Akgun v Moreland Bus Lines Pty Ltd
[2015] VCC 1722
•13 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
COMMERCIAL DIVISION
Case No. CI-14-05248
| SHANGIR AKGUN | Plaintiff |
| v | |
| MORELAND BUS LINES PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 October 2015 | |
DATE OF JUDGMENT: | 13 November 2015 | |
CASE MAY BE CITED AS: | Akgun v Moreland Bus Lines Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1722 | |
REASONS FOR JUDGMENT
---
Subject: Serious Injury
Catchwords: Claim by bus driver for loss and damage and economic loss arising out of alleged incident in October 2010; no record of incident occurring; failure by defendant to call employee; principle in Jones v Dunkel applied
Legislation Cited: Accident Compensation Act 1985; Evidence Act 2008
Cases Cited:Dodoro v Knighting (2004) 10 VR 277; Brigginshaw v Brigginshaw (1938) 60 CLR 336; Jones v Dunkel (1959) 101 CLR 298
Judgment: Application for leave to commence a damages claim is granted
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Clements QC with Mr E. Makowski | Zaparas Lawyers |
| For the Defendant | Mr A. Moulds QC with Ms M. Tait | TG Law |
HIS HONOUR:
Background
1 Mr Akgun is 61 years of age. He was born in Turkey and migrated to Australia in about 1971. In Turkey, he had commenced but not completed education to Year 9. Due to a lack of proficiency in English, an attempt to commence Year 12 studies in Australia was unsuccessful. In early years, he worked as a welder for the Ford Motor Company and undertook various other types of manual and factory work. At times, he worked for his father who operated a café. In the late 1970s he worked for GMH.
2 At some point, which he put at 1977 or 1978, but documentation relative to a workers compensation claim suggests was February 1980, he suffered a serious injury to his back. He said that he was tasked outside his usual responsibilities to move a large metal table and suffered the injury as a result.
3 In 1982, Mr Akgun returned to his native Turkey where he lived for some three years during which he undertook his compulsory military service. Returning to Australia in 1985, he lived in Mildura with his parents and undertook seasonal work including fruit picking.
4 His first marriage came to an end on return to Australia in 1986. He married for the second time and undertook some taxi driving in Melbourne before he moved to Mildura. He had remarried and continued working in Mildura and living with his second wife until 1999, when that second marriage terminated.
5 From 2000 to 2008, Mr Akgun worked as a coach driver for a number of bus companies, including Bell Street Bus Company, Sita Coaches and Firefly Express. His employment was interrupted by a lengthy custody dispute involving his children. At times, he was in receipt of Centrelink benefits.
6 In February 2009, Mr Akgun began employment with the defendant, Moreland Bus Lines Pty Ltd (“Moreland”), as a coach driver working as a charter bus driver. Generally, in this role, he drove bus number 82 which is licensed to carry 57 passengers.
7 According to Mr Akgun, the work which he undertook for Moreland each day was prescribed for him in a worksheet provided the previous day. Nevertheless, the work schedule was from-to-time modified at short notice by directions given to him over his mobile phone.
8 Mr Akgun said that his usual work for Moreland in late 2010 entailed him providing charter bus services to a girls’ grammar school known as Lowther Hall. On a date in October of that year he said he was waiting to commence his charter run at Lowther Hall when he received a call on his mobile telephone from one of his superiors at Moreland directing him to collect a group from the Langham Hotel at Southbank just across the river from the Melbourne CBD and convey them to Melbourne Airport.
9 Mr Akgun said that when he arrived he found a group of “strapping young people”. They were in some kind of school uniform. According to an affidavit which he swore in this proceeding:
“When I arrived with the bus, there was lots of heavy luggage. It was in the course of lifting heavy luggage and awkwardly loading it into the bus that I injured myself. I experienced significant low back pain and leg pain. I believe that part of the problem was that the luggage bin of the bus that I was driving was unsuitable for the particular job, and I had to move awkwardly when I was holding the luggage at the time of my injury.
I then asked a person whom I believed was the teacher to ask the students if they would assist with the loading of the luggage into the bus.
I managed to carry on with the job but my pain did not go away and I obtained some Voltaren to assist.” (Plaintiff’s Court Book “PCB” 14)
10 Under cross-examination by Mr Moulds QC for the defendant, Mr Akgun described it this way:
“After the first one [I got help], I put it in and I couldn’t manage it, I dropped it on me, then I asked a lady to ask kids to help me.” (Transcript “T” 60, Line(s) “L” 20-22)
11 Mr Akgun said that the following day he told the defendant’s Operations Manager [Mr Brendan McGrath] that he had strained his back. (PCB 14, paragraph 41)
12 Mr McGrath’s response, according to Mr Akgun, was “come on”. (PCB 21, paragraph 5)
13 Mr Akgun said that he concluded that he “badly strained some muscle in [his] back”. He said he hoped the problem would resolve and he kept working “despite the pain”. He obtained some medication. He then went on Christmas/New Year holidays, spending a lot of time resting and medicating himself. (PCB 15, paragraphs 42-44)
14 When his vacation period ended, according to his affidavit:
“…I returned to work on modified duties, essentially selling tickets on a track bus [viz a route bus not a charter bus]. However, this work involved bending and twisting and rotating my low back.” (PCB 15, paragraph 45)
15 This account is somewhat misleading. When Mr Akgun returned to work the schools were still on vacation. He was rostered to drive a “track” bus [viz a route bus rather than a charter bus] at that time. (T85) Driving a route bus requires a driver to sell tickets to the passengers but generally does not entail stowing luggage, as a driver of a charter bus would be required to do.
16 On his return to work in the new year of 2011, Mr Akgun, as he conceded in response to questions which I put, was undertaking the normal duties of a route bus driver in response to the requirements of his employer. The duties were in no way modified to meet the consequences of any injury he may have suffered the previous October. (T91-2)
17 According to an undated Incident Report Form filed by Mr Akgun with the defendant employer, he could “not turn back to normal sitting position, couldn’t straighten myself”. (PCB 120)
18 He was then put on modified duties acting as a “special school bus chaperone”, but the prolonged standing aggravated his injury. He ceased work on modified duties in March 2011. (PCB 15)
19 In mid-2011, Mr Akgun commenced work with Skylight Bus Lines, apparently an enterprise conducted by a friend of his. In the years 2013 and 2014, he undertook about 20 runs, driving a refrigerated delivery truck to Adelaide for a friend of his, Mr Ibrahim, who operates a bakery. (T98) He said that this was a favour done for a friend and also in the interests of his own emotional health. He denied that it was realistically paid employment. Mr Ibrahim gave him small amounts of money and “pocket money”, which he accepted only with reluctance. (T98-100)
20 Meanwhile, a WorkCover claim, which Mr Akgun lodged on 8 March 2011 (PCB 107-8), was rejected by the WorkCover Authority’s claims agent, CGU Insurance, on 6 April 2011. (PCB 111-112 and DCB 22) On 30 October 2012, solicitors acting for Mr Akgun issued proceedings in the Magistrates’ Court challenging the rejection of his WorkCover claim. (PCB 121-125) This proceeding in the Magistrates’ Court was settled by a Deed of Compromise on 10 July 2013 with the insurer denying liability by making claims of weekly compensation for one year and accepting liability for “medical and like expenses” for two years from 9 March 2011. (PCB 129)
21 As part of that settlement, Mr Akgun was required to make a statutory declaration to the effect that he had not performed any work between 9 March 2011 and 8 March 2012 (PCB 16). The evidence discloses, and he concedes, this was incorrect insofar as he had undertaken paid employment with Skylight Bus Lines. Mr Akgun accepts an obligation to refund the insurer but, as yet, has taken no steps. He says he is financially incapable of making the payment. Mr Akgun says he continues to be disabled, suffering from constant back pain with fluctuations in intensity. It radiates into both legs, but the right leg is worse. Two or three times a week, he said, his back will “seize up and become stuck”.
22 Mr Akgun says he takes Panadeine Forte and/or Voltaren for his back pain about four days each week. As a result, he said he is depressed. His pain is increased by prolonged sitting or prolonged walking. He tries to avoid sudden movements and bending. He cannot undertake vacuuming at home and has to rely upon his daughter. He cannot enjoy bushwalking, as he previously did. The contemplation of all these things leads him to “get very upset. I have become a sad and withdrawn person compared to a happy, outgoing and active hardworking man prior to the injury”. (PCB 22.2-22.3)
The present proceeding
23 Mr Akgun’s solicitors filed an Originating Motion on 28 October 2014 seeking leave on his behalf “to commence common law proceedings for a serious injury certificate pursuant to s134AB of the Accident Compensation Act 1985”. A draft Statement of Claim describes the incident as occurring “in or about October 2010 [whereby], the plaintiff was required to pick up and load heavy luggage, in consequence of which the plaintiff sustained injury and has suffered loss and damage”. (PCB 7)
Legal considerations
24 Section 134AB of the Accident Compensation Act 1985 precludes a worker suffering injury in the course of employment from obtaining damages with respect to that injury, except in accordance with the provisions of the section. The section authorises the recovery of such damages “if the injury is a serious injury and arose on or after 20 October 1999” (subs(2)).
25 “Serious injury” is defined in subs(37) as follows:
“(a)permanent serious long-term impairment or loss of a body function; or
(b)permanent serious disfigurement; or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d)loss of a foetus.”
26 Sub-section (38) of the Act includes important additional provisions as to the operation of these principles. Paragraph (b) of subs(38) provides:
“(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to –
(i)pain and suffering; or
(ii)loss of earning capacity –
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.”
27 The plaintiff relies upon paragraph (c) of the definition of “serious injury” only to the extent that it may be contended that the pain and restrictions of which he complains in his back are functionally driven.
28 The plaintiff in this case seeks damages, not only for pain and suffering, but also loss of earning capacity. By virtue of s134AB(38)(e) leave to bring proceedings for loss of earning capacity may only be granted where “the worker has a loss of earning capacity of 40 per centum or more…”.
29 In determining a loss of earning capacity according to paragraph (f) of s134AB(38), one compares the worker’s gross income which the worker is either earning or capable of earning in suitable employment at the relevant time, “whichever is the greater”, with the gross income which the worker is earning or capable of earning from personal exertion “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred”.
Expert opinions
30 Mr Akgun attended the Dalton Village Medical Centre in Epping on 17 February 2011 for treatment. Dr Hakan Baglar provided a report to Mr Akgun’s then solicitors by letter dated 2 May 2011. He noted that Mr Akgun had given a history of having suffered a low back injury whilst in the employment of General Motors Holden about 30 years ago. The doctor recalls Mr Akgun as describing the incident at the Langham Hotel as having occurred on 1 October 2010 and then “sometime in February 2011, during ticket sale, he had to rotate his spine and his low back came with vengeance”. According to Dr Baglar, Mr Akgun complained of back pain and stiffness and reduced range of movement of the low back “particularly early in the mornings”. On examination, Mr Akgun was found to have:
“…reasonable flexion but extension of his lumbosacral spine was painful and very restricted. He had reduced straight leg raising more on the right side. He had X-rays of spine earlier which indicated degenerative changes of his low back.” (PCB 40)
31 Following the rejection of Mr Akgun’s WorkCover claim, the doctor noted that Mr Akgun had a privately funded MRI scan. According to the doctor, this depicted not only degenerative changes but:
“…quite severe pathology at his low back. It was reported that he had bilateral L5 nerve root impingement at the L5/S1 neural foramina and more importantly, he had Grade 1 anterolisthesis at L5 on S1 with left sided sub acute L5 pars stress fracture. It is highly likely that this fracture may have happened during the stated lifting incidence (sic), on the 1st October 2010.” (PCB 41)
32 Dr Baglar provided a further report to Mr Akgun’s solicitors dated 13 May 2013, this time on the letterhead of “Clinique Mediterranean”. This report repeated the substance of the earlier one, concluding that Mr Akgun was unable to continue his pre-injury employment:
“…and he is buying his medications privately. He does not have capacity to work in his pre-injury employment and in any physical work. His low back pain gets aggravated with prolonged sitting and this state, when added to his education, training and experience, along with his very limited English, preclude any sedentary, or alternative employments. His state is permanent and not reversible.” (PCB 44)
33 The doctor provided a third report by way of letter dated 7 April 2015 (PCB 45-7) which generally covered the same ground as the earlier reports and concluded:
“In the light of history (sic) given to me by Cihangir [Akgun], I believe that his condition is consistent with the stated cause. When his low back condition discussed last time, he was unfit for any work. As I stated earlier, he followed his claim for a long while but then gave up his hopes and I did not consult him for his low back condition for some time.” (PCB 47)
34 The doctor gave a final report by way of letter dated 26 October 2015, stating, “I did not see him for a long time and do not know how he is managing his condition currently.” (PCB 47.2)
35 Dr Vida Dabestani of Wilandra Medical Clinic, referred Mr Akgun for an x-ray of his lumbar spine which was carried out by Epping Radiology on 7 February 2011. Dr Justin Roebert reported:
“Moderately severe loss of disc height and vacuum phenomenon noted at L3/4, L4/5 and L5/S1 with anterior osteophytic lipping. Mild anterolisthesis of L4 on 5 and L5 on S1. Facets are not well assessed but appear to be at least moderately degenerate. Pars interarticularis are not well visualised. Spina bifida occulta noted at S1. Minor S1 joint degeneration.” (PCB 48)
36 Dr Baglar referred Mr Akgun for an MRI of his lumbar spine which was carried out on 12 April 2011. This found a miscellany of degeneration and pathology at various levels. Radiologist, Dr Tony Tan, reached the following conclusion:
“Multi-level lumbar spondylosis and disc disease as detailed above. Bilateral L5 nerve root impingement at L5-S1 neural foramina. Grade one anterolisthesis at L5 on S1 with left sided sub-acute L5 pars stress fracture.” (PCB 49)
37 Mr Akgun’s present solicitors referred him for assessment to Mr David Brownbill, consultant neurosurgeon, who examined Mr Akgun on 20 March 2013. In his report dated 22 March 2013, Mr Brownbill noted, “low back, burning feeling in both legs and occasional tingling pain” as the symptoms which Mr Akgun reported to him. He took a history that Mr Akgun consumed four tablets of Voltaren per day as well as four or five tablets of Panadeine Forte, together with medication for emphysema, a thyroid problem and migraine.
38 Mr Brownbill commented upon the MRI and plain x-ray and concluded:
“Noting that this man did not have any ongoing back pain or activity restrictions before about October 2010 with the onset of back and bilateral leg pain following the lifting of a heavy case and reaching forward with it and the continuation of such pain since then in a fluctuating manner (with further increase of pain during a bus driving shift with repeated back twisting) and the radiological demonstration of multiple level lumbar spine degenerative changes, I consider that this man on probability sustained aggravation of pre-existing lumbar spine degenerative changes giving rise to back and leg pain which has continued. (PCB 53)
39 Mr Brownbill considered that Mr Akgun was not capable of returning to his pre-injury coach driving and “should avoid heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting”. (PCB 54)
40 Mr Akgun presented for re-assessment to Mr Brownbill at the request of his solicitors on 5 May 2015. Mr Brownbill reported on the re-assessment in a letter of the same day. Mr Brownbill noted:
“Examination on the 5th May 2015 has shown slight restriction of thoraco lumbar spinal movements. There is no objective neurological abnormality of the lower limbs. There were no signs of radiculopathy.
I again note that radiological investigations have demonstrated long-standing multiple level lumbar spine degenerative changes with intervertebral disc derangement.
As stated in my earlier report on the information provided I consider that this man on probability sustained aggravation of pre existing lumbar spine degenerative changes giving rise to back pain and leg pain which has continued.”
41 He repeated his comment that Mr Akgun should avoid future activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. (PCB 58)
42 Mr Akgun attended neurologist, Mr Leslie J Roberts, for medico-legal purposes on 30 May 2013 who provided a letter by way of report on the same date to Mr Akgun’s solicitors. Mr Roberts noted long-standing degenerative spinal disease, “and possibly some radicular involvement although there are no definite clinical signs to indicate nerve root compression”. He said, “it is…likely that his work has aggravated a pre-existing condition”. (PCB 67)
43 Mr Roberts felt that the aggravation occurred on two occasions. The second occasion was 4 February 2011 and inferentially the first occasion was in October 2010. (PCB 68) Mr Roberts said that, “The prognosis for recovery of his back condition is, in my view, poor although with some hydrotherapy and gentle physiotherapy, pain management and treatment of the psychological issues, he may obtain some improvement in the control of his symptoms.” (PCB 69)
44 Mr Akgun attended Mr Charles Flanc, vascular and general surgeon, for medico-legal purposes on 12 April 2013. Mr Flanc provided a letter by way of report to the solicitors dated 15 April 2013. Mr Flanc took a history of the incident at the Langham Hotel as follows:
“He loaded the first suitcase without difficulty. The second suitcase was particularly high and heavy, weighing perhaps 30 to 40 kilograms. As he lifted, he felt a sudden ‘burning’ in the lower back.” (PCB 72)
45 According to Mr Flanc’s history as taken, the first treatment sought by Mr Akgun following the incident in October 2010 was a the Wilandra Medical Clinic from Dr Vida Dabestani on 7 February 2011. (PCB 72)
46 Mr Flanc suggested assessment by a neurologist. He said that Mr Akgun’s condition had stabilised and he was “suffering from severe back pain”. (PCB 77)
47 Mr Flanc provided a further report by way of letter dated 1 July 2013, where he was asked to comment upon reports from Mr Clive Jones, orthopaedic surgeon, and Dr Leslie Roberts, neurologist. Mr Flanc noted Mr Jones’ comments to the effect that the employer disputed the occurrence in October 2010 but that this was the history given to Dr Roberts. Mr Flanc said:
“My conclusion on this matter is that if an incident did occur as described by Mr Akgun then this would be consistent with the significant aggravation of the pre-existing degenerative condition of his lumbar spine in the sense that it became symptomatic and remained symptomatic.”
48 Mr Flanc said he agreed with Mr Jones’ comment that Mr Akgun impressed as “a truthful and genuine individual”. (PCB 79)
49 Also in the course of 2013, for medico-legal purposes, Mr Akgun was assessed by Mr Peter Kudelka, orthopaedic surgeon, who examined on 1 July 2013 and provided a report dated 5 July 2013.
50 Mr Kudelka diagnosed, “Injury-aggravated degenerative changes in the lower lumbar spine”. He said that the symptoms could be “related directly to the aggravation 1.10.2010”. He said that Mr Akgun was unfit to work as a bus driver and should seek alternative duties of a clerical or administrative nature not involving mechanical strains of his back and not driving a transport vehicle. (PCB 81)
51 Mr Akgun’s solicitors sent him for assessment to Dr Joseph Slesenger, a specialist occupational physician. The assessment was carried out on 17 September 2015 and the doctor provided his report by way of letter dated 29 September 2015. Dr Slesenger referred to the reports of Dr Roberts, Mr Brownbill and Mr Jones and to the lumbar spine MRI of 12 April 2011. According to Dr Slesenger:
“Mr Akgun is currently unfit to return to his pre-injury duties. I note the manual handling requirements, the posture requirements (prolonged sitting) and I am of the opinion that he cannot return to these duties.
With regard to alternative duties, he has a theoretical capacity for work, with the following restrictions:
·No push/pull/carry/lift over 5kgs;
·Limited driving (up to 90 minutes per day);
·Sedentary duties;
·4 hours a day, 4 days a week.
However, given the variability in symptoms, I am not optimistic that he will be able to attend work on a reliable and consistent basis.”
52 The doctor felt that Mr Akgun has potential for improvement. He said:
“The prognosis must be guarded. I note the chronicity of Mr Akgun’s symptoms and his job detachment. I also note the absence of his transferrable skills or qualifications and I note his age. On balance of probabilities, I do not anticipate him returning to work performing his perjury [scil pre-injury] duties and I have reservations with regard to his employability in an open job market.” (PCB 91)
53 Dr Slesenger provided a supplementary report dated 22 October 2015. The doctor was asked to comment upon a vocational assessment report which suggested occupations for Mr Akgun:
· weighbridge operator;
· customer service officer;
· shuttle bus driver;
· mobile camera operator.
54 As to weighbridge operator, Dr Slesenger had reservations because the task might include some security duties and patrol. As a customer service officer, the doctor felt that Mr Akgun could perform the tasks but in an airport carpark he was concerned that Mr Akgun would not be able to walk the necessary long distances. The doctor felt that Mr Akgun could operate as a shuttle bus driver on the basis that there is no requirement to lift luggage. The doctor advised against Mr Akgun being employed as a mobile camera operator [this appears to be a reference to the operation of speed traps] on the basis that it would require setting up a camera weighing up to 10 kilograms and might also include requirements to sit and stand and perhaps walk long distances. (PCB 92.2-92.3)
55 Shortly before the hearing, Mr Akgun attended Dr Clayton Thomas, a consultant in rehabilitation pain medicine, for medico-legal purposes. Dr Thomas provided a report by way of letter dated 5 October. In the history which he gave of the incident at the Langham Hotel, he informed Dr Thomas that, as he had told Mr Flanc, the incident occurred upon his attempt to lift a second (rather than the first) case. (PCB 93) Dr Thomas said:
“Mr Akgun has fairly advanced multilevel degenerative disc disease. In addition, at the L5-S1 level there is “impingement of the exiting right L5 nerve.” This accounts for his persistent back pain and right sciatica. There is certainly no evidence of radiculopathy here.” (PCB 94)
56 Dr Thomas said:
“He is not fit for work. He would not be able to return to work in the bus industry. He would not be able to return to work bus driving. He would not be able to perform any of the work that he has done throughout his working life. He has never worked in an office environment. Although he presents himself well, he reports that his English literacy skills are poor. Overall, he does not have work capacity and this will be indefinite here.” (PCB 95)
57 Later still, on 15 October, Mr Akgun presented for assessment by consultant psychiatrist, Dr Nathan Serry. The doctor reported by letter of the same date. He noted receipt of four reports from Dr Baglar, a report from Dr Roberts, two reports from Mr Flanc, a report from Mr Kudelka, two reports from Mr Brownbill and two reports from Mr Jones. Dr Serry said:
“Diagnostically, I am of the opinion that your client has a chronic adjustment disorder with anxious and depressed mood, a condition which has arisen as a direct result of his workplace physical injury.” (PCB 103)
58 Dr Serry said:
“Your client’s prognosis is guarded. He has persistent physical and psychiatric symptomatology with ongoing nexus between the two. As it does appear to be likely given chronicity and the expert reports you have obtained that your client’s pain will persist, I would also expect his anxiety and depression to be long standing in nature.” (PCB 104)
59 Mr Akgun was then seen for assessment on 19 October 2015 by Professor Richard Bittar. Professor Bittar implicated the ergonomic arrangements which Mr Akgun operated with whilst driving his charter bus. He said that the bus:
“…had a clutch and gear stick placed further forward than in the majority of other vehicles. As a result he [Mr Akgun] had to sit towards the front edge of his seat in order to be able to reach the gear stick and clutch, and would therefore repetitively reach forwards and flex his back in order to do so. In addition to the suboptimal ergonomic arrangement of his seat, clutch and gearstick, he was required to undertake repetitive and frequently heavy lifting of passengers’ luggage in order to load and unload them into the trunk of the bus.”
60 According to the professor:
“The onset of his symptoms occurred during the course of heavy lifting of luggage in either September or October 2010. He experienced lower back pain at that time and had six weeks off work. He then returned to work with ongoing symptoms. His condition deteriorated whilst driving the bus in February 2011. He has not worked since around that time.” (PCB 106.1-2)
61 Referring to the results of the MRI scan of April 2011, the professor said:
“The changes on MRI scanning (subacute L5 para fracture) fit very well with the timing of his symptom onset, and support the opinion that his condition is work-related.” (PCB 106.3)
62 The professor said Mr Akgun’s long-term prognosis was poor. (PCB 106.4)
63 The WorkCover insurer requested the defendant to attend Mr Clive Jones, orthopaedic surgeon, for assessment on 30 March 2011. Mr Jones took a history of the incident at the Langham Hotel though, as he records it, this was an attendance “to take a passenger to the airport”. (Defendant’s Court Book “DCB” 18)
64 Mr Jones noted that Mr Akgun “presented in a genuine and straightforward manner”. (Ibid) Mr Jones referred to the plain x-ray which was taken on 7 February describing it as showing “quite marked disc degeneration at the L3-4, L4-5 and L5-S1 levels”. Mr Jones concluded that:
“The back was aggravated by lifting passenger baggage into the bus bag luggage bin…This is clearly an aggravation of a pre-existing back problem, which looking at the x-rays, goes back for many years.” (DCB 19)
65 Mr Jones concluded that employment was still materially contributing to the current setting. (DCB 20) Mr Jones provided a supplementary report dated 6 April 2011, noting Moreland’s denial that the event at the Langham Hotel had taken place. He concluded that the insurer “may be able to deny your responsibility on those grounds”.
66 Mr Jones provided a further report to the defendant’s solicitors dated 21 June 2013. Reporting on an assessment for medico-legal purposes which occurred on 20 June that year, Mr Jones referred to the MRI report. He said:
“I note that there is some doubt as to whether the relied upon injury actually took place. It is quite clear he had an abnormal spine at the time this occurred and there may have been a temporary relationship to employment by way of aggravation…At this stage, employment with Moreland Bus Lines would appear to be an insignificant contributory factor.” (DCB 32)
67 Mr Akgun was seen by Dr Dominic Yong, a specialist occupational physician, for medico-legal purposes at the request of the defendant’s solicitors on 10 September this year. Dr Yong took a history of the incident at the Langham Hotel and the breakdown of Mr Akgun’s back in February the following year. Dr Yong said that Mr Akgun had a current capacity for work with the following restrictions:
· avoid repeated bending and twisting the back;
· avoid repeated firm pushing or pulling;
· vary posture regularly between sitting, standing and walking;
· avoid lifting more than 5kg on a repeated basis;
· reduction in working hours. (DCB 41)
68 He referred to possible employment as:
· weighbridge operator;
· customer service officer;
· shuttle bus driver;
· mobile camera operator.
69 This is the group of occupations upon which the plaintiff’s expert, Dr Slesenger, was asked to opine.
70 Dr Yong provided a supplementary report to the solicitors dated 8 October 2015, reiterating generally what he had said in his first report. He said that he would initially recommend Mr Akgun commencing to work three hour shifts for three days per week, increasing to 20 hours per week over a three month period. “He would then require reassessment to determine whether a further increase in hours can occur, and the rate of increase.” (DCB 47)
Earning capacity
71 The plaintiff’s case on earning capacity is that, either after the accident he has no earning capacity, and the loss is therefore 100 per cent, or that even if Dr Yong is correct and the plaintiff was able to work 20 hours a week in one of the nominated occupations such as shuttle bus operator or weighbridge operator, his earnings would be less than 60 per cent of his earning capacity before the accident. Therefore, the loss of earning capacity would be greater than 40 per cent. (T30-33)
Defendant’s position
72 Mr Moulds QC, who appeared with Ms Tait for the defendant, stated that the evidence before the court, if accepted, would establish that Mr Akgun had suffered a serious injury both with respect to issues of pain and suffering and economic loss. (T121, L11 & 12)
73 The defendant took its stand in opposing the application on the basis that no finding should be made that the incident described by the plaintiff at the Langham Hotel in October 2010 occurred.
74 It is plain from the draft Statement of Claim, from which I quoted earlier, that the plaintiff’s application and the proposed damages claim which he seeks leave to pursue is based squarely upon the occurrence of an injury to his low back at the Langham Hotel sometime in October 2010. Unless a finding is made on the balance of probabilities that this event occurred, this application must fail.
The Langham incident?
75 The defendant’s stand concurs with the position taken by the workers compensation insurer, CGU, in denying liability for the WorkCover claim. The defendant relied upon an affidavit sworn by Mr Michael Wright of 26 October 2015 which he made as the defendant’s general manager.
76 According to Mr Wright’s affidavit, the incident at the Langham Hotel was first reported to Operations Manager, Mr Brendan McGrath, in February 2011. No incident report was furnished in October 2010. Mr Wright said, “After speaking with Brendan McGrath he informed me that the worker claimed he injured his back whilst loading luggage at the Langham Hotel…”.
77 Mr Clements QC, who appeared with Mr Makowski on behalf of the plaintiff, objected to the receipt of this portion of Mr Wright’s affidavit which was challenged as hearsay.
78 Mr Moulds and Ms Tait referred to no relevant exception to the hearsay rule in the Evidence Act 2008. Rather, they submitted that under 43.03(2), hearsay material was admissible in the form of a statement based on information and belief “if the grounds are set out”.
79 Mr Clements and Mr Makowski did not deny that the relevant portions were made on information and belief and that the grounds of the information and belief were set out. They submitted, however, that this was not an interlocutory application for the purposes of the sub-rule.
80 Mr Moulds and Ms Tait relied upon a judgment of a five judge Court of Appeal decision in Dodoro v Knighting (2004) 10 VR 277.
81 An application was made to this Court under s93 of the Transport Accident Act 1986 for leave to commence a damages claim on the basis that the plaintiff had suffered a serious injury. Following a dismissal of that application, the plaintiff purported to appeal to the court.
82 The principal judgment was given by Callaway JA. His Honour said
“The natural reading of s.93(4)(d) is that an application for “leave to bring” common law proceedings is not a principal cause but a preliminary step. An application pursuant to s.93(4)(d) is a proceeding, but it is not a principal cause. Like an application for leave to appeal to the Trial Division or to this Court or an application for special leave to appeal to the High Court, it is no more than a preliminary application. Indeed, because there is no cause of action, the application has an even more preliminary character: not only is there, as yet, no principal cause, but there is not even a cause of action. (2004) 10 VR 277, 283 [23]
83 Mr Clements and Mr Makowski submitted that a distinction should be drawn between applications to bring damages claims pursuant to the Transport Accident Act and the Accident Compensation Act. They cited no authority, though contended that such authority existed.
84 The reasoning of Callaway JA, which was accepted by the other members of the court, seems equally applicable to s134AB of the Accident Compensation Act as it is to s93 of the Transport Accident Act.
85 The result is that an order refusing leave in this proceeding and, a fortiori, an order granting leave to bring a damages claim, would be an interlocutory order. This would support the view that an application for such an order would be, in the words of Callaway JA, “no more than a preliminary application”. The rules therefore permit me to receive hearsay evidence.
86 Nevertheless, the failure to produce Mr McGrath as a deponent and as someone available for cross-examination, which was entirely unexplained, may lead to adverse inferences against the defendant – a matter to which I will return presently.
87 Mr Wright deposed that he had:
“Checked all Moreland Bus Lines Pty Ltd tax invoices for the period September 2010 to December 2010 and can find no record of Moreland Bus Lines Pty Ltd providing charter services to or from the Langham Hotel.”
88 He said that he had also checked Mr Akgun’s “driver instructions”, that is, his daily schedule, and none provided for him to provide charter services to or from the Langham Hotel. Mr Wright said further that, if a charter service had been provided from the Langham Hotel, it would have been included in a diary kept by Mr Geoff Thomas as charter co-ordinator to enable tax invoices to be entered. (DCB 15)
89 Mr Thomas swore an affidavit which was to the same effect and added that even last minute bookings were included in the diary and the computer system known as “TIMS”. (DCB 4)
90 Mr Clements and Mr Makowski submitted that Mr Wright’s affidavit should be rejected out of hand because the defendant’s invoice records as disclosed showed a number of services provided from the Langham Hotel. (PCB 142-9)
91 It was not suggested, however, that any of those services corresponded with the incident at which the plaintiff says he was injured. The plaintiff conceded that this job was not recorded on any of his worksheets.
92 Mr Moulds and Ms Tait attacked the credit of the plaintiff, noting he made a Statutory Declaration that he had not worked in the period for which he was seeking WorkCover payments, when the evidence disclosed that this was untrue. This is conceded by the plaintiff, who acknowledges an obligation to make restitution, but has taken no step – at this stage – to provide that restitution. Again, there is inconsistency in the manner in which the plaintiff has reported the Langham Hotel incident to various people and in various circumstances.
93 In cross-examination, Mr Akgun described his arrival at the Langham Hotel at 3pm on the relevant day, having received a phone call directing him to that job at sometime between 2pm and 2.30pm. (T55, L4 & 16) The Incident Report Form lodged with the defendant described this incident as occurring at 11am. (PCB 119)
94 In some accounts given to doctors, the injury took place whilst Mr Akgun was lifting the first suitcase. In others, including in the Incident Report Form, the injury occurred as a result of his lifting the second.
95 Mr Moulds asked Mr Akgun in cross-examination:
“At what point did you seek advice from your doctor relative to this trip from Langham to Tullamarine? --- I can’t remember, but I went to see my family doctor, Dr Kahraman. I think either the next day or the day after, sir, I’m not too sure.” (Dr Kahraman is a Turkish speaking doctor)(T56, L15-19)
96 Reference to Dr Kahraman’s clinical notes, however, discloses no such attendance. (DCB 396-427) There was, apparently, a consultation with the doctor on 2 October which, according to a number of the accounts given to medical practitioners, was the day after the occurrence of the injury where a large number of prescriptions were updated. The consultation seems to have concentrated exclusively on Mr Akgun’s pulmonary difficulties. He suffers from asthma and emphysema. The doctor was seeking to have him reduce or eliminate cigarette smoking. The note of the consultation observes, “Reduced amount of cigarettes, but not interested in stopping and know it will only damage his health…”
97 On 19 November (at DCB 405) a consultation is recorded which relates to a sore throat and pulmonary issues. Again, no reference to low back pain.
98 A follow-up consultation as to these respiratory issues occurred on 20 November. (DCB 404-5) The first consultation relative to back pain in the relevant period occurred on 5 February 2011. The note begins:
“Bus driver at pvt charter and lifting luggage, not at presnet (sic). Last Tuesday while driving bus, felt lower back spasm, denies ay (sic) trauma or injuries or fall, no heavy lifting on that day…”
99 The doctor took a history, “Twenty years ago LBP and W/C at Holden General Motor – told disc related, not for surgery and improved with physio, no probs for while, W/C closed at that time.”
100 In his principal affidavit, Mr Akgun describes his attendance on Dr Kahraman as “in early 2011” (PCB 15, paragraph 48) which is, of course, consistent with the doctor’s clinical records. In his second affidavit, at paragraph 7 (PCB 19), he said, “In paragraph 48 of my affidavit, I stated that Dr Kahraman prescribed me medication in early 2011. This is not the case.” The attendance upon Dr Kahraman is not dealt with in any of his other affidavits.
101 The first visit to Dr Kahraman relative to low back pain seems to be on 5 February and this was the way the case was opened by Mr Clements. (T12, L18) Mr Clements submitted, faintly, I thought, that perhaps Mr Akgun had told Dr Kahraman about his back problem at an earlier stage given that upon Mr Akgun’s evidence he attended the surgery with his mother. I have to say that I regard that as somewhat implausible, particularly when, as noted, the attendance upon Dr Kahraman was not even a part of Mr Clements’ opening.
102 In the circumstances, it is difficult to avoid the conclusion that the complaint of back pain to Dr Kahraman, immediately after the incident at the Langham Hotel in October 2010, was a recent invention. In substance, the defendant has invited me to regard the entire event at the Langham Hotel in October 2010 as a recent invention.
103 Putting to one side for a moment whether it is an invention at all, Mr Jack Thai, physiotherapist, records a consultation on 15 February 2011 where he took a history, “Phx: four months ago lifting heavy luggage felt strain in Lx. No improvement. Stiff and painful, bilat heaviness in L > R with walking.” (DCB 386)
104 On the other hand, when Dr Kahraman apparently said that he could not take on another WorkCover patient and Mr Akgun consulted Dr Vida Dabestani on 7 February, her history recorded, “Lower back pain, gradual onset whilst driving. Initially just a twinge but worse every day, lower back some radiation to sides. No radiation down legs...” (DCB 392) No reference to the alleged incident the previous October at the Langham Hotel.
105 Mr Akgun gave a history of the Langham Hotel incident to Mr Jones on 30 March and he included it in his report of the incident where he was transfixed in the driver’s seat on 4 February. (PCB 119-120)
106 In all these circumstances, Mr Clements QC and Mr Makowski submitted that the defendant’s case amounted to an allegation of fraud against Mr Akgun. Such a finding, they said, could be made only in accordance with the well-known principle stated by Sir Owen Dixon in his Judgment in Brigginshaw v Brigginshaw (1938) 60 CLR 336, as now codified in s140 of the Evidence Act.
107 Mr Moulds did not deny the importance of these principles but noted that the burden of proof in this application lies upon the plaintiff and neither Brigginshaw nor s140 reverses that onus.
108 The matter is finely balanced. The plaintiff’s credit is impaired by the incorrect Statutory Declaration which he made in his WorkCover application and by the plainly incorrect evidence that he gave as to an immediate report of injury in October 2010 made to Dr Kahraman. The reliability of the defendant’s evidence is open to question by reason of the plainly incorrect assertion that, during the relevant period, no pick-ups were made at the Langham Hotel.
109 What ultimately tips the balance in the plaintiff’s favour – leading me, with the utmost hesitation, to accept his evidence that the incident did occur at the Langham Hotel as described – is the failure by the defendant to produce, as a deponent, its Operations Manager, Mr McGrath, to whom the plaintiff said he made an immediate oral report of the incident.
110 In accordance with the well-known principle of Jones v Dunkel (1959) 101 CLR 298, I may legitimately conclude that Mr McGrath’s evidence (had he been made available as a deponent) would not have assisted the defendant. This, likewise, enables me with greater confidence to accept the evidence of the plaintiff.
111 Mr McGrath is clearly in the defendant’s camp and there was absolutely no explanation as to his failure to make an affidavit.
112 The incident described by Mr Akgun is the very sort of incident which one could imagine a driver carrying out the duties which he was carrying out as a charter driver might have. Why might Mr Akgun fabricate this incident? My immediate thought was that the Langham Hotel incident as described included a particular traumatic incident which would be an apparently plausible basis for a negligence claim for damages in a way that the event of February 2011, with the absence of any immediate trauma, might be. If I accept that as a plausible reason why Mr Akgun would make up the incident in October, I ask myself why, if he were seeking to do such a thing, would he not have attributed the low back injury to one of the many jobs which he no doubt did undertake in October 2010?
113 In those circumstances, a challenge to the occurrence of the event could no doubt be made on the basis of the lack of any contemporary written record of the occurrence, but it could not have been challenged by reference to contentions that Mr Akgun was not working as a charter driver at the relevant place where the event allegedly occurred.
114 Once accepting that the incident did occur at the Langham Hotel in October 2010 as described by Mr Akgun, I see no reason not to accept his evidence that he suffered ongoing pain and stiffness until the further incident in February 2011.
115 In these circumstances, the application for leave to commence a damages claim is granted.
5
0