Archer v Victorian WorkCover Authority
[2024] VCC 525
•30 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-02373
| ROSS ARCHER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 April 2024 | |
DATE OF JUDGMENT: | 30 April 2024 | |
CASE MAY BE CITED AS: | Archer v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 525 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – respiratory condition – permanent incapacity for all work
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335; Accident Compensation Act 1985, s135A; Limitation of Actions Act 1958
Cases Cited:ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31, Pattison v HWT [2013] VSCA 121
Judgment: Application approved
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Dimsey with Mr L Perilli | Gordon Legal |
| For the Defendant | Mr R Kumar | Wisewould Mahony |
HIS HONOUR:
1Ross Archer worked as an aircraft machinist from 1978 until his ultimate employer, Boeing, terminated his employment on 14 April 2023. That is a period of forty-five years. Boeing terminated his employment because it was said he could not perform the inherent requirements of his job as he had developed a respiratory condition. Mr Archer’s case is that that respiratory condition was caused by his exposure to various dusts, chemicals and fumes during the course of his work. He alleges that the respiratory condition is ongoing and justifies a determination that he has suffered a serious injury. Mr Archer submits that his serious injury can be determined simply as he claims he has a permanent incapacity for all work. The Victorian WorkCover Authority’s (“VWA”) position is that Mr Archer’s respiratory condition related to work has resolved and what he has now is a cough unrelated to his employment.[1] They suggest that it is this cough which impacts upon his working capacity. Overall, the VWA submits that Mr Archer has the capacity to return to work and, further, that the impairment consequences flowing from the respiratory condition related to his employment do not rise to the level to be considered “more than significant or marked”.
[1]T7 L5
2An issue arose between the parties given the length of time Mr Archer worked at various employers during which he was exposed to dusts, fumes and mists culminating in his employment with Boeing. This exposure spans both the operative period for s135A of the Accident Compensation Act 1985 (“the ACA”) and, pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA”). These periods are set out in the Originating Motion as being for personal injuries arising out of and/or in the course of and/or throughout the course of employment at or near Port Melbourne with:
a)Hawker De Havilland Victoria Pty Ltd between 1 September 1985 and 12 November 1997 in accordance with Section s135A of the ACA; and/or
b)Hawker De Havilland Victoria Pty and/or Boeing Aerostructures Australia Pty Lt between 20 October 1999 and 1 July 2014 in accordance with s134AB(4) of the ACA; and/or
c)Boeings Aerostructures Australia Pty Ltd between 1 July 2014 and about November 2021 in accordance with s328 of the WIRCA.
3The dispute arose in relation to the first claimed period from September 1985 to November 1997 pursuant to s135A of the ACA. In respect of this period the VWA contended that Mr Archer could not demonstrate that he had sustained a compensable injury of any sort.[2] Further the VWA contended that for injuries that have arisen before 12 November 1997, Mr Archer must have brought his claim within three years of becoming aware of the injury. That date, according to the VWA began to run from about August 2019, when Mr Archer first made a claim in respect of his respiratory impairment. The three years, then, expired in August 2022 and as Mr Archer only issued proceedings on 16 May 2023, he was out of time. On that basis, the VWA submitted Mr Archer was out of time in respect of the first serious injury application. Mr Archer contended that time only began to run from the date he knew of his diagnosis and that it incapacitated him– being December 2021. On this basis, time expired in December 2023 and as such he had issued within time.
[2]T8 L16
4The latter two components of the claim arising in the period after November 1999 can be considered together by virtue of s5 of the WIRCA transitional provisions. The parties agreed on this point.[3] Further the VWA accepted that there had been compensable injury arising in the period from 2003 during employment with Boeing and that such injury was hypersensitivity pneumonitis.[4] However, as set out above, it submitted that this condition had largely resolved and Mr Archer had developed a non-work related condition – being laryngeal irritability (or cough).
[3]T6 L25
[4]T7 L13
5For the reasons which follow, I have found that Mr Archer contracted hypersensitivity pneumonitis and laryngeal irritability during the course of his employment with Hawker De Havilland and Boeing. I find that both conditions remain extant today and have resulted in him having no current work capacity, which is likely to persist for the foreseeable future. On this basis, I consider that Mr Archer is entitled to determinations in respect of serious injury for both loss of earnings and pain and suffering consequences.
Relevant chronology
6Mr Archer was born in September 1960 in Sunbury. He attended Niddrie Technical School until year 11. He began employment on 19 January 1978. His employer at that time was the Commonwealth Aircraft Corporation based in Lorimer Street, South Melbourne. Though the title of his employer would change over time, he remained employed in that same position until he was terminated in 2021.
7It is useful at this stage to set out some of the occupational history in greater detail, as it provides context to the exposure that Mr Archer submits has led to his respiratory injury. This is most easily set out by reciting from his treating respiratory physician’s report:
“Regarding Mr Archer's occupational history, he noted commencing an apprenticeship as a fitter and turner at age 17 after leaving school. This was over a period of 4 years. He commenced tool making at age 20. This was initially with the Commonwealth Aircraft Corporation. Several other companies have bought this firm and its most recent form has been Boeing. His work initially involved tool making included cutting metals including titanium steel and magnesium with a saw. This was dry cutting without extraction ventilation or a dust mask.
He noted in 1979 for about 6 months that he worked in the casting area of the factory. This involved packing sand moulds for casting. He noted dust exposure during this work. He did not have a dust mask. In 1980 he returned to the foundry area for approximately 8 months again making moulds with sand. Again he noted significant dust exposure during this period.
Between 1981 and 1987 he worked in the machine shop. He was more involved in tool making. He worked in the grinding section where there were 12 workers. His predominant role was in tool sharpening. This was precision grinding. His work was mostly performed dry. There was limited extraction ventilation and no mask provided. He noted that tungsten carbide was the major metal used. He used a grinding wheel that was either diamond bonded or aluminium oxide.
Between 1987 and 1982 he worked in the final grinding section in the machine shop. This was mostly surface grinding of parts for gauges. This was a combination of both wet and dry grinding. He noted that coolant that was a metal working fluid was used over the grinding wheel. This generated significant mist in the work area. He worked about 18 inches from the grinding surface. There was no respiratory protection in this environment.
Between 1992-1997 he worked in general machining. This was working with milling machines. Again it was wet and dry grinding. He noted exposure to resins in this environment. A fume mask was work occasionally when epoxy resins were used.
Between 1997-2001 he again worked in general machining but was working with different grades of steel in this role.
In 2001 the company moved to a new site in Port Melbourne. Since that time he has worked primarily with composite materials, mostly carbon fibre. He notes this is a product of carbon and resin. Until 4 years ago he was working with carbon fibre very frequently. He noted dust throughout the factory generated from work with carbon fibre. He was occasionally involved in dry drilling and sanding of the material. More frequently he was involved in wet grinding of the composite material. Differing wheels were used as part of this process. This included a silicone green wheel, aluminium wheels and a diamond-bonded wheel. The choice of wheel depended on the job.
Over the last 4 years he has still been involved in grinding work. This has mostly been fabricating and general machining. About 20% of his time has been working with tungsten carbide. There has been education regarding use of personal protective equipment at the current Boeing site. He has been provided a cartridge P2 respirator. He notes there is minimal local exhaust ventilation present. He has been most concerned regarding the resin in the carbon fibre material.”[5]
[5]Report of Dr Ryan Hoy, affirmed 12 December 2019, at Plaintiff’s Court Book (“PCB”) 42-43
8Mr Archer is married and has two grown children.
9Mr Archer deposed, in his first affidavit, to developing a cough around 2010.[6] He worked on despite this cough.
[6]Affidavit of the plaintiff, dated 5 December 2022, paragraph [12] at PCB 13
10In about 2016, he developed coeliac disease and went on a gluten-free diet. He gave evidence that the coeliac disease temporarily worsened his cough, but after commencing a gluten-free diet, his cough reverted to its normal state.[7] Mr Archer kept on working until April 2019, when he presented to Dr Jane Christiansen, his treating doctor, with a worsening cough.[8]
[7]T15 L13
[8]Various consultations with his doctor occurred in 2017 in relation to cough. I infer a worsening from the fact of the referral for HRCT and to a lung specialist.
11After that consultation, Dr Christiansen referred Mr Archer to Dr Melvin Lim, respiratory physician. He took a history of chronic cough on a history of grinding work at his job. He formed a preliminary view that Mr Archer potentially had sarcoidosis or silicosis. Further investigations were conducted by way of bronchoscopy,[9] however, there was no firm diagnosis. PET scans were arranged in the latter part of 2019. At this time, Mr Archer made a WorkCover claim on the basis that he had suffered from silicosis and lesions of the lungs contracted by his work. That claim was rejected.
[9]PCB 13 at paragraph [12]
12At around this time, the employer arranged for Mr Archer to be seen by Dr Ryan Hoy, a respiratory physician. Dr Hoy diagnosed a hypersensitivity pneumonitis. He considered that Mr Archer, at that stage, had normal lung function and was able to return to work. On that basis, Mr Archer did return to work. However, it is important to note that he was not given a copy of Mr Hoy’s report as to his diagnosis. He endeavoured to obtain a copy of that report and ultimately it was given to him in November 2020. As set out above, it contained the diagnosis of hypersensitivity pneumonitis.[10] On that basis, Mr Archer lodged a second Workcover claim, in which he set out his condition as hypersensitivity pneumonitis. He continued on working during this period of time. Ultimately, his claim was accepted. He remained working until November 2021, when he ceased work and went onto WorkCover payments. He reported having some modest improvement of his respiratory condition after ceasing work in the order of about 10 per cent. His treating doctor referred him to see Dr Hoy as a treating specialist. In December 2021, Dr Hoy wrote to Dr Christiansen opining:
“Certainly [Mr Archer’s] chronic cough has been problematic. It is likely associated with his occupational dust exposure. … .”[11]
[10]PCB 14 at paragraph [14]
[11]PCB 46
13He recommended treatment of the cough with Gabapentin and referral to a speech therapist. Mr Archer also continued under the care of Dr Lim, who recorded, in 2022, that his cough had improved somewhat since ceasing work.[12] Mr Archer experienced emotional upset as a result of his employer’s handling of his Workcover claim, and began consulting a psychologist.
[12]PCB 37
14In January 2023, Boeing arranged for Mr Archer to be examined by a respiratory physician, Dr Piers Canty, to determine if Mr Archer could return to work.
15Dr Canty reported on 13 February 2023 and opined:
“… I feel there is a clear plane of separation between his now resolved pulmonary infiltrate and his chronic cough, which is likely attributable to (work-associated) laryngeal irritability.”[13]
[13]DCB 10
16Dr Canty’s opinion was that Mr Archer ought not return to his previous employment and that his cough alone would preclude a meaningful return to work. It appears that Boeing terminated Mr Archer’s employment on the basis that he could not perform the inherent requirements of his position.
17Proceedings in this matter were issued on 16 May 2023.
18After being terminated from his employment, Mr Archer has been on WorkCover payments and has been referred to numerous rehabilitation providers, namely Kinnect and Nabenet. Mr Archer continues taking Gabapentin and having regular reviews with his treating doctor and treating specialists.
What injury does Mr Archer have?
19The VWA accepted that, in the period beginning in 2003 until the termination of his employment, Mr Archer contracted work-related hypersensitivity pneumonitis. However, the VWA submits that Mr Archer has a separate condition known as laryngeal irritability, which is not work related. Mr Archer’s counsel, Mr Dimsey, who appeared with Mr Pirelli, submitted that this was no more than “sophistry” as being a distinction without a difference. Mr Dimsey submitted that, most likely, the laryngeal irritability was a symptom of the hypersensitivity pneumonitis which had been diagnosed and accepted. He further submitted that, even if this were not the case, the evidence supported the fact that the laryngeal irritability, or cough, was work induced. I would accept both submissions. Associate Professor Rubinfield, Dr Burdon and Dr Hoy clearly view the cough as a symptom of the hypersensitivity pneumonitis.[14] Dr Lim gave no firm statement, but certainly seems to consider the cough as part of the respiratory condition overall.[15] Other practitioners who have opined consider that there are two separate conditions which arose from work, but are clear that both conditions are work related. This is best expressed by Dr Canty:
“In summary, Mr Archer is a 63-year-old gentleman with a diagnosis of probable hypersensitivity pneumonitis on the basis of an upper zone predominant micronodular pulmonary infiltrate in CT imaging, which has subsequently resolved. He has a persistent cough suggestive of laryngeal irritability/hypersensitivity and remains on gabapentin therapy. Both of these conditions have been attributed to his occupational dust exposure whilst working for BAA.”[16]
[14]Associate Professor Abraham Rubinfeld at DCB 116 and DCB 123-5; Dr Jonathan Burdon at PCB 62-67: “Immaterial of the specific diagnosis, I am of the opinion that Mr Archer’s respiratory condition is occupationally induced and has been caused by his exposures to the various dusts, fumes and mists during the course of his employment as laid out in the body of my report above”; Dr Hoy, PCB 46.
[15]PCB 37
[16]DCB 33
20To the extent that Dr Canty considers the hypersensitivity pneumonitis to have resolved, I would reject that opinion. It is an isolated opinion not held by the other practitioners who opined in this case.[17] The vast weight of opinion favours ongoing hypersensitivity pneumonitis with laryngeal irritability as a separate condition, or as a symptom of the overall respiratory impairment. On balance I accept Dr Hoy, as the treating practitioner, as best expressing the injury as being hypersensitivity pneumonitis with laryngeal irritability as a symptom. Having made that finding as to injury, I consider that the body function impaired is that of an impairment of the respiratory system.
[17]Associate Professor Rubinfeld at DCB 125, who notes the chest CT scan is not normal; Dr Lim at PCB 39, who notes that the lung nodules are improving, but not resolved as at 4 August 2023; the reporting of Dr Burdon dated 17 March 2024, who notes ongoing hypersensitivity pneumonitis and shortness of breath at PCB 71 and Dr Hoy at PCB 49.
21The VWA submitted that Mr Archer’s failure to produce any evidence from an ENT specialist, who Mr Archer had consulted, ought result in a finding that such evidence would not have assisted Mr Archer’s case.[18] In addition, the VWA submitted that Mr Archer’s treatment by an ENT specialist may assist in his recovery. I would accept the VWA’s submission in both respects.
[18]T39
Impairment Consequences
22Turning to consider the impairment consequences, attention primarily focused on whether or not the injury renders Mr Archer totally incapacitated for work for the foreseeable future. I note immediately no issues of credit or reliability in Mr Archer’s evidence arose. Mr Archer presented, on my assessment, as a clear, honest, hardworking man. He has an outstanding work history of dedication and loyalty to his employers. It is also noteworthy that, despite the onset of his condition in 2019, he worked on after the rejection of his claim, as his wife was having health issues and he had no choice. He answered questions directly and I consider honestly. I observed him in the Court and brought my observations of his court presentation to the attention of parties. I noticed that, while sitting in the body of the Court, he had bouts of coughing every few moments. Sometimes those bouts of coughing bent him over. He was then short of breath. In the witness box, the same thing occurred numerous times. During those bouts of coughing, he could not be asked questions and could not answer. Giving evidence was obviously difficult for him, given that he had to talk. However, I formed an overall impression that he was doing the best he could and answered truthfully. I set those matters out, as they inform my assessment of his work capacity. There was nothing to suggest that his presentation in court was anything other than normal for him, save for the fact he was required to, at times, engage in answering questions. Such could be said to promote additional coughing to what he normally experiences.
23After an assessment of the evidence, I find that Mr Archer has no current work capacity, which is likely to continue for the foreseeable future. I come to this finding on the following basis. First, it is accepted by all practitioners, and by the VWA, that Mr Archer cannot return to his old employment. Furthermore, it is accepted that he cannot return to any similar environment where there is dust, fumes and chemical exposure. It is also accepted that he needs ongoing Gabapentin medication. He has attempted to wean himself of it, however, he cannot. This is important because the Gabapentin makes him tired and drowsy. As such, it is clearly accepted that he cannot work with machinery and ought not drive long distances.
24He is a man who has worked for one company in one role for 45 years. He has limited transferable skills beyond that of a fitter and turner. To that extent, it is necessary to consider what retraining or rehabilitation he might undertake. Mr Archer’s evidence is that he has complied with all requests to participate in rehabilitation and retraining with both Kinnect and Nabenet. I consider that Mr Archer has made reasonable attempts to engage with rehabilitation and retraining services as required. However, this is particularly so given that, when asked by counsel if a job for which he was suitable could be identified would he be willing to try, he responded that he would.[19] He is clearly motivated to work – which is consistent with his long and successful work history.
[19]Transcript (“T”) Transcript (“T”) 25, Lines (“L”) 14
25The VWA put that Mr Archer was, in line with the Kinnect report, able to do a number of positions, being warehouse supervisor, dispatch clerk, cashier and quality assurance worker. Mr Archer’s position was that none of those jobs were suitable for him. I now turn to an examination of those positions.[20]
(a) dispatching and receiving clerk.[21]
The job requirements seem to conflict with Mr Archer’s capacities. For example, it appears that frequent computer work is required to complete clerical tasks. While Mr Archer has basic computer skills which he employed at work, it is unclear that he has the requisite computer skills. Furthermore, the job involves forklift or fork-hoist operation, which is not suitable, given his use of Gabapentin. This role is unsuitable.
(b) warehouse supervisor (supply and distribution manager)[22]
The relevant functional requirements require management experience and skill. Mr Archer has none of these skills developed over any period of time. In addition, his constant coughing is incompatible with the requirements of having to constantly talk to people to negotiate with them. This role is unsuitable.
(c) quality assurance controller[23]
Functional skills are described as:
“Mental skills necessary include a high level of cognitive functioning with communication, interpersonal, administration, research, analytical, planning, organisation, problem solving, critical thinking and decision-making capabilities.”[24]
[20]Mr Archer’s response to each of those jobs are at T27, L31
[21]DCB 48
[22]DCB 50
[23]DCB 51
[24]DCB 52
Mr Archer does not possess the requisite skills in this area, nor is there any indication that he can obtain same via retraining. I consider this role to be unsuitable. In addition, his inability to talk for a lengthy period of time makes this role unsuitable;
(d) check out operator[25]
This role is unsuitable for Mr Archer, given he is constantly coughing. He cannot converse with customers in a normal way. In addition, the Gabapentin makes him drowsy, such that he could not be on station for the required period of time.
(e) administration assistant[26]
The functional requirements of this role are office-based, require computer skills and constant communication. This role is unsuitable for Mr Archer for the reasons I have set out above immediately.
[25]DCB 52
[26]DCB 54
26In respect of those findings, I would also rely on the opinions of Dr Joseph Slesenger and Ms Katrine Green. Particularly, the opinion of Dr Slesenger, I prefer to that of Associate Professor Rubinfeld, who has opined as to a variety of roles Mr Archer may be suitable for. I prefer Dr Slesenger’s opinion on the basis that he is an occupational physician as opposed to a respiratory physician, as is Associate Professor Rubinfeld’s specialty.
27As I have found that Mr Archer has no current work capacity and that is likely to continue for the foreseeable future, I will grant him a determination in respect of serious injury. Necessarily, it follows that he is entitled to a pain and suffering certificate. If it were necessary, I would have separately granted a pain and suffering certificate for the following brief reasons.
28Mr Archer worked for one company for 45 years. He worked in a position which he had trained for as a fitter and turner. He enjoyed his work. To have that work taken away from him is a significant effect on his occupational life. It narrows the range of occupations for which he is suitable very considerably and particularly because of his current age. These are very significant matters. Further, his ability to work with his hands in an environment where he is machining, even for pleasure, is significantly compromised.
29Further, the respiratory impairment has resulted in a significant cough. It is properly described by Dr Canty as a “paroxysm”. I had the opportunity to witness the effect of this cough. I consider it to be a very significant disruption to a person’s ability to function normally or even to engage in social interaction normally. I accept that a cough of this nature makes it difficult to socialise. The cough also interrupts his sleep and I accept that this is a daily occurrence and in part results in ongoing tiredness during the day.[27] While Mr Archer can walk and pursue social activities, such as hiking and going fishing, he needs ongoing medication and review by his treating specialists. While he may obtain some relief by going to see a speech pathologist, at this stage it is unclear if that will have any ameliorative effect. He has now had this condition for close on four years. There is no indication from his doctors that it will abate to any significant level. I consider this condition to be permanent at this stage. For these brief reasons, I would have granted Mr Archer a determination that he suffers a serious injury in respect of pain and suffering consequences.
[27]PCB 19
Limitations of actions point
30Argument arose as to the application of s135A of the ACA. This section was said to be enlivened because Mr Archer claims he had suffered a serious injury in the period from 31 August 1985 to 12 November 1997. As a result, he needed to demonstrate a serious injury in accordance with s135A(19) of the Act. However, he was only able to proceed with such an application if he met the terms of s135AC. That section relevantly reads:
“Sect 135AC Limitation of Actions Act 1958
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.”
31Here, the VWA contended that the relevant date Mr Archer ought to have known of his serious injury incapacity was 8 December 2019. As a result, he had until 8 December 2022 within which to bring his serious injury application.[28] However, in this case, the Originating Motion was filed on 17 May 2023. The VWA therefore submitted Mr Archer was statute barred from bringing his serious injury application pursuant to s135A. Both parties agreed that the Court of Appeal set out the relevant principles to be applied in such an application in the matter of ACN 005 565 926 Pty Ltd v Snibson.[29] Relevantly, the court said:
“For the purposes of s 135AC(b), it is sufficient to bar a worker’s claim if, prior to the relevant date, he or she knew of facts that, viewed objectively, constituted the serious injury incapacity. The fact that the worker does not subjectively appreciate that the injury is serious until after the relevant date is not necessarily determinative.”
…
“Section 135AB(b) of the Act involves a two-step process. First, the trial judge must identify what the worker in fact knew in relation to his or her injury at the relevant time. Secondly, the judge must determine whether, in the judge’s opinion – and this is a matter of fact and degree and value judgment for the judge – those known facts constitute knowledge of serious injury capacity.”[30]
(Footnotes omitted.)
[28]The date the application was actually made is not contained within the materials.
[29][2012] VSCA 31 at paragraph [72]
[30](Ibid) at paragraph [73]-[74]
32I find that while Mr Archer knew as at the time he first made his WorkCover claim in August 2019 that he had a potential respiratory impairment, its diagnosis was completely uncertain. Certainly Dr Lim did not communicate to Mr Archer with any certainty what his condition was. In addition, he was working full time and there was no indication from his treating doctor or his specialist that he ought to cease work. As such, he continued working on normally. His claim was further rejected. There are some injuries or diseases that require expert diagnosis before it could be known that compensable injury has been suffered.[31] Objectively, then, Mr Archer knew by the end of 2019 that he potentially had a lung condition, but that it was not work related. Furthermore, he was not told by his medical practitioners that he ought to cease work in any way. As can be appreciated from the ratio decidendi of the Court of Appeal, focus is on what Mr Archer knew in relation to his “serious injury incapacity” at the relevant time. Viewed objectively, I cannot find that Mr Archer knew by December 2019 that his condition constituted serious injury incapacity. I note the use by the Court of Appeal of the words “serious injury incapacity” (my emphasis). Here, Mr Archer was working at full capacity as at December 2019. I do not find that as of December 2019 the facts known at that time constituted knowledge of serious injury incapacity. Rather, I consider that moment only arose after Mr Archer received, firstly, and at the earliest, Dr Hoy’s opinion of hypersensitivity pneumonitis when he received Dr Hoy’s report in November 2020. At that time he knew it was linked to his employment, hence he made the second claim in December 2020. Objectively, at that stage, he knew that he had a respiratory impairment, being the hypersensitivity pneumonitis and the worsening cough that was related to work. His evidence was that the cough, in particular, would disrupt his work by causing him to leave meetings and the like. It is at this point I find Mr Archer knew he had a serious injury incapacity. I consider that his time began to run from the date of the second claim, being 16 December 2020. Therefore, he had until 16 December 2023 to issue his serious injury application. Quite clearly, he made such application within time, as his Originating Motion was filed in this proceeding on 17 May 2023. For these reasons, I would reject the VWA’s contention and find that Mr Archer made his s135A application in time. For the reasons set out earlier, I find that application to be successful on the basis that, as a result of Mr Archer’s employment, he has sustained hypersensitivity pneumonitis with a laryngeal cough. Such injury has led to impairment of his respiratory system. The impairment consequences flowing from the impairment of that body function are serious, both in the loss of earnings and pain and suffering sense, for the reasons set out above.
[31]Pattison v HWT [2013] VSCA 121, [37]
33Given my findings set out above, I will grant Mr Archer’s application in respect of each of the serious injury applications.
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