IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List		

Case No. CI-20-01458

CHRISTOPHER JOSEPH DE BONO	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	HIS HONOUR JUDGE CARMODY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	3 and 4 March 2021 (via Zoom technology)	
DATE OF JUDGMENT:	2 June 2021	
CASE MAY BE CITED AS:	De Bono v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2021] VCC 695		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords: 	Serious injury – injury to spine – pain and suffering damages – loss of earning capacity – whether the plaintiff has satisfied the statutory test of 40 per cent loss of earning capacity – plaintiff was under twenty-six years of age at the time of injury – concession by defendant that the plaintiff is entitled to be granted leave to commence proceedings for damages for pain and suffering
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013, s325 and s327 
Cases Cited:	State of New South Wales v Moss (2000) 54 NSWLR 536 
Judgment:	Leave granted to the plaintiff to bring proceedings to recover damages for both pain and suffering and loss of earning capacity from the defendant arising from the injury to his spine suffered at his place of employment on 1 July 2016.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr C O’Sullivan with 
Mr A Coote	Maurice Blackburn Lawyers	
			
For the Defendant	Mr G Coldwell	Hall & Wilcox	

HIS HONOUR:

1	This proceeding is an application brought by Originating Motion dated 1 April 2020, where the plaintiff applies for leave pursuant to s325 and s327 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of an accident which occurred at his employment with DJS Plumbing Group Pty Ltd on 1 July 2016.  The plaintiff alleges that during the course of his employment he injured his spine.  The injury to the plaintiff’s spine occurred on 1 July 2016.
2	The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages.  At the time of the injury, the plaintiff was twenty-one years old.
3	The following evidence was adduced or tendered during the hearing:
•	The plaintiff gave evidence and was cross-examined.
•	The plaintiff tendered the following documents:
•	Exhibit “A” – the Plaintiff’s Court Book (“PCB”) pages 3 to 8; pages 19 to 76, pages 81 to 98, and pages 150 to 159.
•	The defendant tendered the following documents:
•	The Defendant’s Court Book (“DCB”) pages 4 to 30 and pages 40 to 56.  
4	The parties also, by agreement, tendered a summary of payslips relative to the plaintiff’s work at the Epping Plaza Hotel and Highline Caravans.  The summary of the plaintiff’s earnings in respect to both of these employers was derived from his payslips and taxation returns for the relevant periods.
5	At the commencement of the application, Mr Coldwell, counsel for the defendant, stated that it was conceded that the plaintiff was entitled to a serious injury certificate in respect of pain and suffering arising from the injury to his spine in the course of his employment.
6	Mr Coldwell went on to state that the following areas of dispute:
(a)	the defendant conceded that the plaintiff had no work capacity from September 2016 to 2 May 2019, when the plaintiff’s general practitioner cleared him for suitable employment; and
(b)	the main issue in this application is that the plaintiff has not suffered a permanent loss of earning capacity to the extent of 40 per cent or more.
The Statutory scheme
7	The defendant has conceded a serious injury certificate to the plaintiff for pain and suffering damages arising out of his work accident which occurred on 1 July 2016.
8	The relevant legislation relating to the plaintiff’s claim for loss of earning capacity is set out in the Act.  In s325(2)(e)(i) and s325(2)(e)(ii), a worker under the age of twenty-six years at the date of injury must still establish that he or she has a loss of earning capacity of 40 per cent or more and that that loss of earning capacity will continue into the foreseeable future.
9	As the plaintiff was under twenty-six at the date of injury, his loss of earning capacity is not measured by comparing his income from personal exertion for the three years before and the three years after his injury. The statutory prescriptions of measuring the loss of earning capacity set out in s125 (2)(f) is not relevant in this proceeding.  
10	The calculation of 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.
11	A summary of these principles is as follows:
(i)	evidence of past economic loss is some, though not conclusive, of reduced earning capacity;
(ii)	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 have earned after it;
(iii)	in a case where the plaintiff has suffered a significantly disabling injury which affects the range and nature of the work he can perform, the Court can, without specific evidence of what other persons with this kind of disability can earn, make a judgement and assessment on a percentage basis, or otherwise, of the value of loss of capacity;
(iv)	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;
(v)	the mere fact that the quantum of damages is difficult to assess does not mean the plaintiff is only entitled to a nominal sum; and
(vi)	the task of the tryer of fact is to perform a discretionary judgement by reference to not wholly determinative criteria within fairly wide parameters or fairly broad parameters.
12	I am required to apply the above principles when assessing the plaintiff’s loss of earning capacity as a result of the injury to his spine in the relevant work accident.
The Plaintiff’s background
13	The plaintiff was born in 1995 and at the time of hearing was twenty-five years old.
14	The plaintiff completed Year 12 at school.  He then completed a six-month pre-apprenticeship course.  At the completion of that course, he commenced a plumbing apprenticeship with DJS Plumbing Group Pty Ltd.  He commenced his work with that employer on 21 October 2015 and was employed full time as an apprentice plumber.
15	On 1 July 2016, the plaintiff was injured in the course of his employment with DJS Plumbing Group Pty Ltd.  The plaintiff initially attended Kilmore Hospital and then the Northern Hospital.  He then consulted his general practitioner.  On 11 July 2016, the plaintiff returned to work on light duties.
16	In September 2016, the plaintiff ceased work as he was unable to cope with the light duties.  In late September 2016, the plaintiff consulted Mr John Cunningham, orthopaedic surgeon, who referred him for an MRI scan of his lower back.
17	In 2017, the plaintiff underwent a pain management program.  In the course of that program he underwent two epidural steroid injections; in June 2017 and September 2017.  The plaintiff’s condition did not improve, and the medical recommendation was for surgery to his lower back.
18	On 26 November 2018, the plaintiff underwent anterior lumbar interbody fusion to his lower spine.  The plaintiff underwent rehabilitation under medical advice.  In May 2019, the plaintiff had his final check up with Mr Cunningham.
19	In July 2019, the plaintiff commenced work as a casual employee at the Epping Plaza Hotel.  He continued his work with the Epping Plaza Hotel until the COVID‑19 restrictions forced the hotel to close in March 2020.
20	The plaintiff then commenced work at Highline Caravans in September 2020.  The plaintiff was continuing to work at Highline Caravans as at the time of the hearing of this application.
21	The parties agreed that the summary of the plaintiff’s payslips in respect of Epping Plaza Hotel indicated that the plaintiff worked an average of thirty-one hours per week and the plaintiff’s average gross income from that work was $1,050 per week. 
22	The plaintiff’s income from Highline Caravans was agreed between the parties as revealing that his average hours per week were 48.75 hours.  His average gross weekly pay from Highline Caravans was $1,407.  I note that the plaintiff was effectively doing eleven hours’ overtime at Highline Caravans on an average basis.
23	It was clear from the evidence of the plaintiff, and all of the medical opinions, that the plaintiff is a very motivated and genuine worker.  Despite his very serious injury, he has adapted and continued to work in a light type of employment in order to maximise his gross income.  The employment at Highline Caravans involved him working extensive periods of overtime.  The plaintiff stated, in the course of his evidence, that when he worked long periods of overtime he would have to go home and lie down.  I accept that observation by him is genuine.
24	The plaintiff’s work at Highline Caravans was obtained through a personal contact.  It is not a case where he is a protected worker, but his ability to work is limited to light manufacturing-type employment.  The plaintiff stated that he was unable to sit for any lengthy period of time.  The plaintiff stated that he was getting really stiff after sitting for a period of time.  In the course of argument in this case, it was suggested that the plaintiff was able to become a train driver.  The plaintiff answered this by saying that, as a train driver, he would be required to sit for periods of four hours at a time.  He was unable to sit for that time.  I accept the plaintiff was genuine in that response, as he is a person who would, in my assessment, attempt to maximise any income he could make, given his disability.  The train-driving occupation was not a viable alternative for him.
Injury with the Employer
25	The plaintiff, in his affidavit dated 19 November 2019, set out the circumstances of his injury.  He stated as follows:
“On 1 July 2016 I was working at a building site in Croydon.  I was working high off the ground installing a suspended sewer. Whilst climbing over a timber wall to get onto scaffold, a piece of the timber wall came away whilst I was holding it.  I fell backwards.  I struck my jaw against the scaffold and continued falling to the ground where I landed on some pieces of timber.  I was winded and immediately felt severe pain in my low back and down my left leg.  I also had severe pain in my jaw and noticed it was dislocated.  I put my jaw back into place.”
26	The plaintiff went on to say that he continued at work but was unable to finish the day because he was in too much pain.  He went to the Northern Hospital and had radiological scans to his back on the day of injury. 
27	The defendant accepts the circumstances of the accident as described by the plaintiff in this case.  
Medical treatment
Dr Nidham Oda, general practitioner 
28	The plaintiff initially saw his general practitioner, Dr Nidham Oda.  In his report dated 26 February 2018, Dr Oda stated that the plaintiff first consulted him on 4 July 2016 with multiple bruises and pain over his lower back, legs and neck.  There was a notation that the plaintiff had dislocated his jaw in the fall at work on 1 July 2016.  Dr Oda stated that the plaintiff had initially gone to the Northern Hospital and had scans done to his lower back.
29	In his report dated 18 April 2019, Dr Oda stated that the plaintiff had no capacity for work.  He stated the plaintiff may be fit for light or alternative duties within a two-month period.
Mr John Cunningham, orthopaedic spine surgeon
30	Mr Cunningham prepared two reports, dated 2 April 2018 and 5 April 2019.  Mr Cunningham sets out how he first examined the plaintiff on 29 September 2016.  Mr Cunningham ordered an MRI examination of the plaintiff’s spine, which was performed on 11 October 2016.  In May of 2017, the plaintiff was still complaining of left leg symptoms and a further MRI scan was performed on 26 May 2017.
31	On 28 June 2017, Mr Cunningham organised for an epidural steroid injection to be performed on the plaintiff.  A second epidural injection was performed on 19 September 2017.
32	By the time the plaintiff attended Mr Cunningham on 12 October 2017, the plaintiff had undergone an entire year of physiotherapy and rehabilitation but had not shown any signs of improvement.
33	On 26 November 2018, the plaintiff underwent an anterior lumbar interbody fusion at the Epworth Hospital.  Mr Cunningham’s opinion was as follows:
“I believe that your client will return to employment.  I would not recommend him to be working in a role which involved repeated bending, lifting and twisting.
Christopher has approximately a fifteen to twenty percent chance of adjacent segment degeneration and further surgery in the future.”
34	It is clear from the treating orthopaedic surgeon’s reports that he expects the plaintiff to have ongoing problems with his lower back despite the good recovery to date. The plaintiff’s future includes the prospects of further surgery to his back. 
Dr Hazem Akil, neurosurgeon
35	Dr Akil prepared a report dated 14 July 2020 for the purposes of this application.  In his report, Dr Akil noted that the plaintiff had discogenic pain aggravated by the fall from height.  His opinion was that the symptoms had stabilised, but the plaintiff has residual symptoms and that the prognosis is guarded.  In Dr Akil’s opinion, the plaintiff should refrain from doing physically-demanding employment like his previous employment as a trainee plumber.
36	Dr Akil stated as follows:
“… In my opinion, he should be able to perform employment that requires him to alternate between sitting and standing.  I do not believe that any employment should include repetitive bending of his back or repetitive pulling, pushing, or lifting heavy object.
 …
 In my opinion, the incapacity for physical type of employment like plumbing is permanent.
 In my opinion, his prognosis is guarded.”
Dr Robyn Macbeth, occupational and environmental physician
37	Dr Macbeth prepared a report dated 21 December 2020 for the purposes of this application.  At the time of her examination of the plaintiff, he was working very long hours at Highline Caravans.  In the four-week period between 25 November and Christmas, the plaintiff was working approximately sixty-four hours a week.  It was at this time the plaintiff was examined by Dr Macbeth.  She noted in the history as follows:
“• 	He had been working 12 hours per day, and he is currently working 10 hours per day, and working about 60 hours per week.
 •	He has only worked one 8 hour day since he started the job.
 • 	Mr De Bono has been struggling to work long hours, and he has informed his boss about this, and his boss told him that he will only need to work long hours for a short period.
 •	At the end of his work day, his back is very painful and stiff, which affects his walking, and he needs to stretch his back, take Panadol, and lay down after work to relieve his symptoms.
 •	Mr De Bono is hopeful that he will be able to reduce his overtime hours next year…”
38	This history taken by Dr Macbeth is consistent with the plaintiff’s evidence that he was not able to continually work such long hours in the job at Highline Caravans.
39	Dr Macbeth set out her prognosis in the following terms:
“It is evident that Mr De Bono’s persistent lower back pain and lumbar spine dysfunction have failed to resolve with surgical intervention on 26 November 2018, in the form of an L5/S1 anterior lumbar interbody fusion. In my clinical opinion, given the chronicity of Mr De Bono’s chronic lower back pain, and lumbar spine dysfunction, it is likely that he will continue to experience persistent pain, as well as dysfunction. for the foreseeable future.”
40	Dr Macbeth set out the restrictions that she thought appropriate for the plaintiff in his current full-time manufacturing role as the following:
“•	Mr De Bono will need to alter his posture as often as required to prevent static spinal postures.
 •	He will need to alter his posture as often as required according to his level of pain.
 •	Self-paced work duties to be performed between shoulder and waist height.
 •	No manual handling, lifting, pushing, and pulling greater than 5kg at waist height.
 •	No repetitive manual handling, lifting, pushing, pulling, and forward reaching.
 •	Avoid bending/leaning forward, stooping, and rotation of his spine.
 •	Sitting, standing, and walking within his tolerance level.
 •	No climbing ladders.
 •	No working at heights
 •	Provision of an ergonomic workstation.
 •	Provision for rest breaks when required to assist with pain management.
 •	Full-time work hours, maximum of 38 hours per week.”
41	In conclusion, Dr Macbeth set out that, in her clinical opinion, the plaintiff could not return to full-time unrestricted work in his pre-injury position of employment when considering his back injury alone.  In summary, Dr Macbeth’s opinion was that the plaintiff could never return to plumbing work.
Dr Umberto Boffa, occupational physician
42	Dr Boffa prepared two reports, dated 31 January 2020 and 12 December 2020.  Dr Boffa noted the plaintiff is fit for pre-injury hours, but not for pre-injury duties.  In other words, Dr Boffa accepts that the plaintiff could not return to plumbing work.  In Dr Boffa’s opinion, he stated as follows:
“The worker remains physically fit for fulltime account manager, customer service, contract administration and workflow scheduler roles listed in the attached report with re-training required and now also for the sales representative role provided driving is metropolitan and not regional.”
43	I note here that Dr Boffa was limiting the amount of driving that the plaintiff could undertake in any role of employment.  The full-time account manager position and contract administration role require considerable retraining for the plaintiff. There was no evidence to support his capacity to engage in the necessary training or study. 
Mr Roy Carey, consultant orthopaedic spine surgeon
44	Mr Carey prepared a report for the defendant dated 27 January 2021.  Mr Carey described the plaintiff as a pleasant and direct witness to his problem.  In Mr Carey’s opinion, the plaintiff had suffered a significant injury at work and had done extremely well following an L5-S1 anterior lumbar interbody fusion.  Mr Carey noted that the plaintiff –
“… still has ongoing symptoms and limitations, but is now in gainful employment full-time, and taking no substantial medications.”
45	Mr Carey volunteered that the plaintiff –
“… does not however have any non-organic signs of abnormal illness behaviour on examination today.”  
46	In Mr Carey’s opinion, none of the activities of plumbing work were to be recommended for the plaintiff.  He noted, however, the plaintiff did have the capacity to perform work, as he was employed full time as a caravan builder.  
47	Mr Carey noted as follows:
“However, there is a significant chance of adjacent segment degeneration at L4/5, with the junction between the fusion and the mobile spine being a stress riser.
Adjacent segment disease (i.e. suffering from the results of this degeneration) is less predictable – an informed guess of about 10% at 10 years, requiring further treatment up to and including further surgery at L4/5 could be expected.”
48	It is clear from Mr Carey’s report that he assessed the plaintiff as genuine and forthright in his description of his difficulties arising from the injury to his spine.  It is also clear that, in Mr Carey’s opinion, the plaintiff could not return to his previous occupation as a plumber.  Mr Carey also anticipates that the plaintiff will have, in the future, as soon as ten years, the risk of further surgery to his back.  In this case, the plaintiff had his first operation at the age of twenty-three-and-a-half.  The potential for a second operation in his mid-thirties is a very serious consideration in respect of plaintiff’s future employment capacity.
Analysis
49	In this case, the medical evidence is agreed that the plaintiff is unable to resume his pre-injury occupation of being a plumber.  At the time of the injury, the plaintiff was an apprentice plumber.  It is clear from the plaintiff’s history of employment, both prior and subsequent to his injury, that he was a very motivated and genuine worker.  I accept the plaintiff’s evidence that he has worked much longer hours than the conventional thirty-eight hour week, but as a result suffered from pain and stiffness due to his injury.  I do not accept that it is feasible for the plaintiff to continue to work extended hours of forty-five to sixty hours per week into the future.  
50	The appropriate way to assess the loss of income-earning capacity for the plaintiff is to base it on the appropriate hourly rate for a plumber as a pre-injury basis for income.  The contrast for that would be the hourly rate for his current employment of caravan manufacturing.
51	The evidence in this case is that, as at the date of hearing, the base rate for a plumber is $51.82 gross per hour.  The figure of $51.82 is a base rate on a thirty-six hour week.
52	An analysis of the plaintiff’s earnings at Highline Caravans would commence with the average gross weekly pay of $1,407.87.  The plaintiff worked an average of 48.75 hours to achieve that income. The hours worked, and income calculate to a figure of $28.86 per hour as a caravan worker.  This figure of $28.86 an hour includes, obviously, periods of overtime payment, which were not set out in any of the agreed figures.  The $28.86 is a figure which would mean the plaintiff has suffered a greater than 40 per cent loss of earnings on the base plumber rate of $51.82 an hour.
53	In this case, it was suggested that the plaintiff could undertake a role of a train driver.  I previously referred to this potential employment in these reasons but note that the plaintiff would be unable to fulfil the role. He could not remain seated for a period of four hours, as was set out in the evidence from the plaintiff as a requirement for train driving.  The role of train driver is beyond his physical capacity.  
54	The plaintiff was also cross-examined about being an accounts manager and other similar occupations.  The period of study that would be required to have the plaintiff qualified for such a role was not fully defined, nor was it fully explored as to the income that would result from such an occupation.  It was also assumed that the plaintiff would be able to undertake such work, including the relevant sedentary nature requiring someone to be seated for an extended period of time.
55	I am satisfied that the plaintiff’s future employment prospects are limited to light manufacturing work similar to the work he undertakes now at Highline Caravans; alternatively, in the hospitality industry as a barman or bar manager.
56	If the plaintiff was not injured, given my assessment of his motivation to work and dedication to his work, the plaintiff was someone who could have achieved a significant level of employment as a plumber and indeed, may well have run his own plumbing company in the future.  
Conclusion
57	I accept, based on the medical evidence in this case and the plaintiff’s evidence in relation to his ongoing employment and income-earning capacity, that he has satisfied the statutory test of suffering a loss of earning capacity of 40 per cent or more into the future.  I am satisfied that this is for the foreseeable future for the plaintiff, based on the prediction by the medical examiners that the plaintiff will be at risk of further back surgery in the future.
58	I grant leave to the plaintiff to bring proceedings for common law damages in respect of pain and suffering and loss of earning capacity as a result of the injury he received at his work on 1 July 2016.
59	I will hear the parties on costs.
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