IN THE COUNTY COURT OF VICTORIA Revised AT MELBOURNE … · VCC:AS/LM/AS 2 JUDGMENT McLennan v McConachy Roofing Pty Ltd 7 At the time of the incident, Mr McLennan was a qualified

COUNTY COURT OF VICTORIA 250 William Street, Melbourne

!Undefined Bookmark, I

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

Revised Not Restricted

Not Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-15-05792

CHRISTOPHER CHARLES McLENNAN Plaintiff v McCONACHY ROOFING PTY LTD (ACN 084 455 934)

Defendant

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JUDGE: HIS HONOUR JUDGE O’NEILL

WHERE HELD: Melbourne

DATE OF HEARING: 24 October 2016

DATE OF JUDGMENT: 22 November 2016

CASE MAY BE CITED AS: McLennan v McConachy Roofing Pty Ltd

MEDIUM NEUTRAL CITATION: [2016] VCC 1734

JUDGMENT

--- Subject: ACCIDENT COMPENSATION Catchwords: Serious injury application – injury to right wrist – resultant Depressive

Disorder – pain and suffering consequences conceded – whether 40 per cent loss of earning capacity – assessment of “without injury” earnings – whether consequences “for the foreseeable future”

Legislation Cited: Accident Compensation Act 1985, s134AB Cases Cited: Barwon Spinners & Ors v Podolak [2005] VSCA 33; Nicholson v

Victorian WorkCover Authority [2016] VSCA 146; Harris v DJD Earthmoving [2016] VSCA 188; Boskovic v Road Maintenance Pty Ltd [2006] VCC 51; Alter v Alcon Laboratories (Australia) Pty Ltd [2008] VCC 713; Guthrie v Campion Education (Aust) Pty Ltd [2009] VCC 1141; McLaren v Dubbo Glazing Services [2009] VCC 526

Judgment: Leave granted. ---

APPEARANCES:

Counsel Solicitors

For the Plaintiff Mr J Richards QC with Ms M Tait

Zaparas Law

For the Defendant Mr J Gorton QC with

Ms S Goldberg Wisewould Mahony

VCC:AS/LM/AS 1 JUDGMENT

McLennan v McConachy Roofing Pty Ltd

HIS HONOUR:

Preliminary

1 The plaintiff, Mr McLennan, suffered an injury to his right wrist on 28 September

2011 when the ladder on which he was working collapsed, and he fell to the

ground. Early x-rays failed to pick up any fracture, and it was not until

November 2011 that a fracture to the scaphoid bone of his right wrist was

detected.

2 Mr McLennan has undergone six operative procedures to the wrist, but none

have resulted in a resolution of the fracture, and he has been left with non-union

of the scaphoid. He has suffered a reactive depressive condition.

3 This is an application for leave to bring proceedings pursuant to s134AB(16)(b)

of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the

course of Mr McLennan’s employment with the defendant on 28 September

2011.

4 The body function said to be lost or impaired is the right wrist. In addition, Mr

McLennan claims to have suffered a permanent severe mental disorder in the

nature of a Major Depressive Disorder; alternatively, a Post-Traumatic Stress

Disorder; alternatively, an Adjustment Disorder with Anxiety and Depressed

Mood.

5 The application is thus brought under ss(a) and ss(c) of the definition of “serious

injury” contained in s134AB(37) of the Act and leave is sought in respect of pain

and suffering and loss of earning capacity.

6 Mr Gorton, for the defendant, appropriately conceded at the outset that the pain

and suffering consequences suffered by Mr McLennan achieve the “very

considerable” test imposed by the Act. The application is thus only contested

in respect of loss of earning capacity.



7 At the time of the incident, Mr McLennan was a qualified plumber and, according

to WorkCover Claim Forms, earning $1,500 gross per week. He was off work

for a few days and then returned for seven or eight weeks. He left in November

2011 and has not worked since. The defendant submits that, while Mr

McLennan does not have the capacity to return to work as a plumber, there are

a range of alternative areas of employment available to him.

8 The plaintiff and his treating psychologist, Ms Graham, were the only witnesses

called to give evidence and be cross-examined. In addition, his affidavits,

medical and radiological reports, vocational reports and clinical notes were

tendered into evidence. I shall not refer to all of this material in the course of

this judgment but rather those parts of the evidence and reports which appear

to me to be most relevant and which I have relied upon in coming to the

conclusions referred to later in this judgment. The statutory scheme set forth in

the Act which prescribes and regulates applications of this nature, and the

principal authorities of the Court of Appeal, are well known, and it is

unnecessary for me to revisit the various relevant sections and those

authorities.

Relevant background

9 Mr McLennan was born in 1984. He was twenty-six at the time of the incident

and is now thirty-one.

10 He completed high school, including his HSC. He worked in retail shops while

at school and as a process worker for a period. In 2005, he commenced a

plumbing apprenticeship, which he completed in November 2010.

11 He was involved in a car accident in 2005 and suffered neck pain. He fell from

a ladder at work in 2009 and hurt his back. Those injuries did not prevent him

from working full time as a plumber, and are of no real significance.

12 He suffered some psychological difficulties in 2008 following a breakdown of a



relationship, and was prescribed antidepressant medication. He said that made

him feel “foggy and disorientated”, and led him to be reluctant to take

antidepressant medication after the subject incident.

13 Prior to the incident, he says he was fit and active. He enjoyed social sport,

including football, tennis and golf. He went to the gym three times a week. He

was a handyman and able to build furniture. He was otherwise well, and in

particular had suffered no injury to his right wrist.

The injury and its consequences

14 On 28 September 2011, Mr McLennan was working on an extension ladder

which collapsed. He fell to the ground, suffering pain in his right wrist. He went

to his general practice clinic, Geelong City Medical Clinic, and was referred for

an x-ray of the right wrist. The x-ray was reported as normal. He took several

days off work because of pain in the wrist, and then returned and remained at

work until November 2011. On 18 November 2011, he experienced an increase

in pain. He returned to his general practice, and saw Dr Tennakoon several

days later. He was advised that he had suffered a fracture to the scaphoid. A

Plaster of Paris was placed on the wrist, and pain-relieving medication provided.

He was referred to Mr Robert Wood, orthopaedic surgeon of Geelong, in

December 2011. Mr Wood performed the following operative procedures:

(i) 12 December 2011 – pelvic bone graft to the scaphoid fracture because

of non-union;

(ii) 23 October 2012 – removal of screw, ostectomy, further bone graft and

refixing.

15 Mr McLennan continued to consult with Mr Wood, initially until January 2013.

Mr Wood noted that it was not uncommon for an initial x-ray to miss an

undisplaced scaphoid fracture. In 2013, he thought Mr McLennan was not fit

for work of any nature involving his dominant right hand, and he could not drive,



write or use a computer. He thought there would be ongoing pain and a very

significant chance of osteoarthritic changes in the wrist. He noted Mr McLennan

had an interest in architecture.

16 Mr Wood referred him for a second opinion with Mr Stephen Tham, hand

surgeon, who he saw later in 2013. Mr Tham performed the following further

surgeries to the wrist:

(i) 24 October 2013 – vascularised bone graft;

(ii) 13 February 2014 – removal of K-wire;

(iii) 22 September 2014 – further removal of K-wire.

17 While a CT scan of July 2014 showed some evidence of union of the scaphoid,

there was not complete union. Mr Tham recommended he use a splint over the

wrist. He thought Mr McLennan was not capable of returning to work as a

plumber, but was capable of performing alternative duties, using his left hand

alone.

18 Mr McLennan returned for review with Mr Wood in August 2016. That

practitioner noted there had not been a good outcome from any of the surgeries

and the scaphoid bone remained in non-union. He said Mr McLennan

complained of left knee pain, which had been used as a harvest site for the

bone graft. He said Mr McLennan was not fit for plumbing duties because of

the right wrist injury, but also because of increased pain in his left and right

knees. As to alternative duties, he said:

“… he has expressed significant interest in architecture and associated professions, and I would suspect that this man is of reasonably high intelligence and would be quite capable of returning to the type of studies that would allow him to pursue this type of career.

The restrictions I would place on this worker would relate to his inability to use the right wrist with strength in a repetitive or an intermittent nature, and his inability to continually use both lower limbs with respect to stairs,



ladders, crouching, squatting and lifting from ground level.”1

19 Mr Wood thought there would be the need for intermittent physiotherapy and

that the prognosis for the wrist was not good. He thought there would be

ongoing degenerative issues with the knees.

20 Dr Tennakoon referred Mr McLennan to Ms Cheryl Graham, psychologist, in

August 2013 because of his psychological reaction to the injury. He has seen

that practitioner on and off from that time until recent times. She noted that he

had reported some earlier psychological difficulties in relationships with his

parents, in particular his mother’s partner, which caused him to leave home at

eighteen. As a result of his wrist injury, he complained to Ms Graham of

“extremely severe” levels of depression, “severe levels of anxiety” and

“moderate levels of stress”.2 The symptoms included irritability, avoidance

behaviour, sweating, sleep disturbance, fatigue, lack of motivation, confusion

and inability to complete tasks.3 She said he was anxious about his future. She

diagnosed an Adjustment Disorder, overlaid with Anxiety and Depressed Mood.

Mr McLennan told her that he felt “his life is out of control and he is constantly

worried about his physical health and his ability to live the life that he had

planned”.4

21 Mr McLennan has also been treated by a physiotherapist, and hand

rehabilitation therapist.

22 According to his general practitioner, Dr Tennakoon, who has treated him

throughout, he is not fit for pre-injury duties.

23 In Mr McLennan’s affidavits, he says the injury to his wrist has had a devastating

effect upon his life. He suffers constant pain in his wrist, which varies, and if he

uses the wrist, he suffers an increase in pain, which is particularly debilitating.

1 Plaintiff’s Court Book (“PCB”) 65 2 PCB 81 3 PCB 81 4 PCB 83



He can move the fingers of his hand, but pain increases, depending on the level

of activity. The pain is worse in the cold weather. He suffers pain in the area

of the left knee at the site of the graft. He says his grip strength is significantly

reduced and he wears a wrist support most of the time. The injury is to his

dominant right hand and affects almost all activities of daily living. The pain

makes sleep difficult and he wakes several times during the night. He has taken

prescription pain-relieving medication, including Endone, although has an

aversion to stronger pain medication, and ceased taking it after the last bout of

surgery. He takes over-the-counter pain medication on a regular basis.

24 Mr McLennan no longer keeps fit and active. He no longer plays social football,

tennis or golf. He stopped using his hands for domestic tasks. He has not

worked since November 2011. His domestic tasks are affected and although

he is able to look after himself, he cannot mow the lawn. He drives an automatic

car which has a steering knob. He has been told that he will probably suffer

arthritis in the right wrist and there is the prospect of fusion surgery, although

he is reluctant to undertake that at the present time.

25 Mr McLennan says that, as a result of the physical pain, his psychological health

has been deeply affected. He has had panic attacks, although none recently.

He said the psychological symptoms have resulted in a breakdown of his

relationship with his girlfriend. He had been in that relationship for several

years. He has become depressed and anxious about his future. In 2013, and

again in 2014, he and his girlfriend terminated her pregnancy. He was upset

about this. He has become withdrawn and prefers to be at home, living by

himself. Being with other people makes him anxious and he struggles to

maintain friendships and speak to people over the phone. He was previously a

very social person.

26 He was prescribed some antidepressant medication, but did not like taking it,

as it made him feel somewhat disorientated. He has not been advised to take



anti-anxiety medication.

27 Mr McLennan has not been referred to a psychiatrist. He said he would go to

see one if it was recommended. He was seeing Ms Graham until this year, but

was unable to afford further treatment when WorkCover ceased paying her

fees. He takes medication from time to time to help with sleep.

28 He was ambitious in his career as a plumber and after a year’s employment

with the defendant, intended to ask for a pay rise. Eventually, he thought he

could take over the business from his boss, when the boss retired.

29 Mr McLennan has not returned to any form of employment. He undertook and

completed a course in security operations in 2014, over three to five weeks. He

said he struggled to attend all of the course sessions, but was able to complete

the course and obtain a certificate. He can use a pen, although finds it difficult.

He cannot use a computer mouse using his right hand, but can type slowly on

a keyboard. He did not think he could work in any area involving security, as

he could not apprehend offenders.

30 In relation to various areas of alternative employment, including as a retail sales

assistant, sales representative and customer service officer, in evidence, he

said he would love to be able to return to work, but did not think he could perform

the tasks in those areas of employment. Anything which involved the regular

use of his right hand was difficult. He could work, possibly, as a sales

representative or customer service officer for short periods of time, but would

not be reliable and could not work on a sustained basis. He could type for short

bursts of time, but not on an ongoing basis. If his hand pain becomes

aggravated, he has to stop what he is doing and cannot work at all. He could

not organise product displays as a sales representative.

31 Most of the time, Mr McLennan sits at home, doing very little. He is able to shop

and clean and undertake basic domestic duties.



32 He has travelled to Asia on approximately ten occasions since the incident. He

enjoys the warm weather, and sitting around the pool. He says the trips enable

him to get away from the things which he finds difficult in Melbourne. He does

not socialise particularly when on holidays, although occasionally has a meal

and drink at the bar. He has borrowed money from his father to enable him to

undertake these holidays.

33 As his psychological state deteriorated, his alcohol intake increased. In the

latter part of 2014, he smoked marijuana daily, perhaps into the early part of

2015. This has now stopped, and he has reduced his alcohol intake.

34 In the course of cross-examination, Mr McLennan said he felt constantly

anxious and depressed. He found it hard to deal with stress; even small things

became substantial. He thought he might manage, on some days, three to four

hours’ work, providing he was not required to use his right hand. He did not

think he could be reliable, nor work consistent hours. He acknowledged he told

Mr Wood that he would like to train as an architect, but had not looked into

undertaking a course in that area.

35 As to his relationship with his stepfather, it was put to him that that period was

traumatic and stressful. He said it was upsetting, but he “understood what was

going on”. There were ups and downs in his relationship with his mother, but

they now got on well. His relationship with his girlfriend, Amy, was volatile. In

2014, he attempted suicide by hanging himself. She found him and cut him

down.

36 It was suggested to him that if he could obtain employment, even on a part-time

basis, it would make him feel better. He said he did not believe there was a job

that he could handle with his emotional state as it was.

37 Mr McLennan was taken to the clinical notes of Ms Graham, the psychologist,

where the following entries appear:



“1/2/16 Thought could start work again. Advised by lawyer can’t work because of claim.

…

Lawyer said put life on hold till Oct ’16.”5

38 He denied that he had received that advice from his lawyers, and further denied

that he had said that to Ms Graham.

39 Ms Graham attended to give evidence and was cross-examined on the note.

Her explanation was not particularly satisfactory. She said she thought she

may have made a mistake and was referring to a surgeon, rather than a lawyer.

She said that had she been told that by Mr McLennan, she would have been

more “circumspect” about writing it down. She could vaguely recall the

discussion on that day, but thought it was discussion about surgery.6

40 It is difficult to know what to make of this note. Ms Graham was an unimpressive

witness and I do not accept her attempted explanation of how the reference

came to appear in her notes. However, for reasons I will shortly detail, I found

Mr McLennan an impressive witness and I accept his denial, both that he was

told by his solicitors that he should not work for the benefit of the claim and that

he passed that onto the psychologist. I think the entry was a mistake and

somehow linked to a discussion of the case generally. Perhaps the discussion

was that he had been advised, quite appropriately, that any return to work would

affect a court’s assessment of his work capacity. That does not mean Mr

McLennan should avoid taking up employment for that reason. I accept his

evidence that he would love to return to work, but finds it very difficult. In the

end, not a great deal turns on the entry.

41 Under further cross-examination, Ms Graham was taken to a note of May 2015,

where there was reference to the prospect of training as a WorkSafe inspector.

She said she had spoken to Mr McLennan about his future many times and he

5 Clinical Notes of Ms Cheryl Graham, exhibit 2 6 Transcript 151-154



thought she knew someone who was an inspector and that she was to follow it

up. She did not think she had followed it up. Initially she thought he would

improve, but that did not turn out to be the case. That occurred with many

patients in his situation. It was put to her that given her concerns, Mr McLennan

ought to have been referred to a psychiatrist for a more comprehensive

treatment regime. She said some people want to go down that path and some

do not.

42 It was suggested that if Mr McLennan was able to obtain employment, his

mental state would improve. She said that she thought he was emotionally

fragile and vulnerable when things went wrong.

43 In cross-examination, Mr McLennan said that it would be difficult for him to turn

up on time regularly for a job, although it was put to him that he was able to

attend Court over the several days of the hearing, get to the airport on time to

travel to Asia and attend medical appointments. He said that if it was a “one-

off”, he was able to do it, but it would be different if he had to do it regularly. He

said that on some days the pain is so bad, if he aggravates the wrist, he is

unable to leave his house.

44 He accepted that he had told one of the doctors that he thought he could work

for three or four hours, three or so days a week. He would need a day’s break

in-between the days he worked. He said three or four hours because, in the

past, his hand had become sore after three hours. He had some computer

skills, but was not familiar with a computer. Using his right hand on a computer

hurt because of the angle of the hand to the keyboard.

45 The various areas of suggested alternative employment were put to Mr

McLennan.7 He said he could not use a computer on a regular basis. He found

it difficult to even talk to people, including work with students. He could not

7 Report of Workable Consulting – Defendant’s Court Book (“DCB”) 81-87



work as a security officer because of the problem with apprehending people.

He could not sit in a car for long hours as his knee became sore. As a customer

service officer, he would have to deal with people, which he found difficult. The

same applied to work as a call centre operator. He did not think he could work

in any area which involved customer service.

46 As at the day of the incident, he was earning $1,500 per week, but he was a

subcontractor. From this had to be deducted expenses. It was suggested that

vocational material indicated that a plumber of his experience would earn

something between $60,000 and $70,000 per year. He said there were friends

of his who earned more.

Consultant medical opinions

47 Mr McLennan has been examined by a number of consultants as to his physical

and psychological work capacity.

48 Dr Paul Kornan, psychiatrist, examined Mr McLennan in August 2014 and found

him to be a man of above average intelligence who was suffering from a Major

Depressive Disorder and an Adjustment Disorder with Anxiety.8 He noted Mr

McLennan had attempted to hang himself and suffered ongoing unbearable

stress, significant problems socialising, depressive thoughts, and irritability and

panic attacks.9 He also noted Mr McLennan had lost between 5 to 10 kilograms

“consistent with a Major Depressive Disorder” and struggled with sleeping

problems.10

49 Dr Kornan found that Mr McLennan’s psychiatric ill health had been “caused by

this employment injury, and the repeated surgery which has been unsuccessful

so far” and his prognosis from the psychiatric viewpoint remained poor with “an

increased chance of a suicide attempt or successful suicide …”.11 He said, from

8 PCB 106 9 PCB 107 10 PCB 107 11 PCB 106, 108



the psychiatric viewpoint, Mr McLennan “is not fit for fulltime employment” but

is “probably fit for just partial employment”.12

50 Dr Alan Jager, psychiatrist, examined Mr McLennan on 6 June 2016, at the

request of the solicitors for the defendant.13 In his report, Dr Jager noted Mr

McLennan was an occasional drinker and “smoked marijuana in his teens until

early 20s but was never a daily smoker”.14 Mr McLennan told him that he had

last felt completely well on 28 September 2011, prior to his fall, and started to

become depressed three months after the injury “when he realised his career

was over”.15 Mr McLennan told him he felt “depressed most of the time, anxious

almost all the time, and only a little angry”.16 He had difficulty sleeping, avoided

sports and socialising and had a reduced appetite and low energy.17 He

reported that Mr McLennan suffered from suicidal thoughts a couple of times a

week and attempted suicide in 2014. He took antidepressant medication for a

few weeks only as he “felt like a zombie”.18 Dr Jager said Mr McLennan’s

“reduced energy, suicidal thoughts, and anxiety and depression render him unfit

for all employment”.19

51 Mr Thomas Kossmann, orthopaedic surgeon, examined Mr McLennan. In his

report dated 2 September 2016, Mr Kossman found Mr McLennan’s prognosis

to be poor, and that he would continue to suffer from pain in his right wrist, which

would require further treatment.20 He noted that Mr McLennan had undergone

six operations on his right scaphoid and suffered from significant pain in the

wrist, together with pain in his left knee since the harvest of the bone graft.21

He further noted that Mr McLennan was developing osteoarthritis and would

12 PCB 107 13 PCB 128 14 PCB 130 15 PCB 131 16 PCB 131 17 PCB 131 18 PCB 131 19 PCB 133 20 PCB 121 21 PCB 121



require fusion of his right wrist in future, which might have an impact on “his

mobility of his right upper extremity and may also affect the other joints of his

right upper extremity …”.22 He recommended that Mr McLennan be referred to

a hand surgeon and that further examination by an orthopaedic surgeon be

undertaken to see if further treatment would be available for his left and right

knee condition.23

52 In his last report, dated 18 October 2016, Mr Kossmann confirmed his opinion

that Mr McLennan “has no capacity for his pre-injury employment and suitable

employment as a result of his right wrist injury”.24

53 Dr Joseph Slesenger, occupational physician, examined Mr McLennan on 16

August 2016 and diagnosed him with:

Right wrist impairment following a right scaphoid fracture non-union which

required multiple surgeries including bone graft on four occasions.

Chronic Pain Disorder of the right wrist.

Left knee pain subsequent to harvesting donor bone and vascular tissue

with evidence of medial collateral ligament sprain.

Right knee pain, possibly due to right knee chondral lesion.25

54 Dr Slesenger was of the opinion that Mr McLennan could not return to his pre-

injury duties. In addition, he considered the alternative duties suggested by the

IPAR NES Vocation Assessment Report as potential employment, and made

the following comments:

“… He has qualifications as a plumber (roofing, heating and ventilation). He has limited experience in this area and has been working in the industry for 10 years. He has not had any managerial responsibility, nor has he worked in the role of an inspector or quality controller. In addition,

22 PCB 121 23 PCB 124 24 PCB 126 25 PCB 156



I also note the absence of computer skills and I am of the opinion that his opportunities for employment at this stage appear to be limited. He has a theoretical capacity based on the right wrist impairment alone for working with the following restrictions:

No push, pull, carry or lift over 5 kg.

Avoid use of the right arm.

Avoid repetitive wrist movements.”26

55 Dr Slesenger was further concerned about Mr McLennan’s capacity to attend

work on a “consistent and reliable basis” due to his unpredictable symptoms.27

56 Ultimately, Dr Slesenger found that Mr McLennan could work as a sales

representative if it was limited by the above restrictions, but would not be able

to perform any of the other recommended alternate jobs due to the need for

bimanual handling (speed camera operator), the use of both his hands, either

to climb into restricted spaces (meter reader, electrical spotter) or to apprehend

aggressive patrons (security officer).28

57 Due to the ongoing pain in Mr McLennan’s wrist being at “a level of 5-8/10 a

day” and worse in cold weather and with bending and flexing of the wrist, Dr

Slesenger considered that he could return to work for “up to 4 hours a day with

a 5-minute rest break per hour and I advise that he should work Monday,

Wednesday and Friday”.29

58 In his final report of 20 October 2016, Dr Slesenger confirmed his previous

findings and recommended that Mr McLennan return to working “4 hours a day,

4 days a week (Monday, Tuesday, Thursday and Friday)”.30

59 Dr Jennifer Flynn, orthopaedic surgeon, assessed Mr McLennan on 27 July

2016. Mr McLennan described his pain in the right wrist to be worse with cold

weather and movement. He complained of a dull ache that measured a severity

of 5 out of 10 and a sharper pain that measured a severity of 9 out of 10 when

26 PCB 159 27 PCB 159 28 PCB 160 29 PCB 163 30 PCB 164.4



aggravated with activity.31

60 Dr Flynn diagnosed that Mr McLennan had a “non-union of the scaphoid with

avascular necrosis of the proximal pole and wrist osteoarthritis”.32 Dr Flynn

reported Mr McLennan’s prognosis was poor and that it would not improve

unless he were to undergo a successful wrist fusion.33

61 While Dr Flynn was of the opinion Mr McLennan was not fit for his pre-injury

employment, she believed that he could undertake alternative duties,

specifically “a sedentary role that does not involve any lifting with the right wrist

of greater than 2 kg”.34

62 Dr Flynn produced a supplementary report on 20 October 2016 recommending

the positions of Senior Customer Service Officer or Security Attendant (Control

Room) as suitable employment options for Mr McLennan.35 She further said Mr

McLennan would be “capable of working full time hours (8 hours a per day) and

5 days per week, in a suitable role”.36

63 Dr Mary Wyatt, occupational physician, assessed Mr McLennan on 4

September 2015. At the time, Mr McLennan complained of having persistent

pain in his right wrist, exacerbated by cold weather and use, and troubles

gripping and grasping. He said he had given up previous activities, such as

running and football due to the vibrations. Dr Wyatt formed the view that Mr

McLennan had an “ongoing non united fracture at the right wrist, with

associated pain and reduced function of the right forearm”.37 She said Mr

McLennan was not able to do significant manual handling, gripping and

grabbing, or highly repetitive tasks with his right arm. However, Dr Wyatt

31 PCB 136 32 PCB 139 33 PCB 140 34 PCB 139 35 PCB 141 36 PCB 142 37 DCB 57



observed Mr McLennan to be a capable, articulate young man with excellent

English language skills, and thought he would benefit from retraining in a role

where he sees a career path.38 Dr Wyatt said Mr McLennan was capable of

call centre or other administrative work, or security work involving control room

duties or patrolling duties that would not require him to apprehend people.39

64 Dr Wyatt examined Mr McLennan again on 20 July 2016.40 He reported his

wrist as getting worse and appeared with lowered mood. Dr Wyatt noted that

his right forearm was “0.5cm greater in circumference than his left forearm,

suggesting regular use of the dominant right arm” and that his physical problem

had likely been compounded by his mood disorders.41 Ultimately, Dr Wyatt’s

diagnosis did not alter, confirming Mr McLennan suffered an ununited right

scaphoid fracture and “is likely to develop osteoarthritis at the right wrist in

time”.42 Dr Wyatt confirmed the prognosis for Mr McLennan will be for

continued pain, however, she thought he was fit for work that did not involve

significant manual handling. Dr Wyatt said Mr McLennan could perform full time

work as a call centre operator, customer service officer, administration officer,

or security attendant (control room or mobile patrol) as they were not physically

taxing on the right arm.43

65 Work Able completed a vocational report as to Mr McLennan’s work capacity

based on the reports of Dr Mary Wyatt and assessed potential worksites for

positions. The first position considered was a Student Administration

Officer/Counsellor or Administration Officer/Receptionist. Work Able reported

in this position Mr McLennan would need to carry out computer-based tasks,

meet with students and answer and make telephone calls. The pay rates varied

per position but ranged from $25.30 pre-tax hourly rate (Administration

38 DCB 58 39 DCB 58 40 DCB 62 41 DCB 64 42 DCB 64 43 DCB 65



Officer/Student Counsellor) to $19.00 pre-tax hourly rate (Administration

Officer/Receptionist). The second position was a Mobile Patrol Security Officer.

Work Able reported that the position would require Mr McLennan to drive an

automatic vehicle around an estate (around 30 minutes to complete). Mr

McLennan would not be required to chase any trespassers, but would need a

Certificate II in Security Operations, Security Licence and Drivers Licence. The

pay rate would vary from $29.00 per hour to $44.00 per hour.44 The report

considered a number of other areas of alternative employment, including as a

Senior Customer Service Officer with VicRoads; as a Call Centre Operator;

Customer Service Operator; Administration Officer; Security Attendant (control

room) and Security Attendant (mobile patrol).

66 Recovre also completed a suitable employment report of 29 August 2016 based

on Dr Wyatt’s medical reports. The report concentrated on worksite

assessments to determine and outline the typical duties, tasks and physical

demands associated with the two roles Dr Wyatt assessed as suitable for Mr

McLennan.

67 The first role was a rental salesperson with a building and construction

equipment hire business in Geelong North, approximately a 5-minute drive from

Mr McLennan’s home. Recovre found that “the primary physical demands of

this role are sedentary in nature with upper limb tasks primarily associated with

desk and computer based activities”.45 Further, Recovre found there was no

requirement for “repeated gripping and grasping, though some finger dexterity

is required for keyboard and mouse use”.46

68 The second role was a security concierge in a large office building in Geelong

City Centre, approximately a 3-minute drive from Mr McLennan’s home.

Recovre found that this role required workers to perform customer service

44 DCB 80 45 DCB 97 46 DCB 97



activities and movement of people in and out of the building, telephone duties,

patrol and fleet booking tasks. There was some need for finger movements and

some gripping and grasping of small and light items, however, Recovre thought

this could be managed using the left arm only. Further, there was “no

requirement for manual handling outside of the sedentary range”.47

Credibility of Plaintiff

69 Mr Gorton said that while Mr McLennan appeared as a presentable and

intelligent young man, he was an unreliable witness. He said that Mr McLennan

gave untested evidence that he could not reliably attend work or could do so for

only a few hours at a time. He said Mr McLennan should not be believed on

the point. He submitted that Mr McLennan had not missed a doctor’s

appointment, Court date, legal appointment or overseas trip due to his

emotional incapacity, and when he was asked to identify an appointment he

had missed, he could not specify one.

70 Mr Gorton took issue with Mr McLennan’s credit:

Firstly, that Mr McLennan had reported to Dr Kornan that he recreationally

smoked marijuana but had never developed a habit, and to Dr Jager, that

he smoked in his early teens but was never a daily smoker. Mr Gorton

submitted that this was an understatement of his drug use, as Ms

Graham’s notes demonstrated he had smoked marijuana daily for a period

of nine months.

Secondly, that Mr McLennan reported his family background to

psychologists but without including details of family disruption including

intervention orders, which he admitted in the course of cross-examination.

Mr Gorton submitted that Mr McLennan’s evidence demonstrated he had

a difficult childhood and that he had understated this to treating doctors.

47 DCB 106



71 One aspect of the assessment of a witness’s credibility relies upon the manner

in which the witness gives evidence from the witness box. I found Mr McLennan

to be an intelligent, presentable and quite impressive witness. He was

responsive in his answers in cross-examination and made appropriate

concessions, giving a fair account of the circumstances of his injury and the

consequences.

72 Surveillance film of the plaintiff was undertaken but not shown in Court. I infer

that had it been shown it would not have assisted the defendant’s case.

73 Facebook photographs tendered into evidence showed Mr McLennan enjoying

himself overseas. I find these photographs to be of little significance, as some

were taken before the incident and no photographs show Mr McLennan

engaging in behaviour inconsistent with his evidence and the histories to

various doctors as to the effect upon him of his physical and psychological

conditions.

74 As to the other credit issues raised by Mr Gorton, Mr McLennan provided a

frank account of it throughout his evidence in Court. While there are some

inconsistencies between consultant medical reports, Mr McLennan admitted he

has used marijuana to all treating doctors. Therefore, I believe the

understatement of marijuana use to be of little significance.

75 Further, Mr McLennan may have understated details of his family background

and violence at medical consultations. However, again, he provided a thorough

account of this in his evidence in Court and I find it to be of little significance.

76 Overall, I found Mr McLennan to be an honest and impressive witness and I

have little hesitation in accepting his account of the injury and the effect of it

upon his life.

The Plaintiff’s earning capacity

77 The starting point for an assessment of Mr McLennan’s earning capacity is to



determine his gross income from personal exertion during that part of the three

years before and after injury “as most fairly reflects the worker’s earning

capacity had the injury not occurred”.48 The calculation in this case is somewhat

complicated.

78 Mr McLennan was cross-examined by Mr Gorton on his taxation returns in the

years leading up to the incident. He gave evidence that in 2009, he earned a

total of $28,290.00 and $30,620.00 in 2010. In 2011, the last full financial year

before his injury, he earned $15,096.00 from his employment at G Force49 and

an additional $30,769.00 from working as a sub-contracting plumber for the

defendant. At the time of the incident, he was working as a sub-contractor

rather than as a salaried employee. Mr McLennan admitted that these earnings

were subject to expenses. He said the expenses would have been modest as

he drove the boss’s vehicle and used his tools.

79 Mr Gorton put to him that despite him not earning above $40,000 in the years

leading up to his incident, his claimed rate of $45.00 per hour (or $1,800 per

week) was unrealistic. Mr McLennan said his earnings in the earlier years were

at the rates as an apprentice, but that on completing his qualification, he was

worth $45.00 per hour as a subcontractor. He gave further evidence that had

he continued without injury, he would have increased his hourly rate to $55.00

per hour in 2013. According to the WorkCover Claim Form, signed by the

employer, Mr McLennan was earning $37.50 per hour at the time of incident,

translated to $1,500 per week, gross.50

80 I was taken to the Court of Appeal decision in Nicholson v Victorian WorkCover

Authority.51 The plaintiff suffered a knee injury in the course of his employment.

He returned to work with a different employer almost three years later, however,

48 Section 134AB(38)(f)(ii) 49 A specialist employment agency 50 PCB 40.2 51 [2016] VSCA 146



on a part-time basis. His remuneration for his part-time employment included

a travel and a clothes allowance.

81 The Court was required to determine whether the allowances should be

included in the plaintiff’s “gross income from personal exertion”. The Court

concluded the plaintiff’s gross income from personal exertion:

“... is to be calculated in accordance with the text of the definition contained in s 6(2) of the Transport Accident Act 1986. It is not to be calculated by deducting, from the plaintiff’s income, deductions claimed in the plaintiff’s income tax returns for work-related motor vehicle and clothing expenses.”52

82 Counsel for the plaintiff argued that while Nicholson dealt with income received

as an employee, not a sub-contractor, there was nothing to suggest the decision

would not apply to sub-contractors.

83 Section 6(2) of the Transport Accident Act 1986 defines “income from personal

exertion” as either:

“(a) the amount that is the income of that person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, superannuation allowances, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered”

or

“(b) the proceeds of any business carried on by that person either alone

or in partnership with any other person ... ”.53

I was taken to, and have considered, a number of authorities of this Court on

the issue.54 Of these authorities, the facts in Boskovic are most akin to the facts

I am dealing with in the current case. The reality of the situation is that Mr

McLennan was, in effect, a salaried employee, working on an hourly rate for the

one employer. As is the trend in the modern employment environment, persons

in his situation are often deemed “subcontractors” for various reasons, usually

52 Paragraph [36] 53 Paragraph [70] 54 Boskovic v Road Maintenance Pty Ltd [2006] VCC 51; Alter v Alcon Laboratories (Australia) Pty Ltd

[2008] VCC 713; Guthrie v Campion Education (Aust) Pty Ltd [2009] VCC 1141; McLaren v Dubbo

Glazing Services [2009] VCC 526



for the benefit of the employer. In Boskovic, his Honour Judge Strong said that

the definition of “income from personal exertion”, as referred to in s6(a) of the

Transport Accident Act 1986, better described the relationship between the

plaintiff and his employer in that proceeding. He said the worker was working

for “services rendered” rather than “as the proceeds of a business”.55 The same

has application here. He said there was nothing in ss(a) to suggest that

expenses, whatever they might be, should be deducted, although noted

“proceeds” arguable meant net proceeds. His Honour said s134AB(38)(f)

referred to a gross income from personal exertion, whereas the definition in the

Transport Accident Act 1986 referred to “income from personal exertion”.

Therefore, one must have regard to gross earnings when considering

subparagraph (a). His Honour noted:

“If expenses were to be deducted for the purpose of assessing pre-injury earnings then, in order to compare like with like, projected expenses would need to be deducted from post-injury earnings.”56

84 In my view, regard should be had to the facts of each case and the reality of the

employment situation. It is clear from s6(2)(a) that “income from personal

exertion” is to be given wide scope. That is enhanced by reference to the use

of the word “gross” in s134AB(38)(f). The reality of Mr McLennan’s situation

was that he was an employee. While agreeing that the $1,500.00 per week

gross he was earning at the time of the incident included expenses, they were

only modest. For the year ended June 2011, his income from the defendant

was $30,769.00, with “deductions” of $3,993.00. For the year ended June

2012, his income was $64,256.00, with $175.00 as “deductions”.

85 In the circumstances of this case, in my view, it is not appropriate to reduce Mr

McLennan’s gross income from what he was paid on an hourly rate to take

account of any expenses or deductions. There may be other circumstances

where a different result is achieved. For example where a person runs a

55 Boskovic (supra) at paragraph [71] 56 Boskovic (supra) at paragraph [73]



business in which he employs others. While the turnover of the business might

be say $100,000, $75,000 of which was paid as wages to those other

employees, it could hardly be said that his “income from personal exertion” was

$100,000. But that is not the case here.

86 Mr Gorton further contended that rather than relying upon the income Mr

McLennan was earning at the time, it is more appropriate to consider the wage

information obtained by Flexi Personnel,57 which showed plumber’s annual

earnings as ranging between $39,461 to $85,638, with a median salary of

$55,141 gross. Alternatively, according to another internet source, a plumber’s

annual median salary was $62,400 gross.

87 I am satisfied from the evidence that Mr McLennan, at the time of the incident,

was a young, competent and ambitious plumber. I accept that he had

aspirations to progress in the defendant’s business and seek an increase in

salary, although whether he would obtain such an increase, or even become

involved in the ownership of the business, was speculative.

88 All in all, I am satisfied that it is appropriate to assess his “without injury”

earnings as $1,500 per week, or $75,000 gross per year.

Loss of earning capacity

89 Mr Gorton quite properly concedes Mr McLennan could not return to work as a

plumber, nor any other area of employment which required regular, repetitive

or forceful use of his right dominant hand. He referred to the early reports of

the surgeon, Mr Wood, who noted Mr McLennan’s interest in architecture. He

said most of the practitioners had referred to Mr McLennan as an intelligent and

capable young man with a range of skills. In particular, he relied upon the

reports of Dr Flynn, orthopaedic surgeon, and Dr Wyatt, occupational physician.

Dr Flynn thought Mr McLennan could work in a range of occupations on a full-

time basis, including as a customer service officer, or security attendant,

57 PCB 190



working in a control room. Dr Wyatt came to a similar opinion and in addition,

said Mr McLennan could work as a customer service officer, or administration

officer, providing the tasks were not physically taxing on his right arm.

90 Mr Gorton also noted Dr Slesenger said Mr McLennan could work as a sales

representative, although with restrictions.

91 The treating surgeons, Messrs Wood and Pham, both thought Mr McLennan

was capable of performing some form of alternative duties although did not

analyse the issue in any detail.

92 There is no doubt Mr McLennan has suffered a significant injury to his right

wrist. I accept his evidence that he suffers constant pain which can be

exacerbated with activity. There is limited movements of his finger and I accept

work on a keyboard is not easy, in particular because of the angle between the

wrist and the keyboard. He has reduced grip strength in the wrist, the pain

wakes him at night and requires him to take over-the-counter medication on a

regular basis. All of these symptoms make it difficult, if not impossible, for him

to undertake any employment in an area which would require regular use of his

right hand.

93 I reject the opinions of Dr Wyatt and Dr Flynn, who say Mr McLennan is capable

of full-time work, even in roles of an administrative or sales nature, which do not

require constant use of his right wrist. In my view, given the symptoms from

which he is suffering, the fact that he has been off work now for more than five

years and the ongoing deteriorating condition of the wrist with the prospect of

fusion surgery, he would be capable only of part-time duties in alternative

employment.

94 I was impressed with the opinion of Dr Slesenger, the occupational physician,

who examined Mr McLennan in August this year. He carefully evaluated the

various areas of suggested employment and considered a return to work



possible, at four hours per day, four days per week. This opinion coincides with

the evidence of Mr McLennan, himself, who said that while he thought he could

work for some hours, it was difficult with the physical symptoms from which he

was suffering, to be a regular and reliable employee. Dr Slesenger narrowed

down the areas of potential employment to, possibly, work as a security

attendant in a control room or as a customer service officer.58

95 I do not accept the opinion of Mr Kossman that Mr McLennan has no work

capacity. He is an intelligent, articulate and capable young man. In my view,

he has the ability to be retrained into alternative areas of employment. The

problem is not so much whether he could turn his hand to other areas, but rather

whether the physical symptoms would prevent him in the number of hours per

day, and the number of days per week, he could work.

96 Dr Slesenger’s assessment of four hours per day, four days per week, is a

realistic reflection of Mr McLennan’s current work capacity from physical injury.

97 Accepting “without injury” earnings of $1,500 gross per week, none of the

proposed rates of pay in the areas of employment as suggested by the

defendant’s vocational assessors, for the four hours per day, four days per

week, achieve the 60 per cent loss of earning capacity sufficient to defeat Mr

McLennan’s claim.

98 Alternatively, there is no doubt Mr McLennan is suffering a significant

psychological disorder.

99 Dr Kornan diagnosed a Major Depressive Disorder, or Adjustment Disorder with

Anxiety, and said Mr McLennan was not fit for full-time employment, but

probably fit for part-time employment.

100 Dr Alan Jager, who had examined Mr McLennan on behalf of the defendant,

58 PCB 164.4



concluded that with the various psychological symptoms, including reduced

energy, suicidal thoughts, anxiety and depression, he was unfit for all

employment.

101 I do not place very much faith in the opinion of the treating psychologist, Ms

Graham, who I found an unimpressive witness.

102 Mr Gorton argued that the psychological condition from which Mr McLennan

was suffering was not particularly disabling. Had that been so, he would have

sought or been referred for psychiatric treatment, and a far more

comprehensive anti-depressant and anti-anxiety medication regime

undertaken. That had not been the case. Further, said Mr Gorton, not only had

Mr McLennan been able to travel overseas on ten occasions but also attend

Court, medical and legal appointments, and airports on time, and reliably. This,

he said, did not reflect someone with a severe psychological disorder.

103 I accept the opinions of Dr Kornan and Dr Jager, that Mr McLennan suffers a

Major Depressive Disorder. I accept Mr McLennan’s evidence that over time,

his psychological state has deteriorated. I accept that he finds dealing with the

public stressful and he becomes emotionally fragile and vulnerable. I accept

his description of the psychological symptoms which he suffers, including

stress, anxiety, irritability, lack of sleep, fatigue, lack of motivation and

confusion. I accept his statement that his life has become out of control

because of the physical injury. While he has not been referred for psychiatric

treatment and that, with the prospect of engagement with a treating psychiatrist

there may be some improvement in his condition he, nonetheless, suffers a

disorder which is having a very real impact on his work capacity and that that is

likely to persist, even with competent treatment.

104 I accept the opinion of Dr Kornan that he is probably fit for some part-time

employment from a psychological point of view but, again, he has not been a



reliable nor regular employee. In my view, his work capacity from a

psychological point of view is relatively modest, and certainly less than 60 per

cent of his previous work capacity. This view is not altered by the fact that he

has holidayed regularly in Asia. I accept Mr McLennan’s evidence that he does

this to get away from Melbourne and all the things which remind him of his injury

and incapacity. I accept that when he travels to these places, he does little else

other than rest and enjoy the warmth. I do not see any merit in Mr Gorton’s

submission that he would be able to attend employment regularly, given he is

able to attend both legal and medical appointments in Melbourne. The two are

distinct and different. It is one thing to attend a medical appointment from time

to time; it is another to turn up for work duties punctually and reliably. Further,

if additional treatment by a psychiatrist, including anti-depressant and anti-

anxiety medication were to change Mr McLennan’s psychiatric state

significantly, I would have expected Dr Jager and Dr Kornan to say so. Dr

Kornan did recommend such treatment, but thought his prognosis was poor.

He said:

“Mr McLennan is likely to remain with significant psychiatric difficulties, in a sustained way, into the foreseeable future ... .”59

105 A measure of the impact upon him of the psychological symptoms is the fact

that he attempted suicide in 2014, and from the brief description of that event

in his affidavit, was lucky to have survived.

Permanence

106 The definition of “serious injury” in s134AB(37) provides:

“(a) Permanent serious impairment or loss of a body function; or

…

(c) Permanent severe mental or permanent severe behavioural disturbance or disorder; or

... .”

59 PCB 108



107 It is necessary to determine whether Mr McLennan’s injuries, whether physical

or psychological, can be considered “permanent” and what “permanent” means.

108 Mr Gorton cited Barwon Spinners60 as providing the answer to this question.

He noted that Counsel in that case had agreed before the Court that permanent

meant “likely to persist in the foreseeable future”.61 The Court had considered

the Second Reading Speech where Parliament stated permanent was to be

taken to mean indefinitely for the foreseeable future.62

109 Mr Gorton further referred to the Court of Appeal case of Harris v DJD

Earthmoving Pty Ltd:63

“In the present case, at least, Mr Harris’ claim that he had suffered a (sufficiently large) loss of earning capacity as at the date of the hearing and that he would continue permanently to suffer such a loss of earning capacity could not be duly assessed without assessing the extent to which he was now, and might in the future be, capable of earning income from person exertion in ‘suitable employment’, as that term is defined in the Act.”64

110 The Court of Appeal found that it was necessary for the trial judge to have

provided a statement of reasons demonstrating that he had considered what, if

any, job the plaintiff might have been able to do on a regular basis in the

foreseeable future.65 In doing so, the Court said that Judge had to allow for

improvement thought to be likely or possible for the plaintiff after he had

undertaken treatment and/or re-training.66

111 Mr Gorton submitted that based on this analysis, Mr McLennan’s psychiatric

injury could not be deemed permanent as he had not visited a psychiatrist,

taken anti-anxiety medication nor fully explored the variety of anti-depressant

medication.67 Mr Gorton maintained that if he explored these treatment options

60 Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33 61 Barwon Spinners Pty Ltd & Ors Podolak (supra) at paragraph[18] 62 Paragraph [18] 63 [2016] VSCA 188 64 [34] 65 [49] 66 [49] 67 Transcript p185, l 17



and with some retraining, Mr McLennan’s psychiatric injury would not

permanently prevent him from working again.

112 As I have said, Mr McLennan is an intelligent, articulate and presentable young

man. Notwithstanding the seriousness of the right wrist injury and the fact that

it may well develop arthritis and require a fusion, it is difficult to see him not

engaged in some form of employment at some time in his working life. Again,

as I have said, even with the benefit of psychiatric treatment and medication, I

am not satisfied that would have any significant impact on his Major Depressive

Disorder. But will that condition remain, looking far off into the future? What

actually does the phrase “for the foreseeable future” mean?

113 This is no simple question to answer. Mr Gorton submitted that the phrase

meant throughout Mr McLennan’s working life. In my view, that cannot be

correct. It is impossible for doctors or lawyers to project Mr McLennan’s course

over the next thirty or forty years. On the one hand, it could not be said that he

is likely to gain employment at some certain point in time, and it is equally

unlikely to prophesise that he will never be employed for the rest of his life.

114 Eventually it will be a matter for a judge or a jury, providing Mr McLennan is

able to establish negligence or breach of statutory duty by his employer, to

determine his loss of earnings from the date of the incident to trial, and then the

loss of earning capacity into the future. That determination will be made

according to established principles, including the application of vicissitudes and

life tables. A determination with that precision is not required at the serious

injury level.

115 In terms of his physical injury, Mr McLennan faces continued non-union of the

scaphoid, the development of osteoarthritis and the prospect of having the wrist

fused. As time passes, it is likely he will learn to come to grips with the physical

injury and likely obtain some form of employment consistent with the hours and



days I have described. Likewise, with his psychological disorder, with time and

more extensive treatment, it is likely he will learn to accommodate more readily

the debilitating symptoms he has faced to date. In my view, in the present case,

it is realistic to look over the next five to ten years. For the purpose of this

application, beyond that is idle projection. His incapacity, both from a physical

and psychological perspective, is likely to continue over that period, even with

better treatment and him coming to terms with his difficulties. There is, over

those years, likely to be little significant change to his work capacity, which I

think, even accepting all the foibles of future projections, is likely to remain as it

is at present both in relation to physical and psychological injury.

Conclusion

116 I am satisfied that from either a physical or psychological perspective, Mr

McLennan meets the statutory test of a greater than 40 per cent loss of earning

capacity on a permanent basis. The application thus succeeds.

117 I shall make consequent orders as to costs.

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Documents

IN THE COUNTY COURT OF VICTORIA Revised AT MELBOURNE … · VCC:AS/LM/AS 2 JUDGMENT McLennan v McConachy Roofing Pty Ltd 7 At the time of the incident, Mr McLennan was a qualified