PLAINTIFF SEEKS FOR PECUNIARY LOSS DAMAGES FOR THE INJURY HE SUSTAINED AT WORK

Walters v VWA [2020] VCC  1716 (30 October 2020)

This case involves the plaintiff alleging that he sustained serious injury while working resulting to pecuniary loss entitling him to claim for damages.

Facts:

In May 2015, the plaintiff  was transferring a microwave from a stack on the ground to place it on a flatbed trolley when he twisted and injured his back. Immediately he experienced severe low back pain. He attended a chiropractor and was told to take a day off.

The plaintiff  was ultimately dismissed from his employment in February 2018 for conduct. They were not high-end conduct issues but appear to have involved the plaintiff’s attitude, behaviour and punctuality. Whilst still in The Good Guys’ employ, the plaintiff  was taking antidepressant medications.

The plaintiff seeks to bring proceedings for pain and suffering and for pecuniary loss damages in accordance with the provisions of s.335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 for injuries occasioned to the function of the spine.

Defendant  made a series of submissions. First, it was submitted that the plaintiff must establish a loss of earning capacity as at the date of hearing and into the future. Such a finding can only be made on the basis of the existence of some evidence before the Court to enable that exercise to be undertaken, such as the plaintiff's career trajectory and a projected loss of earnings but for the happening of the injury. Second, no such evidence was adduced. Third, Ms Cooper relied on the fact of the plaintiff  working full-time hours with, according to Ms Hewitt, a capacity to accrue significant time in lieu of pay. Fourth, the plaintiff  is earning more than he was before his injury. Fifth, there is no evidence before the Court that, but for this injury, the plaintiff  would be earning more than he is currently.  Sixth, there is no evidence that the plaintiff  would have gone on to do something that was more financially productive than what he is doing presently.

Issue: Is the plaintiff entitled to damages for the pecuniary loss in accordance with the Workplace Injury Rehabilitation and Compensation Act?

Law:

• In order to establish an entitlement to commence proceedings for pecuniary loss damages, the plaintiff must satisfy the provisions of  s325(2)(e)  of the Act.  As the plaintiff  was under 26 years of age at the date of injury, the usual common law position applies in determining whether or not the plaintiff  has established a loss of earning capacity of 40 per cent or more in accordance with s325(2)(e).

Analysis:

There is no evidence at all of future earnings or of a career path for the plaintiff. The court is satisfied that the plaintiff  has retained a capacity to engage in various forms of work, including the type of work in which he is now engaged.  The court is not persuaded that there has been demonstrated a loss of earning capacity productive of a financial loss of 40 per cent or more.

In summary, the court finds that the plaintiff has failed to discharge the burden of proof which he carries in relation to the operation of  s325(2)(e)  and generally.

Conclusion: The plaintiff’s application is dismissed.

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