Magriplis-Hampton v Spendwatt Pty Ltd [2021] VCC 707

County Court of Victoria|2021-06-09|Before: Ms J

Tavis Margriplis-Hampton was born on 30 August 1991. He was employed as an electrician with Spendwatt Pty Ltd when he suffered serious injury to his lower back on 26 June 2014. At that time he was 23 years of age. Subsequently, he has had three rounds of spinal surgery, culminating in a spinal fusion operation on 18 May 2019.
The Defendant here accepts that this injury occurred in compensable circumstances and that the pain and suffering consequences satisfy the test of being considered a 'serious injury'. The real issue in dispute concerns whether Mr Magriplis-Hampton can meet the test required to obtain a "loss of earnings capacity certificate". In this regard s.325(e) (ii) of the Act provides that when a worker is under twenty-six years of age at the date of injury, he must establish that at the date of the hearing, he has a loss of earning capacity of forty per cent or more. Further, he must establish, 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 forty per cent or more.[1] That assessment is made on common law principles. Such principles are well understood.[2]

It can be seen that the Plaintiff's case is wholly dependent on proving that but for his injury he would be working as a subcontracting electrician earning $70 per hour over a 40 hour week.
This is where the Defendant focused its attack. It submitted first there was no evidence to support this assertion of the Plaintiff's ambition to work in such a role. Second it argued that there was scant evidence that he was going to receive that rate of pay consistently. Third that the full weeks or per annum rate of pay was not in evidence for such a worker and fourth there was very strong evidence of the Plaintiff's likely roles but for his injury, which showed earnings much less than his claimed $70 per hour for a full 40 hours per week.

Having reviewed all the evidence I find in favour of the Defendant. In answering the question posed in the application - is there a permanent 40% loss of earning capacity? - I first find that there has been a very significant injury to the Plaintiff's lumbar spine. He has serious pain and suffering consequences. It has, I find, rendered him unable to return to work as an electrician. This was conceded by the Defendant. Further that injury has left him able to work in a part-time capacity only. His evidence in this regard is unchallenged and I accept it.
Usual common law principles then apply.[5] This requires me to fix the earnings capacity the Plaintiff would have had but for his injuries as of today. The actual earnings are of use as an aid to make this assessment but are not determinative. To make this finding his trade qualifications must be considered and assumes great significance. He left school at a reasonably young age in year 10 and became an electrician. He completed his apprenticeship. His wife, who has known him since high school deposes that his trade qualification focused him on the earning potential of an electrician.[6] He worked 40 hours per week in a full-time employed role with either Co-Spark or Spendwatt prior to his injury. At the time of his injury he had worked as an employee for Spendwatt for three years. It seems he was consistently employed and there was no evidence that his work was substandard or that his work habits were anything other than reliable. There was no indication that he would work in other roles. I therefore find on the basis of very limited material that he would have worked as an electrician but for the injury on a full time basis.
Turning to the question of the capacity in which he would have worked - that is an employed or subcontract electrician. The Plaintiff states that he always intended owning his own business and maintaining a role as a hands-on electrician as well as doing administrative tasks associated with the business.[7] His second affidavit seems to imply that if he was to perform such a role he would obtain $70-$90 per hour for such a job.[8] It is here that the Plaintiff's argument seems to break down. Accepting the Plaintiff's evidence, as I do, the conclusion must be reached that but for the injury he would have remained as a hands-on electrician in his own business. On occasion he could bill the business $70-$90 per hour or subcontract out at that rate but this could not be for 40 hours each week because there was still, on his evidence, the administrative side of the business to run. The Plaintiff has deposed that such was his intention and in accepting that evidence I am bound to the conclusion that he must have devoted some part of his working week to the administrative aspects of the business. How much is unclear as the affidavit material doesn't go that far. It might be thought that he would do at least 40 hours per week hands on work if it was available and the administrative hours in addition. Alternative scenarios also arise however. For example, if additional employees were hired that would have increased the administrative load and potentially reduced the hands on hours. Such enquiries end in speculation and cannot be relied on to found findings.
Neither does the evidence detail how many hours per week or on an annualised basis a subcontracting electrician makes. This is despite a Flexi Personnel report being tendered. In it the author was asked to consider the wage rates of numerous positions for qualified electricians. They were not asked and did not opine on the wages payable to a contract qualified electrician. No affidavit material was tendered from a subcontracting electrician with comparable earnings.
The Defendant made much of this. Mr Middleton, who appeared on behalf of the Defendant, argued that a bald reference in the Plaintiff's affidavit to the hourly rate of pay he pays to a subcontracting electrician was not sound evidence on which to base a gross weekly figure. There is some force to this submission given the court can only assess the evidence before it. I therefore am unable to find, as the Plaintiff urges me to, that Mr Magriplis-Hampton would have been employed in the capacity of a subcontracting electrician earning $70 per hour for 40 hours per week resulting in average gross weekly wage of $2800 but for the injury.
I find rather that Mr Margriplis-Hampton but for his injury would have remained employed as an electrician. According to his evidence he would have begun operating his own business,[9] most probably in a situation where he did some work on the tools and some administrative work. I infer from the way he described his current business - At Your Maintenance - he would employ electricians and work 'hands-on' as needed. Given the state of the evidence I'm not able to fix an hourly injury earnings figure. Mr Stainstreet, an employee electrician with At Your Maintenance swore an affidavit but did not depose to what his earnings are. That would have assisted in attempting to answer that enquiry.
Turning aside from that proposition to consider the alternative way that the Plaintiff put the case, that rather than starting his own business the Plaintiff remained an employed electrician as at June 2021. The Flexi Personnel assessment report provides sound, credible evidence of Mr Margriplis-Hampton's likely positions and earnings but for the injury. These can be summarised as follows:[10]

(a) electrician on a union site: $2041 gross per week;

(d) electrician special class: $2289 gross per week;

In the Flexi Personnel reporting he advised the interviewer that he had performed electrician special class employment and enjoyed it. I also repeat his wife's evidence that after obtaining his qualifications he was focused on his potential earnings. In combination with the fact that the Plaintiff is a young man, married recently with a young child born last year it is logical to assume he would target the best paying job. I find therefore his earnings capacity would be that which is associated with an electrician special class of $2289 gross per week.
Against this is the earning capacity he presently has. The Defendant argued this was $80,632 or $1550 per week taken from his 2019/2020 tax return. I find that this is likely to be an inaccurate representation given it is only one year in time. A more likely accurate representation can be obtained by averaging the three preceding years which gives a figure of $74,359 or $1430 gross per week.
Applying the criteria then means that 60% of his earning capacity but for the injury of $2289 is $1373. Against this the evidence shows that the Plaintiff's current deployed earning capacity results in $1430 gross per week. This is more than the 60% threshold of his without injury earnings. Accordingly the Plaintiff cannot succeed.[11]
For the above reasons the Plaintiff's application will be denied. I will hear the parties as to the form of order and on the question of costs.

[2] State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 at [71]

[4] Plaintiff's Court Book ("PCB") 209-210, Exhibit D2

[9] In addition to his affidavit see Defendant's Court Book ("DCB") 179-203 exhibit P4

[10] PCB 176. Both electrician on a union site and electrician special class operate under an award which

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