would expect in the traffic controller role, the plaintiff would be required to lift and manoeuvre items like traffic signs which would weigh in excess of this amount.
228	There is little detail of what that role actually requires. There is no current vocational assessment or job description one might expect if the defendant’s case is that this role would defeat the plaintiff’s economic loss claim.
229	While the Act requires the appellant to prove on the balance of probabilities that he has suffered the requisite loss, in Giankos v SPC Ardmona Ltd, the Court held it is incumbent on the defendant if it wants to identify something as being suitable employment, to produce evidence before the Court.
230	In the present application, having suggested the role of traffic controller, the defendant bore the evidentiary burden to adduce evidence of the suitability of this role for the plaintiff. As there was no current job description or vocational assessment, I am not satisfied the defendant has discharged this onus.
Common law principles
231	The plaintiff is still a young man who has lost any hope of obtaining a trade. Initially, his interest was carpentry and later his attempts at cabinet making also failed because of his very significant wrist injuries.
232	The consensus of medical opinion is that the plaintiff has lost his trade and also the ability to do any heavy physical work.
233	Had he qualified as a carpenter, the plaintiff would have had the capacity to earn in the range of $150,000 per annum, as Mr O’Hearn confirmed. His evidence in this regard was unchallenged. The plaintiff on that basis had a significant earning capacity but for his wrist injury.    
234	The plaintiff now faces significant difficulty getting work on the open market because of his wrist impairment. The range of suitable jobs is significantly limited for an uneducated man with poor learning skills as Dr Horsley described in some detail and the neuropsychologist found on testing.
235	As Dr Slesenger commented in March 2023, the plaintiff had been fortunate to obtain secure employment and appeared to be working in a supportive environment. He would have difficulty securing similar arrangements as a truck driver in an open job market.
236	As counsel for the plaintiff submitted, the plaintiff’s history since the injury shows exactly the sort of employment volatility he is going to be exposed in the future. He has tried various things, another apprenticeship, three other jobs.  He stopped them for various reasons, not all related to his wrists, but due to the general volatility in the labour market which he is going to have to deal with going forward as a man who cannot do heavy manual work with his level of education and experience.
237	The plaintiff is a relatively uneducated, unsophisticated man. He will face the usual prejudice an injured person faces when seeking work. His limited education and comprehension skills will work against him. He is restricted to light physical work with this impairment. 
238	As counsel for the plaintiff submitted, what is the chance of a plaintiff realistically going for a job and saying, ‘I can almost do all of it but because of my wrists I cannot do various bits and then be likely to be offered the job’. As Judge O’Neill stated in Berthelot, one of the considerations was the plaintiff would continually present to employers as someone with a history of injury and having to confess to their limitation.
239	The plaintiff’s capacity for employment in the open job market is significantly reduced because of his bilateral wrist impairment. His post incident employment has largely been in supportive work places, ones not readily found in the open labour market, and even then, he has struggled with various levels of manual work.   
240	As counsel for the plaintiff conceded, pre incident, given his learning difficulties, to be fair it was unlikely the plaintiff was going to be able to run his own business, but there was nothing that would have stopped him working full-time as a carpenter for someone else, as Mr O’Hearn explained.
241	I accept that the plaintiff is absolutely doing the best he can in a difficult situation and will suffer a 40 per cent loss of his capacity to earn income on a permanent basis with the serious restrictions he faces.
242	While it is impossible to impose any precise mathematical formula to this assessment, I am satisfied that as a result of his wrist impairment, involving lack of strength, pain and difficulty with fine motor movements in both hands, to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
243	Taking into account all the evidence, I am satisfied the plaintiff has established the requisite loss on a permanent basis.
244	Accordingly, I grant leave to bring proceedings for damages for loss of earning capacity.  
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