Anderson v State Electricity Commission of Victoria

[2011] VCC 1367

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-01854

RODNEY THOMAS ANDERSON	Plaintiff
v
STATE ELECTRICITY COMMISSION OF VICTORIA	Defendant

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 23 September 2011
DATE OF JUDGMENT:	21 October 2011
CASE MAY BE CITED AS:	Anderson v State Electricity Commission of Victoria
MEDIUM NEUTRAL CITATION:	[2011] VCC 1367

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Serious Injury - Section 135A Accident Compensation Act 1985 – Whether the worker’s respiratory disease was a “serious injury” within the definition contained in s.135A(19) of the Act – whether the worker’s respiratory disease was materially contributed to by employment – whether the worker’s injury was an aggravation of a pre-existing condition – whether the Court is bound by the principles of Petkovski v Galletti [1994] 1 VR 436; Grech v Orica Australia Pty Ltd (2006) 14 VR 602 – Section 135AC of the Act – where the worker’s cause of action arose before 12 November 1997 – whether his application for determination under s.135A(2B) had been made before the expiration of three years after the date his incapacity became known.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M A Hartley SC with	Holding Redlich
Mr S D Dawson
For the Defendant	Mr C Miles	Wisewould Mahony Lawyers
HIS HONOUR:

1          Rodney Anderson experienced respiratory problems as far back as 1978. From that time, he regularly coughed blood-stained sputum and experienced coughing and breathing problems.

2          Mr Anderson had worked in a variety of dusty environments with various employers between 1977 and 1989. His initial exposure to dust appears to have been in the course of his employment between 1977 and 1979, when he worked with Gippsland Cement in Traralgon and was exposed to significant quantities of cement and limestone dust. He has already commenced legal proceedings in the Supreme Court of Victoria against the companies that employed him during that period. That proceeding is yet to be heard.

3          Between 1982 and 1985, Mr Anderson was employed by Bestobell Pty Ltd and, in the course of his employment with that company, was exposed to asbestos dust at the Hazelwood Power Station, and later at the Longford Gas Plant. Throughout that period of employment, Mr Anderson continued to have problems with his breathing, including some breathlessness, coughing up blood, soreness of throat, hoarseness and headaches. Nevertheless, he was capable of working on a full-time basis and was capable of carrying out his employment duties.

4          Between 1985 and 1989, Mr Anderson was employed with the State Electricity Commission of Victoria (“SEC”), the defendant in this proceeding. He was initially employed at the Morwell Briquette Power Station, where he was exposed to coal dust in the course of shovelling of coal and of using air blasting equipment. Similarly, he was exposed to high levels of coal dust when working as a boiler attendant at that station. In 1987, he was transferred by the SEC to the Loy Yang Power Station where he worked as a plant operator. He continued to be exposed to coal dust whilst performing work cleaning and shovelling coal dust.

5          In 1989, Mr Anderson ceased his employment with the SEC, not because of any respiratory or other physical reasons, but as a consequence of problems connected with custody of his children following the break-up of his marriage.

6          He did not work between 1989 and 1992, following which he resumed employment for various employers, until finally ceasing employment in 1995. He does not believe that he was exposed to dusts of any significance after 1989.

7          Following the cessation of his employment with the SEC in 1989, Mr Anderson’s respiratory problems worsened. His breathing deteriorated to the point where, in 1995, whilst working as a tyre fitter, he became physically unable to continue in employment. Thereafter, he received sickness benefits and later, a disability pension, which he receives up to the present date.

8 Mr Anderson seeks the leave of this Court to issue a proceeding against the SEC to recover damages in respect of his respiratory injury. His right to do so is governed by the provisions of s.135A of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that the injury suffered by him is a “serious injury”.[1]

[1] Section 135A(3)(b)

9          The term “serious injury” is defined in sub-s.135A(19), insofar as is relevant to this application, as “a serious long-term impairment or loss of a body function”.

10        The body function the subject of this application is the lung function.

11        In order to succeed in his application, Mr Anderson must satisfy the Court that the consequences of his injury are serious. In order that an injury be considered “serious”:

(a)	the consequences of the injury must be serious to Mr Anderson;
(b)	those consequences may relate to pecuniary disadvantage and/or pain and suffering; and
(c)	the question to be asked is whether the injury, when judged by a comparison with other cases in the range of possible impairments or losses, can fairly be described as being at least “very considerable” and more than “significant” or “marked”.[2]

[2]             Humphries & Anor v Poljak [1992] 2 VR 129 at 140

12 The defendant disputes that Mr Anderson’s injury is a “serious injury” within the meaning of that term as defined in s.135A (19) of the Act.

13 Further, it alleges that Mr Anderson is out of time in bringing any claim for damages against the defendant in respect of his injury by reason of the provisions of s.135AC of the Act because his incapacity was known more than three years before he made application to the Authority under s.135A(2B) of the Act.

14 The parties agreed that I should, at this time, hear and determine whether or not Mr Anderson’s claim is effectively barred by the provisions of s.135AC. This approach is consistent with the decision of the Court of Appeal in Paget v JLT Workers’ Compensation Services Pty Ltd and Glenelg Shire Council.[3]

[3] [2005] VSCA 144, at paragraph 22

15        It is common ground between the parties that:

(a)	The relevant cause of action that Mr Anderson alleges against the defendant arose prior to 12 November 1997 (and relates to the period of his employment between 1985 and 1989);
(b)	Mr Anderson made an application for determination under s.135A(2B) of the Act to the Victorian WorkCover Authority on 23 December 2008.

16 It follows from the matters set out in the previous paragraph that if Mr Anderson’s incapacity was known before 23 December 2005, he would not be permitted to bring a proceeding for damages against the defendant pursuant to s.135A of the Act.

17        Mr Anderson alleges that he did not know of “the incapacity” arising from his employment with the SEC until after that date. The defendant disputes this.

18        In this proceeding, Mr Anderson seeks the following:

(a)	an Order granting leave to him to commence proceedings at common law pursuant to s.135A(4)(b) of the Act to recover damages in respect of injury suffered by him during the course of his employment with the defendant between September 1985 and August 1989; and
(b)	a Declaration that the application dated 22 December 2008 made pursuant to s.135A(2B) of the Act was made before the expiration of three years after the incapacity arising from the injury sustained by him during the course of his employment became known.

19 A further declaration had originally been sought that Mr Anderson had suffered a “serious injury” within the meaning of s.135A(3) of the Act. During the course of the hearing, counsel for the plaintiff advised me that that such claim was abandoned.

20        Accordingly, the issues to be determined in this proceeding are:

(a)	On what date did Mr Anderson’s incapacity arising from the injury suffered in the course of his employment with the defendant become known within the meaning of s.135AC(b).
(b)	Whether the consequences of the injury suffered by Mr Anderson in the course of his employment with the defendant are at least “very considerable” and more than “significant” or “marked”.

21        It is convenient to first consider the injury alleged by Mr Anderson and its consequences for him, and then consider the date upon which the incapacity arising from that injury became known.

The Injury and its Consequences for Mr Anderson

22        Mr Anderson suffers from significant symptoms:

ƒ	he produces blood stained sputum;
ƒ	he has a chronic cough;
ƒ	his throat is sore;
ƒ	he suffers from breathlessness;

ƒ he is hoarse;

ƒ he has headaches;

ƒ	he has recurrent chest infections;
ƒ	he has chest pain requiring OxyContin, a narcotic painkiller.

23        Notwithstanding earlier symptoms of lung disease, he was able to cope with his employment with the SEC. There is no evidence that he took time off work as a consequence of the condition. When he resigned from that employment, he did so as a consequence of family and marital problems that he was experiencing.

24        His condition deteriorated following the cessation of his employment with the SEC. In 1992, he returned to work as a lagger for Flakt Holland. He was not exposed to dusts during that period of about nine months. His breathing continued to deteriorate. In 1992, he was forced to give up playing indoor cricket, an energetic game, because of breathing difficulties. By 1995, his lung condition effectively prevented him from working on. He was working at that point as a tyre fitter for Beaurepaires. He lasted only three months because of shortness of breath and an inability to physically perform his duties. He has not worked since that time.

25        In December 2001, Mr Anderson was referred to a physician, Dr Marantos. Initially it would seem that he considered it significant that Mr Anderson had been exposed, in the course of his earlier employment, to asbestos. The suspicion was that his lung symptoms were related to that exposure. Extensive testing however, revealed no asbestos-related disease.

26        In September 2005, Dr Marantos diagnosed chronic bronchitis secondary to occupational dust exposure. He considered that in the future, he may develop mesothelioma or a primary lung cancer. However, at that time, such diagnosis was not confirmed and this has remained the case up until the present.

27        Mr Anderson has regularly been treated by way of a nebuliser and had regular steam inhalations.

28        In September 2010, Dr Marantos considered that Mr Anderson had chronic bronchitis, most likely related to occupational exposure. He considered that his respiratory condition was then stable. Based on lung function tests that had been conducted, he considered that Mr Anderson’s estimated disability was in the order of 50-60 per cent reduction of lung function.

29        In March 2006, Mr Anderson was referred to Associate Professor Mark Holmes. At that time, he considered that Mr Anderson’s chronic cough and haemoptysis (coughing up of blood) was temporally related to exposure to dust in the workplace, in particular, cement dust and limestone dust, when he first worked in the cement factory around 1978. He thought that Mr Anderson’s severe right-sided chest pain was probably musculoskeletal. Although he had some thoracic spine disease, chronic coughing may also have been a significant contributor to his chest pain. He noted that the ongoing chest pain was not controlled with opiate pain relief (OxyContin) and, as such, he thought that Mr Anderson had a pain syndrome.[4]

[4]             PCB 44

30        In April 2006, Professor Holmes considered that Mr Anderson’s chronic bronchitis and haemoptysis were likely related to his previous exposure to various dusts in the workplace, including cement, asbestos and coal dust. He thought that chest pain was related to constant coughing and/or thoracic spine disease. He thought that the thoracic spine disease may also be related to previous coughing. He thought that the subsequent pain syndrome was linked to occupational exposures. He considered that Mr Anderson was severely disabled such that he had not been able to participate in the workforce since 1995 and that his daily functioning was severely limited.[5]

[5]             PCB 44

31        Professor Holmes re-examined Mr Anderson in November 2008 and August 2011[6]. His views remained unchanged. He believed that Mr Anderson had chronic bronchitis and haemoptysis likely due to his previous exposure to various dusts in the workplace, including cement, asbestos and coal dust.

[6]             PCB 49

32        Mr Anderson was referred to a respiratory physician, Associate Professor Scicchitano, in early 2004. Professor Scicchitano was unsure as to the cause of Mr Anderson’s pleural disease.[7]

[7]             DCB 39

33        Mr Anderson was referred to an orthopaedic surgeon, Mr Osti, in early 2010 in relation to his ongoing chest pain. He considered that Mr Anderson’s prevalent and constant chest pain was likely to be mainly related to his lung pathology. He thought it was entirely feasible that the longstanding lung illness and associated chronic cough had been significant aggravating factors in respect of underlying and moderate thoracic spondylosis.

34        Mr Anderson saw Professor Pain, physician, on a medico-legal basis in May 2010. Professor Pain was uncertain as to the nature of his respiratory problem, although he noted that chronic exposure to cement, asbestos and coal dust during the course of employment would have put him at risk of developing obstructive airways disease. He thought he had definite abnormal clinical findings relating to poor ventilation of the right lung, although he considered the cause of this was obscure. In addition, he thought it was possible that he had an abnormality of the right hemi-diaphragm but the reason for this was not apparent. He thought it was a remote possibility that the respiratory intercostal muscles on the right side were weak or non- functioning as a result of damage to the intercostal nerves. He thought that Mr Anderson would remain predisposed to lower respiratory tract infections. His life expectancy was not necessarily reduced. From the history that he obtained, Professor Pain considered that, to the extent that he may have a degree of chronic bronchitis, the period of exposure to briquette dust (coal dust) and asbestos would have played a contributory role. He thought that this would be considered as a cause and not necessarily the cause. All exposures to dusts would have contributed.

35        In September 2011, shortly prior to the hearing date, Professor Pain again examined Mr Anderson. He concluded that the findings on examination were similar to those of May 2010. Mr Anderson had some process causing lung restriction more apparent on the right side. He thought that he may have bouts of acute bronchitis but did not think that he had chronic bronchitis, because the cough was non-productive on the two occasions on which he had examined him. He did not agree with opinions expressed by Dr Jonathan Burdon, which I shall come to later in these reasons. He thought the prognosis in terms of chest pain was hopeful, suggesting that it would resolve with time. The long-term prognosis of the lung condition depended on whether his past industrial exposure resulted in the development of a malignant complication.[8]

[8]             PCB 70

36        Mr Anderson was seen by Dr Burdon, consultant respiratory physician, in June 2010 and again in September 2011. He considered that lung function tests performed in May 2010 showed a severe restrictive defect with a marked reduction in diffusing capacity. However, he was unable to make a specific diagnosis, although it was clear that Mr Anderson suffered from a chronic bronchitic complaint as he coughed up sputum on a daily basis and had done so for many years. He noted his past exposure to inhaled dusts, including briquette dust. These dusts, he opined, when inhaled on a regular basis over a long period of time, would certainly account for Mr Anderson’s symptoms of chronic bronchitis. He concluded that his lung condition is more probably related to occupational exposure to dusts. He described him as having “severe lung disease”. He was currently short of breath, on even mild exertion. He was likely to have episodes of pneumonia in the future. He thought that there would be a reduction in life expectancy by at least ten years. His diagnosis was one of chronic bronchitis and a parenchymal lung injury as a consequence of his employment. He was of the opinion that Mr Anderson’s employment with the SEC between 1985 and 1989, “could have been a cause or would have contributed to his current condition and if not then it would have certainly aggravated his pre existing condition”.[9]

[9]             PCB 75

37        In September 2011, Dr Burdon’s views were unchanged. He thought that Mr Anderson would require the regular use of inhaled bronchodilators and steroids and would intermittently require oral antibiotics and steroids. He thought that he may require further admissions to hospital for respiratory tract infections.

38        The defendant arranged for Mr Anderson to be examined by Dr Antic, a respiratory and sleep physician; Professor Vernon Marshall, a general surgeon; and Associate Professor Peter Holmes, a consultant respiratory and sleep disorders physician (not to be confused with Associate Professor Mark Holmes, referred to previously).

39        Professor Marshall saw Mr Anderson in relation to chest pain in March 2009. At that point, he did not consider that Mr Anderson’s degenerative thoracic spondylosis was a major or principal contributing factor to continuing symptoms which he considered were predominantly of chest disease origin and outside his area of expertise. I note that Professor Marshall considered that Mr Anderson was “clearly permanently incapacitated by his persisting symptoms…”.[10] He did not consider that Mr Anderson’s chronic cough was likely on physical grounds to aggravate or cause or contribute to his condition of thoracic spondylosis with disc bulging at the T 5-6 level.[11]

[10]           DCB 20

[11]           DCB 21

40        Professor Peter Holmes saw Mr Anderson in June 2010. He appears to be confused or mistaken in relation to dates, having noted that Mr Anderson worked for Beaurepaires in 1977 and with the SEC prior to 1978.[12] Nevertheless, he did take a history of exposure to coal dust during his time with the SEC. He concluded that Mr Anderson’s employment at the SEC from 1986 to 1989 had aggravated his pre-existing chronic bronchitis due to exposure to significant amounts of coal dust during his time cleaning conveyor belts.[13]

[12]           DCB 24, 25

[13]           DCB 25

41        Professor Peter Holmes concluded that, over the years, Mr Anderson had developed a fall in lung function associated with chronic bronchitis which led to him being unable to be employed due to the development of increasing breathlessness. He thought that there was no way that Mr Anderson could now engage in his pre-injury employment or in suitable employment.[14] He summarised the condition as a “severe respiratory impairment”.[15] In a later supplementary report, Professor Holmes opined that he was unable to conclude which period of employment between 1978 and 1989 was directly involved in the initiation, acceleration or aggravation of his ongoing chronic bronchitis. In all occupations throughout that time, he noted exposure to non-specific dusts which theoretically could have contributed to his ongoing symptoms. He was unable to determine which employment period had the maximum impact on his chronic bronchitis.[16] However, in a further supplementary report of 18 August 2011, Professor Holmes concluded that a case could well be made for aggravation of pre-existing chronic bronchitis due to exposure to coal dust during the period of employment with the SEC.[17]

[14]           DCB 25

[15]           DCB 26

[16]           DCB 27

[17]           DCB 28

42        Dr Antic, in May 2007, had seen only one CT scan of December 2006. On the basis of that scan, he thought it unlikely that peripheral lung nodules noted therein resulted from dust exposure. He considered that it would be helpful in coming to any diagnosis to see histo-pathology reports.

43        He thought that it was a reasonable assumption that cough and phlegm in the absence of significant x-ray abnormality was from chronic bronchitis which could be from past pollution, including mineral dust, or from asthma or infection. He thought this was a non-specific descriptive diagnosis which per se did not infer respiratory impairment. He thought that the causal link to past dust exposure remained an assumption by exclusion of other causes rather than a firm diagnosis. He thought that the presence of blood in Mr Anderson’s sputum inferred a more complex and important abnormality. Such blood could be from the throat, nasal passages, the bronchial tree, the lung substance, or blood vessels of the lung. It could also be from a cardiac disorder. He presumed that the chest pain was the result of a different disorder perhaps arising from the thoracic spine. He appears to accept that Mr Anderson’s cough and phlegm could result from dust exposure, in which case he did not think the condition was likely to progress. He stated that the alleged exposure to dust substances may have caused chronic bronchitis and lymph gland calcification.[18]

[18]           DCB 7-9

44        Dr Antic saw Mr Anderson again in October 2007 and examined him. Again, he was unable to perform lung function studies and advised that, in order to make an assessment of respiratory state, it was important that he have access to the available past history and, in particular, the investigations that had been performed. He does not appear to have ever been provided with these.[19]

[19]           DCB 13

45        In each of his reports, Dr Antic made it clear that he did not have all the results of investigations and requested them from the solicitors who had engaged him to report in relation to Mr Anderson.[20] He makes no reference to having been provided with such material. In those circumstances, I consider I should place less weight on his opinion concerning Mr Anderson’s condition and its causative or contributing factors.

[20]           DCB 7, DCB 13

46        Dr Antic appears to have seen Mr Anderson again in April 2009,[21] but for reasons that are not clear, did not provide a report in relation to that examination.

[21]           DCB 14

47        Having read the tendered medical reports and Mr Anderson’s affidavits, and having observed him give oral evidence at the hearing of this matter, I am satisfied that he suffers from very severe and debilitating respiratory problems. He has a chronic cough. He regularly coughs up sputum with blood. He suffers breathlessness to the extent that, since 1995, he has been incapacitated for all employment for which he is reasonably qualified.

48        I accept that his respiratory condition deteriorated significantly between 1989, when he ceased work with the SEC, and 1995, when his condition prevented him from continuing in employment.

49        On balance, his lung disease is best described as chronic bronchitis. I am satisfied that the lung disease and its consequences are, for Mr. Anderson, more than significant or marked and are at least very considerable.

50        During his employment with the SEC, Mr Anderson was able to participate in indoor cricket, a relatively strenuous and energetic game. He was unable to continue this recreational activity after 1992.[22]

[22]           PCB 18

51        He is now restricted in his ability to walk distances of any length, in mowing the lawn, and in general home maintenance.

52        He is required to take narcotic medication in the form of MS Contin and also is regularly required to use a nebulizer to assist with his respiratory symptoms.

53        I accept that Mr Anderson’s exposure to coal dust whilst in employment at the SEC is a contributing factor to his lung disease. It is also clear that his earlier employment and exposure to dusts is also a contributing factor.

54 In the circumstances, I accept that the impairment to his lung function is a “serious injury” within the meaning of s.135A of the Act. I note that, unlike the analysis required in s.134AB of the Act, I am not required to make specific findings in relation to loss of earning capacity.

Multiple Causes

55        The medical evidence accepted by me is that, on balance of probabilities, his exposure to coal or briquette dust during the course of his employment with the SEC was a cause of the worsened lung disease and worsened symptoms which became evident after 1989 and by 1995.

56        The Act contemplates that a consequence of injury may have a multiplicity of causes.[23]

[23]           Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172 per Ashley JA at paragraph [64]

57        I do not regard the fact that there was no worsening of symptoms experienced by Mr Anderson during the actual period of employment with the SEC as being crucial. As Ashley JA said in Grech:

“But it does not follow that such consequences — that is, the entirety of the consequences — did not also result from, or at least were not materially contributed to, by injury sustained before 20 October 1999. That is so even though the consequences of injury — which, let it be assumed, met the definition of ‘serious injury’ — did not ensue until after 20 October 1999. Whether there was such a connection would be a question of fact, to be decided on the evidence.”

58        I am satisfied, on the balance of probabilities:

[24]           Humphries & Anor v Poljak [1992] 2 VR 129

(a)	that the consequences of Mr Anderson’s lung disease are severe and comfortably satisfy the “at least very considerable” test laid down in Humphries & Anor v Poljak;[24]
(b)	that Mr Anderson’s employment with the SEC between 1985 and 1989 was a cause of the lung disease and consequences suffered by him.

59        Counsel for the defendant submitted that, in effect, this was an aggravation claim. That is, he described it as a case where Mr Anderson had suffered from symptoms of lung injury well before he commenced his employment with the SEC. It was submitted that Mr Anderson was claiming that his employment with the SEC had aggravated that lung condition. Accordingly, counsel submitted that it was necessary to draw a comparison between Mr Anderson’s condition and symptoms prior to the commencement of his employment with the SEC and on completion of that employment.

60        I do not consider that this is an aggravation case such as that considered in cases such as Petkovski v Galletti.[25] Rather, here Mr Anderson claims that from a time in the mid 1990s he has suffered from a serious injury – one that presents him with significant pain and suffering consequences and has prevented him from working. I accept that there are a number of causes of those consequences, one of which is his exposure to coal or briquette dust during the course of his employment with the SEC between 1985 and 1989. In those circumstances, it is unnecessary to make a comparison of the before and after conditions as was appropriate in Petkovski and other similar cases.[26]

[25] [1994] 1 VR 436

[26]           For instance, De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249

When Did the Incapacity Arising from Injury Become Known?

61 Section 135AC of the Act provides:

“Despite anything to the contrary in the Limitation of Actions Act 1958, proceedings in accordance with section 135 or 135A must not be commenced —

(a)	subject to the Limitation of Actions Act 1958, unless paragraph (b) applies, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self- insurer before 1 September 2000; or
(b)	if the cause of action arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before the expiration of 3 years after the date the incapacity became known.”

62        Plainly, Mr Anderson’s cause of action against the SEC arose before 12 November 1997. He contends that the incapacity arising from the injury was not known until well after that date. Plainly by then, Mr Anderson was aware not only that he had an injury to his lung but also that the consequences of that injury were severe, in the sense that they were preventing him from working and engaging in various recreational activities.

63 Mr Anderson’s application for a determination under s.135A(2B) was made on 23 December 2008. The parties were in agreement that if the incapacity referred to in s.135AC(b) was known prior to 23 December 2005, Mr Anderson would be barred from commencing his claim against the SEC.

64        The parties, however, were not in agreement as to the meaning of the term “the incapacity” or as to the date upon which the incapacity had become “known”.

65        The defendant submitted that Mr Anderson had known of his incapacity at least by 1995 when he became unable to work.

66        Mr Anderson submitted that, although he was aware of his inability to work by 1995, he had no knowledge that that inability was in part attributable to his employment with the SEC. He submitted that the term “the incapacity” meant “the incapacity caused or contributed to by his employment with the SEC”.

67        The defendant contended that, even if Mr Anderson did not understand earlier that there was a connection between his symptoms and the relevant period of employment with the SEC, he would have known following receipt of the reports of Dr Marantos dated 28 September 2005 and 9 November 2005. In the first of those reports, Dr Marantos noted that Mr Anderson’s occupations from 1978 exposed him to asbestos and various other dusts.[27] He said:

“A diagnosis of chronic bronchitis was made based on the history of cough and sputum production. It was felt that occupational exposure was the primary cause of the chronic bronchitis as his cigarette smoking had been minimal … . “[28]

[27]           PCB 25

[28]           PCB 22

68        In his report dated 9 November 2005, Dr Marantos said:

“The pleural thickening or asbestos exposure has not contributed to his chronic bronchitis. The contributor factors have been the other occupational exposures as listed in his work history.”[29]

[29]           PCB 33

69        Counsel for the defendant submitted that these references effectively advised Mr Anderson as to the doctor’s medical opinion that his chronic bronchitis was linked to occupational exposure to various dusts.

70        The reference by Dr Marantos to Mr Anderson’s “work history” was explored in cross-examination. In the earlier of the reports referred to, Dr Marantos took a history that:

“His occupations from then on exposed him to asbestos in various other

dusts. I enclose a copy of his work history.”

71        There was no such document attached to the report as tendered. Nor was such document separately tendered in evidence. During cross-examination, a document was shown to Mr Anderson.[30] Mr Anderson did not recognise it and stated that he had not prepared it. Looking at it did not jog his memory. Nevertheless, he did give evidence about having told Dr Marantos about exposure to dust. He conceded that, early in the piece, he had given Dr Marantos a history of his work at the SEC and that he had told the doctor that his work involved exposure to coal dust. He said that he had talked with the doctor about all dusts from all of his jobs and that he had given him as much information as he could so as to assist in trying to ascertain what was causing his problems.[31]

[30]           T 22

[31]           T 29

72        Mr Anderson’s evidence was that he had not seen either of the two reports from Dr Marantos and that he had not read them. In 2005, and up until the present, his solicitors were Turner Freeman in Adelaide, where he was then residing. Both of the reports are addressed to that firm. Mr Anderson stated that he was not aware of the views that had been expressed by Dr Marantos to Turner Freeman at that time.[32] Turner Freeman had not sent copies to him. He was further asked:

“Q: So were you aware that as at September and November 2005, Turner Freeman had the benefit of Dr Marantos’s view that dust exposure was causing your chronic bronchitis?---

[32]           T 31

[33]           T 33

A:  No, I was not aware of that.”[33]

73        In his affidavit sworn 22 December 2008, Mr Anderson deposed that he had not been advised that exposure to coal dust was implicated in his present condition before he saw Professor Mark Holmes. He had first seen him in March of 2006 but it was not until a report from Professor Holmes dated 7 November 2008, that he was aware that it was Professor Holmes’ opinion that his condition was in part related to workplace dusts, including coal dust.[34] He confirmed this in his oral evidence.[35]

[34]           PCB 20

[35]           T 33-34

74        Mr Anderson’s evidence was that, as a consequence of his earlier exposure to asbestos, he and his treating doctors had been concentrating upon whether his lung symptoms might be related to exposure to that substance. Many tests were performed but no asbestos-related condition was confirmed.

75        In those circumstances, I accept that Mr Anderson would not necessarily have assumed that his condition was dust-related. I do not consider it is unusual or unlikely that his solicitors would not have forwarded medical reports to him. I accept that he had no understanding, belief or knowledge that his condition was related to exposure to various dusts or, in particular, coal dust, until late 2008.

76 Section 135AC of the Act has been judicially considered on a number of occasions. The Court of Appeal has laid down the following principles:

(a)	The burden of proving the matters as referred to in s.135AC(b) lies on the plaintiff;[36]
(b)	The knowledge referred to in the sub-section is “knowledge”, not suspicion or awareness of facts that might convey information to another, but subjective knowledge on the part of the worker.[37] Mr Anderson merely has to prove an absence of knowledge, not an absence of suspicion of facts from which persons of less fortitude might have drawn a more pessimistic conclusion;[38]
(c)	The judge has to decide the worker’s state of knowledge, as a circumstance subjective to the worker. That is a question of pure fact. The judge then has to decide whether the state of subjective knowledge reveals knowledge, not of “serious injury”, but rather knowledge of “incapacity arising from the injury”;[39]
(d)	It is for the judge to decide what the worker knew about the extent of and probable duration of his or her incapacity arising from the compensable injury at a particular time and always assuming that what the worker knew represented the truth of the situation, whether what the worker knew fitted the template of serious injury incapacity, that template involving elements of fact, degree and value judgment.[40]

[36]           Paget v JLT Workers’ Compensation Services Pty Ltd and Glenelg Shire Council [2005] VSCA 144

[37]           Paget at paragraph [29] (supra)

[38]           Paget at paragraph [34]

[39]           Edwards v McSaveney & Anor [2005] VSCA 252

[40]           Papercorp Pty Ltd v Nicolaou; Howden v Ansett Australia [2006] VSCA 143 at paragraph [50]

77        The cases referred to in the footnotes relating to the previous paragraph were factually quite different to the case under consideration. In those cases, the Court was considering a situation where a worker had suffered a discrete injury during the course of employment but where the consequences of that injury became more significant at a later time. In discussing the concept of knowledge in Papercorp, Ashley J A stated:

“The question remains: knowledge of what thing? Paget in part provides a conceptual answer. It underlines the fact that knowledge and suspicion differ, and that circumstances which may yield knowledge in person A will not necessarily do so in the case of person B. But beyond that, the answer to the question is provided by the meaning which I have attributed to the words ‘the incapacity arising from the injury’.”

78        In this case, additional questions arise – which incapacity and from which injury? Here, there is no doubt that Mr Anderson had knowledge of an incapacity from a lung problem. He had been unable to work since 1995. The incapacity not only related to his ability to earn an income but also extended to significant pain and suffering consequences.

79        I consider that Mr Anderson is required to satisfy the Court that he did not have knowledge before the relevant date of the incapacity arising from the injury. That is, he is required to satisfy the Court that he did not have knowledge of incapacity from injury arising out of his employment with the SEC. In other words, that he did not have knowledge that his exposure to dust during the course of his employment with the SEC was a cause of his lung incapacity.

80        A like situation was raised by a full bench of the Court of Appeal in Morris & Joan Rawlings Builders and Contractors v Rawlings.[41] There, counsel for the employer had argued that if Parliament had intended time not to run until it was known that the incapacity arose from the serious injury, the exception would have been drafted differently. The Court rejected that argument.

“The improbability of that having been Parliament’s intention is demonstrated by what would be the inequity of its consequences. Consider a case of physical injury suffered in the course of employment the result of insidious factors such as heavy metal contamination, iso- cyanate absorption or electro-magnetic radiation. In such a case, the worker might well be aware of symptoms and incapacity years before any connection to the workplace was objectively discernable, even by medical specialists; and examples can be multiplied. Parliament cannot have intended that time would run against such a worker until the connection to the work place was capable of ascertainment. The better view surely is that the expression ‘the incapacity’ where secondly appearing in s.135AC(b) refers back to and means the same thing as ‘the incapacity arising from the injury’.”

[41] [2010] VSCA 306 at paragraph [45]

81        I interpret the Court as referring to the injury the subject of the application or the injury connected to the defendant’s work place.

82        Accordingly, I consider that the question to be answered in this case is whether, prior to 23 December 2005, Mr Anderson had knowledge of incapacity arising from injury of which his employment with the SEC was a cause.

83        I consider that he has established that he did not have such knowledge. I accept his evidence that until late 2008, he did not have knowledge that there was medical opinion supporting a connection between his symptoms of lung complaint and his exposure to dust in the course of his employment with the SEC. A suspicion that there may have been a connection would not be enough. Actual subjective knowledge is required. I am satisfied that he had no such knowledge.

84 Counsel for the defendant submitted that the knowledge of his solicitors, Turner Freeman, was, as a matter of law, the knowledge of Mr Anderson. I do not accept that submission. I consider that the word “known”, where occurring in s.135AC(b) of the Act, is a reference to the personal knowledge of the worker in question.

85 Accordingly, I am satisfied that the application by Mr Anderson for a determination under s.135A(2B) of the Act was made to the Authority before the expiration of three years after the date his incapacity became known. It follows that there is no bar on the issue of a proceeding by reason of s.135AC of the Act.

Conclusion

86 Accordingly, I am satisfied that Mr Anderson has suffered a “serious injury” as defined in s.135A(19) of the Act. I am satisfied that he has established that the consequences of his lung injury are more than significant or marked and at least very considerable. I am further satisfied that the consequences of that injury have prevented him from working since about 1995. I am further satisfied that those consequences are permanent, in the sense that they are likely to continue for the foreseeable future.

87        There will be leave to Mr Anderson to commence proceedings to recover damages in respect of injuries arising out of, or in the course of, or due to the nature of his employment with the defendant between 1985 and 1989.

88        I shall hear the parties in relation to costs.

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