Atmis v Consolidated Property Services (Australia) Pty Ltd
[2022] VCC 2056
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-16-01962
| SERDAR ATMIS | Plaintiff |
| v | |
| CONSOLIDATED PROPERTY SERVICES (AUSTRALIA) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20, 21, 25, 26 and 27 October 2021 | |
DATE OF JUDGMENT: | 30 November 2022 | |
CASE MAY BE CITED AS: | Atmis v Consolidated Property Services (Australia) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2056 | |
REASONS FOR JUDGMENT
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Subject:NEGLIGENCE – INDUSTRIAL ACCIDENT
Catchwords: Back injury – Right shoulder injury - Negligence – Whether statutory duty pursuant to Manual Handling Regulations – Breach of statutory duty – Contributory negligence – General damages – Whether pecuniary loss – no pecuniary loss
Cases Cited:Acir v Frosster Pty Ltd [2009] VSC 454; Czatyrko v Edith Cowan University (2005) 214 ALR 349; Duma v Mader International Pty [2013] VSCA 23; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Sahin v Victorian WorkCover Authority [2017] VSCA 13; SMYBB Pty Ltd v Young [2022] VSCA 115
Judgment: For the Plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards KC with Mr P Haddad | Carbone Lawyers |
| For the Defendant | Ms M Britbart KC with Mr P Johnstone | Russell Kennedy |
HIS HONOUR:
The plaintiff’s claims
1The plaintiff sues the defendant for damages in negligence for personal injuries he sustained to his spine by way of an injury to his low back and subsequently to his right shoulder. As to his back, the plaintiff alleges that this injury was caused by the defendant’s requirement that he perform physically demanding duties in the course of his employment between 2000 and prior to, but including on 1 July 2006, when on that date he experienced an acute onset of pain. As to his right shoulder, although the performance of the work duties over the course of his employment were also implicated by way of his pleading, the case was conducted on the basis of an injury caused by a specific incident on 17 June 2008, when he attempted to lift a heavy bin liner from a concrete rubbish bin, this task being one of his many duties. The plaintiff separately pleaded that the injuries relied on were caused by a breach of regulations governing hazardous manual handling duties. The plaintiff also alleges that his work injuries has resulted in a diagnosed mental injury.
2The plaintiff was represented by Mr Richards KC together with Mr Haddad of counsel. The defendant was represented by Ms Britbart KC together with Mr Johnstone of counsel.
The injuries
3The incidents of injury relied on and that were developed in the carriage of the proceeding were encapsulated by the plaintiff as follows:
…his spine caused by the performance of his work duties over the said period of employment and in particular on or before Saturday, 1 July 2006 the Plaintiff suffered the onset of persistent lower, middle, and upper back pain;
…Injury to his right shoulder caused by an incident on Tuesday, 17 June 2008 at around 4:45 pm when the Plaintiff suffered the onset of right shoulder pain whilst lifting a heavy 240-litre bin liner (containing rubbish weighing approximately 20 kilograms); and
…psychiatric injury consequential to his physical injuries.[1]
[1] Plaintiff’s closing written submissions [1].
4This exposition of injuries and their cause differed from the final iteration of the plaintiff’s Statement of Claim which was expressed thus:
5. In the course of his employment with the First Defendant from June 2000 until 17 June 2008, the Plaintiff was required to perform repeated and heavy manual tasks (“the work duties”).
PARTICULARS OF WORK DUTIES WITH THE FIRST DEFENDANT
The work duties required the Plaintiff to sweep floors, sweep and mop toilets, dust surfaces and empty rubbish bins, clean overhead air-conditioning ducts, operate machines used to clean tiled areas and carpeted floors, and to perform manual handling and lifting of heavy items including rubbish bin bags of various weights on a repetitive basis, bending, twisting and lifting movements which placed considerable strain on the Plaintiff’s spine, and hazardous manual handling as defined by the Occupational Health & Safety Regulations 2007 (the 2007 Regulations).
6. As a result of the work duties with the
FirstDefendantand the failure of the Second Defendant to maintain, secure and inspect its premises and/or monitor the actions of its servants, agents and/or those engaged to perform work or those otherwise invited on the premises, the Plaintiff suffered injury, loss and damage when lifting a heavy bin liner on 17 June 2008 (“the incident”).PARTICULARS OF INJURY
Injury to the right shoulder including a tear of the supraspinatus tendon;
Adhesive capsulitis;
Development of early arthritic changes in right shoulder;
Injury to the spine, including but not limited to the lumbar spine;
Anxiety and depression;
Pain and suffering.
(“The Injuries”)
PARTICULARS OF SPECIAL DAMAGE
Hospital, medical and like expenses have been incurred and paid pursuant to the provisions of the Accident Compensation Act 1985.
PARTICULARS OF LOSS OF EARNINGS AND LOSS OF EARNING CAPACITY
(a) The Plaintiff was born on 8 May 1972.
(b) Prior to the injuries the Plaintiff was employed as a cleaner by the First Defendant earning approximately $480.00 net per week.
(c) By reason of the injuries, the Plaintiff has been incapacitated for his pre-injury employment since July 2010 and has an unsaleable residual capacity for work. The Plaintiff claims loss of earning capacity to 67, further particulars of which will be provided prior to trial.
7. The Plaintiff’s injuries referred to in paragraph 6 hereof were caused by reason of the negligence of the
FirstDefendantand the Second Defendant,theirits servants, agents or representatives, respectively and/or concurrently.PARTICULARS OF NEGLIGENCE OF THE FIRST DEFENDANT
(a) Failing to provide and maintain a safe system of work;
(b) Failing to provide and maintain a safe place of work;
(c) Failing to provide and maintain safe plant and equipment for the performance of the work;
(d) Failing to provide adequate rest breaks for the safe performance of the work;
(e) Requiring the Plaintiff to work in a situation of danger;
(f) Failing to undertake a risk assessment as to the system of work implemented and the risk of injury posed by the system of work;
(g) Requiring the Plaintiff to perform heavy and awkward lifting tasks including removing and handling bin liners;
(h) Requiring the Plaintiff to perform awkward tasks overhead including cleaning air-conditioning ducts.
(i) Requiring the Plaintiff to adopt postures that were ergonomically inappropriate for sustained periods of time;
(j) Failing to comply with the provisions of the Occupational Health and Safety Act 1985 (Vic).
(k) Failing to heed the advice of the Plaintiff;
(l) Failing to inform the
Second Defendantowner and/or occupier of the premises of complaints concerning the state of the premises and/or the proper use of plant and/or equipment and/or failing to follow up and ensure that known risks of injuries were eliminated;(m) Failing to devise a safe system of work and/or adequate process in respect of the complaints;
(n) Failing to action and/or respond adequately to the Plaintiff’s complaints;
(o) Failing to adequately train and/or direct staff as to handling and/or managing safety complaints and/or complaints concerning the system of work.
8. Further or in the alternative in requiring the Plaintiff to perform the work as referred to, the First Defendant is in breach of its statutory duties prescribed by the Occupational Health and Safety Act 1985 (Vic) and the regulations made pursuant thereof.
PARTICULARS OF THE
FIRSTDEFENDANT’S BREACH OF STATUTORY DUTIES
The Plaintiff refers to and repeats the particulars set out in paragraph 7 above.
9. Further and/or in the alternative, the Plaintiff’s injuries were caused by the breach or breaches by the
FirstDefendant of the statutory duties owed to the Plaintiff pursuant to the Occupational Health and Safety Regulations 2007. Without limiting the generality of the foregoing, theFirstDefendant failed to comply with:(a) Regulation 2.1.1 of the Regulations, in failing to install, use and maintain any or any adequate measure to control risk;
(b) Regulation 2.1.2 of the Regulations, in failing to provide information, instruction and training to enable the Plaintiff to perform his work in a manner that was safe and without risk to health;
(c) Regulation 3.1.1 of the Regulations, in failing to carry out identification or assessment of tasks involving hazardous manual handling;
(d) Regulation 3.1.2 of the Regulations, in failing to ensure that the risk of musculoskeletal disorder associated with a hazardous manual handling task was eliminated so far as was reasonably practicable;
(e) Regulation 3.1.3 of the Regulations, in failing to ensure that any measures implemented to control risks in relation to musculoskeletal disorders were properly reviewed and/or revised.
The defence
5The defendant accepts that the plaintiff suffers from a condition of the lumbar spine that ultimately required surgery in 2020.
6The defendant accepts that the plaintiff suffered injury to his right shoulder that required a surgical repair.
7The defendant accepts that in light of the plaintiff’s back condition and right shoulder injury he is no longer fit to perform unrestricted duties as a cleaner. However, it submits that:
1.the court should not be satisfied that the low back condition was caused by the plaintiff’s employment with it between 2000 and 2008 in negligent circumstances or by a breach of statutory duty and;
2.the court should not be satisfied that the plaintiff’s right shoulder injury occurred in negligent circumstances or was caused by a breach of statutory duty;
3.even if the plaintiff’s employment between 2000 and 2008 did result in some symptoms of low back pain, the court should not be satisfied that it was a cause of the deterioration in the plaintiff’s symptoms from 2008 onwards and was a cause of the need for back surgery in 2020;
4.if the plaintiff’s employment was a cause of his ongoing low back pain, the court should be satisfied that there is insufficient evidence as to which of his work duties contributed to such pain, and that the plaintiff has proved unable to connect the low back pain to negligence or breach of regulations by the defendant; and
5.the plaintiff retains a capacity for work.
The plaintiff’s evidence
8In addition to his own testimony, the plaintiff led the following oral evidence:
· Mr Geoffrey Charles Waddell;[2]
· Dr Hakan Baglar;[3]
· Dr Justin Nathan Lewis;[4]
· Mr Thomas Carl Kossmann.[5]
[2] Transcript (“T”) 160 – T229.
[3] T230 – T252.
[4] T255 – T269.
[5] T396 – T404.
9The plaintiff also tendered the following documentary evidence:
· Report of Mr Waddell dated 7 June 2019;[6]
[6] Exhibit P1, Plaintiff’s Court Book (‘PCB’) 194-264.
· Supplementary report of Mr Waddell dated 6 September 2021;[7]
[7] Exhibit P2, PCB 265-277.
· Report of Dr Hakan Baglar dated 29 July 2019;[8]
[8] Exhibit P3, PCB 103-107.
· Report of Dr Hakan Baglar dated 22 August 2021;[9]
[9] Exhibit P4, PCB 108-113.
· Report of Dr Hakan Baglar dated 12 May 2014;[10]
[10] Exhibit P5, PCB 82-84.
· Report of Dr Hakan Baglar dated 17 November 2014;[11]
[11] Exhibit P6, PCB 85-88.
· Report of Dr Hakan Baglar dated 15 December 2014;[12]
[12] Exhibit P7, PCB 89-91.
· Report of Dr Hakan Baglar dated 5 November 2015;[13]
[13] Exhibit P8, PCB 92-94.
· Report of Dr Hakan Baglar dated 9 February 2016;[14]
[14] Exhibit P9, PCB 95-98.
· Report Dr Hakan Baglar dated 25 July 2016;[15]
[15] Exhibit P10, PCB 99-102.
· Report of Dr Justin Lewis dated 12 August 2021;[16]
[16] Exhibit P11, PCB 184-193.
· Occupational Health & Safety Regulations 2007 – definitions and in particular Part 3.1;[17]
[17] Exhibit P12.
· Ultrasound - Right Shoulder 19 June 2008;[18]
[18] Exhibit P13, PCB 47.
· MRI - Right Shoulder 28 July 2008;[19]
[19] Exhibit P14, PCB 48-49.
· Ultrasound - Right Shoulder 21 March 2009;[20]
[20] Exhibit P15, PCB 50.
· CT - Cervical Spine 20 January 2010;[21]
[21] Exhibit P16, PCB 51.
· MRI - Spine 12 December 2012;[22]
[22] Exhibit P17, PCB 52.
· MRI - Spine 14 May 2013;[23]
[23] Exhibit P18, PCB 53.
· Joint CAT Scan 14 June 2013;[24]
[24] Exhibit P19, PCB 54.
· X-ray - Lumbosacral Spine 30 September 2013;[25]
[25] Exhibit P20, PCB 55.
· MR of 1 Region Spine for Stenosis 6 May 2014;[26]
[26] Exhibit P21, PCB 56-57.
· MRI - Lumbar Spine 6 February 2016;[27]
[27] Exhibit P22, PCB 58-59.
· MRI - Spine 28 January 2017;[28]
[28] Exhibit P23, PCB 60-61.
· MR of 1 Region for Stenosis 11 August 2019;[29]
[29] Exhibit P24, PCB 62.
· MRI - Lumbar Spine 18 March 2020;[30]
[30] Exhibit P25, PCB 63-64.
· Report of Mr Alan Norman, physiotherapist, dated 14 July 2008[31] and an undated report;[32]
[31] Exhibit P26, PCB 65.
[32] Exhibit P26, PCB 66-70.
· Reports of Mr Robert Steele, orthopaedic surgeon, dated 15 October 2008,[33] 19 January 2009,[34] 20 January 2009,[35] 23 June 2009[36] and
4 August 2009;[37][33] Exhibit P27, PCB 71.
[34] Exhibit P27, PCB 72.
[35] Exhibit P27, PCB 73.
[36] Exhibit P27, PCB 74.
[37] Exhibit P27, PCB 75.
· Reports of Dr Neil McCann, general practitioner dated 24 August 2010,[38] 21 March 2011[39] and 11 November 2014;[40]
[38] Exhibit P28, PCB 76-78.
[39] Exhibit P28, PCB 79.
[40] Exhibit P28, PCB 80-81.
· Reports of St Vincent’s Hospital dated 21 January 2014,[41] 5 August 2014,[42] 27 August 2019,[43] 19 November 2019,[44] 19 March 2021,[45] 17 May 2021,[46] 12 August 2021[47] and 4 October 2021;[48]
[41] Exhibit P29, PCB 114-115.
[42] Exhibit P29, PCB 116-117.
[43] Exhibit P29, PCB 118.
[44] Exhibit P29, PCB 119-120.
[45] Exhibit P29, PCB 121-123.
[46] Exhibit P29, PCB 124-125.
[47] Exhibit P29, PCB 126-127.
[48] Exhibit P29, PCB 128-129.
· Report of Dr Tina Thomas dated 4 October 2021;[49]
[49] Exhibit P30, PCB 128-129.
· Report of Dr Matthew Tagkalidis dated 14 August 2014;[50]
[50] Exhibit P31, PCB 130-140.
· Report of Dr Joseph Slesenger dated 10 September 2014;[51]
[51] Exhibit P32, PCB 141-148.
· Report of Mr Greg Etherington dated 22 October 2014;[52]
[52] Exhibit P33, PCB 149-152.
· Report of Dr David Vivian dated 22 September 2015;[53]
[53] Exhibit P34, PCB 153-156.
· Reports of Mr Thomas Kossmann dated 28 February 2019,[54] 8 July 2021[55] and 6 October 2021;[56]
· Progress Notes – Narregate Medical & Dental Centre, various dates;[57]
· Reports of Dr Gregory White dated 05 February 2015[58] and 25 May 2019;[59]
· Consolidated Property Services Australia Pty Ltd, Employee Handbook - Company Policies, Procedures, Safety - Version one, undated;[60]
· OH & S Operational Procedures Manual dated November 2001;[61]
· Formal Written Warning dated 2 December 2009;[62]
· Training Module Mopping, undated;[63]
· Consolidated Property Employee Handbook;[64]
· Video 1 dated 13 November 2015;[65]
· Occupational Health and Safety (Manual Handling) Regulations 1999.[66]
[54] Exhibit P35, PCB 157-168.
[55] Exhibit P35, PCB 169-181.
[56] Exhibit P35, PCB 182-183.
[57] Exhibit P36, PCB 298-313.
[58] Exhibit P37, Defendant’s Court Book (‘DCB’) 119-135.
[59] Exhibit P37, DCB 136-145.
[60] Exhibit P38, DCB 312-347.
[61] Exhibit P39, DCB 451-506.
[62] Exhibit P40, DCB 516.
[63] Exhibit P41, DCB 523-532.
[64] Exhibit P42, DCB 427-450.
[65] Exhibit P43.
[66] Exhibit P44.
The defendant’s evidence
10The defendant led oral evidence from:
· Mr Mark Coehlo;[67]
· Ms Julia Knight;[68]
· Dr Michael Joseph Dooley.[69]
[67] T289 – T313.
[68] T314 – T352, T354 – T362.
[69] T364 – T387.
11The defendant tendered the following documentary evidence:
· Signed proof of induction document signed by the plaintiff dated
9 January 2007;[70][70] Exhibit D1, DCB 512.
· Incident injury report form in respect of the plaintiff;[71]
[71] Exhibit D2, PCB 319.
· 19 February 2010 Letter of warning;[72]
[72] Exhibit D3, DCB 517.
· Letter of resignation dated 5 June 2010;[73]
[73] Exhibit D4, PCB 321.
· Safe work method – Damp Mopping;[74]
[74] Exhibit D5, DCB 547-548.
· Safe work method – Sweeping;[75]
[75] Exhibit D6, DCB 549-550.
· Safe work method – Collecting Rubbish with 240L bins;[76]
[76] Exhibit D7, DCB 551-552.
· A4 sheet with 2 photos of Bin 1 and Bin 2;[77]
[77] Exhibit D8.
· Lower back Impairment Benefit Claim form;[78]
[78] Exhibit D9, DCB 34.
· Report of Dr Michael Dooley dated 17 February 2015;[79]
[79] Exhibit D10, DCB 146-150.
· Report of Dr Michael Dooley dated 18 July 2019;[80]
[80] Exhibit D11, DCB 151-154.
· Report of Dr Michael Dooley dated of 5 December 2019;[81]
[81] Exhibit D12.
· Report of Dr Michael Dooley dated 9 August 2021;[82]
[82] Exhibit D13, DCB 155-159.
· Worker's Injury Claim Form dated 11 August 2008[83] and Employer Injury Claim Report dated 14 August 2008;[84]
· Reports of Mr Peter Kudelka dated 24 April 2009,[85] 13 May 2009[86] and 1 June 2009;[87]
· Reports of Dr David Barton dated 13 August 2009,[88] 12 February 2010[89] and 18 February 2010;[90]
· Reports of Dr Michael Baynes dated 03 May 2011,[91] 11 May 2011[92] and 17 April 2019;[93]
· 130 Week Vocational Assessment report dated 9 May 2011;[94]
· Consolidated Property Services Australia Pty Ltd, Employee Handbook, March 2001;[95]
· Consolidated Property Services Australia Pty Ltd, Company Policies, Procedures, Safety Employee Handbook 1 May 2004;[96]
· Manual Handling dated 24 November 2006;[97]
· CAR/Hazard/Incident/Improvement form dated 4 July 2008;[98]
· Report of Mr Philip Sharp dated 17 October 2014.[99]
[83] Exhibit D14, DCB 28-29.
[84] Exhibit D14, DCB 30-31.
[85] Exhibit D15, DCB 51-54.
[86] Exhibit D15, DCB 55-56.
[87] Exhibit D15, DCB 57.
[88] Exhibit D16, DCB 58-64.
[89] Exhibit D16, DCB 65-68.
[90] Exhibit D16, DCB 69-72.
[91] Exhibit D17, DCB 73-77.
[92] Exhibit D17, DCB 78.
[93] Exhibit D17, DCB 79-85.
[94] Exhibit D18, DCB 256-265.
[95] Exhibit D19, DCB 348-389.
[96] Exhibit D20, DCB 390-426.
[97] Exhibit D21, DCB 509-510.
[98] Exhibit D22, DCB 514-515.
[99] Exhibit D23, DCB 110-118.
12I have read the evidence tendered by the parties and I have had regard to each of the witnesses and have also considered the addresses of counsel.
13The substantial volume of medical material produced at the trial of the proceeding is primarily explicable because of the extensive period of time the plaintiff’s health and injury related conditions embrace together with the length of time that has passed until the proceeding came on for trial. In order to appreciate the arguments advanced by the parties, it is necessary that I address a series of historical events. However, I intend to refer only to that history about which the parties made submissions and to such of those exhibits that I consider relevant to my assessment of any damages to which the plaintiff may be entitled as a result of any negligence or statutory breach by the defendant.
The plaintiff
14The plaintiff was born in Adana in the South of Turkey in 1972. He completed secondary school education in Turkey. There he commenced studies in Civil Engineering. He arrived in Australia in 1996. In around 1997 or 1998 he found employment as a process worker for a plastic manufacturing business. He married. The marriage ended. His wife and two daughters of their union, aged 12 and 15 years, have returned to Turkey to live.[100] After the birth of their first child in 2006, the plaintiff had primary care responsibilities while his wife worked on weekends.[101]
[100] Plaintiff’s Affidavit affirmed on 30 October 2014, PCB 42.
[101] T153, L9-28.
Employment
15The plaintiff commenced part-time work as a cleaner for P&O Berkeley Challenge at Crown Casino in around 1999.[102]
[102] Plaintiff’s Affidavit affirmed on 30 October 2014, PCB 43.
Employment with the defendant
16The plaintiff commenced work with the defendant as a full-time cleaner on 6 June 2000.[103] Initially his place of work was Crown Casino on a part-time basis performing night shift. There he undertook what was described as general pan and broom and vacuuming duties. He was transferred to work at The Glen Shopping Centre, Glen Waverley (“The Glen”) in either 2000 or 2001.[104] The commencement date was no better identified.
[103] Exhibit D14, DCB 29, 31.
[104] Plaintiff’s Affidavit affirmed on 30 October 2014, PCB 43.
17By 2002 the plaintiff was working full-time ordinary hours at The Glen,[105] that is, 9.00am to 5.30pm, Monday to Friday together with work on some Saturdays.[106] He maintained these ordinary hours of work for the remainder of his employment with the defendant.[107] In addition to his ordinary hours, the plaintiff performed occasional overtime/night shifts between the hours of 6.00pm and 9.00pm.[108] In cross-examination, the plaintiff said he worked night shifts until, Ms Rodriguez, a manager employed by the defendant, left the defendant’s employ[109] which, according to Ms Britbart, likely occurred in about September 2006.[110]
[105] T57, L22-23.
[106] T25, L19-25.
[107] T57, L26-28.
[108] T25, L21-24; T57, L29- T58, L4.
[109] T58, L9-13.
[110] T82, L26.
18The plaintiff was transferred to Victoria Gardens Shopping Centre, Richmond, to work but he returned to The Glen after just “a few months”.[111] Ms Britbart suggested to the plaintiff that he moved back to The Glen from Victoria Gardens in November 2006.[112] This seems likely to have been the case and, thus, it seems that the plaintiff commenced his short stint at Victoria Gardens well into the second half of 2006, and subsequent to the onset of back pain that he identified occurred on or around 1 July 2006.
[111] T66, L29-30.
[112] T79, L28.
Making sense of the plaintiff’s various work duties associated with back injury
19Because of the nature of the alleged onset and development of the low back pain that presented in 2006, and separately a right shoulder injury in 2008, considerable time was taken in evidence addressing the plaintiff’s various work duties and how they might be said to have caused or contributed to the same. I will address both accounts of injury and the competing evidentiary accounts.
20Although the plaintiff performed a variety of tasks as a cleaner, his duties were not contained, for example, in a position description. However, a number of the duties he performed as a cleaner were of a type that one would expect to find among the ordinary and everyday indicia of such employment. It is to some of these duties that the plaintiff was required to perform and how he went about their execution to which much evidence was given and attention was directed and submissions made.
Manual Handling of individual drums/boxes of sealant and stripper
21As concerns the plaintiff’s back injury, one duty relied upon by him as causing or contributing to his injury negligently and amounting to hazardous manual handling was his involvement with individual drums/boxes of sealant and stripper. The plaintiff said in his evidence-in-chief that he handled “very heavy” 25-litre drums of sealant and stripper which he collected on delivery and took to the storage room.[113] He said that an ordinary delivery consisted of between 10 to 15 drums. He said he would load and unload the drums from shopping trolleys.[114]
[113] T26, L16.
[114] T26, L14.
22The plaintiff said that he was also required to handle the drums when performing scrubbing machine duties, an activity he performed once every couple of months,[115] and upwards of three consecutive nights when working night shift.[116] He said he needed to lift the drums and pour their contents into buckets and watering cans.[117]
[115] T66, L20-21.
[116] T90, L1-2.
[117] T26, L20-T27, L3.
23In cross-examination, the plaintiff said that he collected deliveries of drums of sealant and stripper during the period of Ms Rodriguez’s employment, that is, from about 2000 or 2001, and up until he was transferred to Victoria Gardens sometime in the second half of 2006.
24The defendant did not lead evidence contradicting the plaintiff’s account of these activities.
25I accept that the plaintiff had occasion to manually handle 25-litre drums of liquid as part of his duties including when he was performing night shift. I am satisfied that he was engaged in this activity from time to time, and from about 2001 up to around 1 July 2006.
26The plaintiff said that the manual handling of the drums required the use of “high force”.[118] Mr Richards, in the course of his final address, made note that the plaintiff was not challenged by the defendant on the volume of the containers, or that the manner in which he performed the tasks associated with them did not involve the use of high force. I do not think it is of any moment that the plaintiff was not challenged by the defendant that the task involved high force. Whether it did or did not involve high force, and whether it posed a risk of musculoskeletal disorder, is not made good by the oral evidence of the plaintiff asserting that it did or the defendant arguing to the contrary. In any event, and as a matter of fact, I am satisfied that the task did require the use of high force as it is defined in law. That however, of itself, is insufficient to establish it as causative of injury and damage.
[118] T26, L31; T33 L7.
27The plaintiff said he believed it was probably the case that he also took delivery and collected drums of liquid after Ms Rodriguez ceased employment with the defendant and a Mr Spur became his manager.[119] Mr Spur’s employment commenced sometime after the conclusion of Ms Rodriguez’s employment in September 2006, and the evidence suggests that Mr Spur continued in this role until Ms Knight took up a contact management and supervisor’s role with the defendant in about September 2007.[120]
[119] T91, L27.
[120] T93, L15.
28The plaintiff said that, as well, he took delivery of drums of sealant and stripper during Ms Knight’s employment. I do not accept the accuracy of the plaintiff’s evidence that he did so. The extent of the evidence regarding the plaintiff performing this activity after Ms Rodriguez left the defendant’s employment is that he took charge of one delivery of boxes of 5-litre containers on 18 February 2010, that resulted in him receiving a written letter of warning dated 19 February 2010 from Mr Coehlo, another manager employed by the defendant. The plaintiff signed this letter. The letter recounted that the plaintiff had assisted two work colleagues to: “lift and unload boxes containing floor stripper and sealer and load them onto a pallet in the loading dock area” and with the boxes weighing “in the vicinity of 12 -15 kgs.”[121]
[121] T38, Exhibit D3, DCB 517.
29The plaintiff was issued the warning by his employer because at the time he was restricted to not lift greater than 2 kilograms following arthroscopic surgery he underwent in January 2009 to repair a rotator cuff tear in his right shoulder – that shoulder injury being the subject of the plaintiff’s further allegation that it occurred in negligent and wrongful circumstances when he was engaged in lifting a heavy bin liner.
30The plaintiff agreed with Ms Britbart that after late 2006 sealants and strippers arrived packaged in boxes of two 5-litre containers rather than single 25-litre drums.[122]
[122] T92, L21-26.
31Overall, and having considered the evidence, I am not satisfied that the plaintiff was involved in lifting and emptying 25-litre drums of sealant and stripper after approximately July 2006.
Manoeuvring pallet jacks
32Another of the duties the plaintiff testified having undertaken and on which he relies as a work duty that exposed him to a foreseeable risk of back injury and that involved high force that was a cause of musculoskeletal injury was a requirement to operate pallet jacks loaded with deliveries. The operation required manual pushing/pulling of stock deliveries from the loading dock to a storage area located in the centre carpark.[123] The plaintiff said the deliveries consisted of drums of strippers, sealants, hand soaps, and toilet paper. He estimated that each load carried between four to eight drums of strippers and sealant. The plaintiff’s evidence that he manoeuvred pallet jacks with stock as part of his employment was not challenged by the defendant.
[123] T33, L10-13.
Expert opinion evidence - Mr Waddell
33Mr Waddell is a professional consulting engineer with experience relevant to ergonomics and occupational/work health and safety. He provided expert opinion evidence on behalf of the plaintiff by way of two reports and upon which he was cross-examined.
34In the first of his two reports, Mr Waddell addressed the task of manoeuvring pallets. He said he understood that the plaintiff was required to manoeuvre pallet jacks carrying loads of up to 250 kilograms.[124] He described the task as one involving high force, and therefore, he believed that a risk assessment was required by the defendant. He reported that he was unaware if the defendant had undertaken a risk assessment of the task or if it had created a Safe Work Method Statement (“SWMS”) that addressed manoeuvring of pallet jacks. Mr Waddell considered that the defendant could have provided the plaintiff with an electronic pallet jack, which would have reduced the risk of injury.[125]
[124] Exhibit P1, PCB 212, [4.90]-[4.91].
[125] Exhibit P1, PCB 249, [7.79](u).
Damp mopping – wringing the mop
35Another duty the plaintiff said he performed was mopping. In examination-in-chief, he again said that “high force” was required to pull the mop through the wringer of the bucket that was supplied as part of his equipment.[126] I have attached little probative worth to the plaintiff’s frequent use of this turn of phrase “high force”, and it struck me as something akin to a rote response on his part, and perhaps one intended to reflect if not to reinforce, his claim for breach of regulation. Instead, I have treated his evidence as intended to convey that the task of wringing a mop, as with his evidence of the manoeuvring of pallets jacks, and lifting boxes of sealant and stripper, as well as his subsequent evidence of emptying bin liners, to be tasks that required him to exert himself to a considerable degree.
[126] T27, L28.
36It is worth mentioning that in a medical attendance by the plaintiff on his general practitioner, Dr McCann, dated 27 May 2010, and consequently, some years after the alleged work injuries, he recorded that the plaintiff’s main problems he had encountered at work were “mopping and changing bins”.[127]
[127] Exhibit P36, PCB 301.
37At paragraphs [4.71] and [6.17] of his first report, and at paragraph [10] of his second report,[128] Mr Waddell described the motion and forces associated with wringing mops for damp mopping[129] as a process that involved the need for the plaintiff to bend down and pull the mop through the ringer.
[128] Exhibit P2, PCB 266.
[129] Exhibit P1, PCB 211 and 221-223.
38The defendant produced a SWMS for “Damp Mopping”.[130] The SWMS recognised that mopping involved a hazard associated with: “Manual handling injuries” and “Back/shoulder sprain & strain”. The procedure for Damp Mopping expressed in the SWMS, instructed an employee to adopt the following steps:
Swirl mop in bucket
Back straight, bend knees, pull mop through wringer
Wring mop as dry as possible
Holding mop lightly between two hands spin the pole to open the fibres
Place on the floor
Mop floor in a figure 8 motion
Change water frequently
[130] Exhibit D5, DCB 547-548.
39Despite the prescriptive instruction contained in the SWMS, Mr Waddell criticised the defendant for not providing the plaintiff with a mop and bucket that did not require him to bend when wringing it out. At paragraph 4.71 of his first report Mr Waddell wrote:
Mr Atmis operated the wringer by first placing a foot on either side of the bucket. One foot was placed on a foot pad, while the other was placed on a foot pedal which closed the wringer on the mop head. He would then bend down, hold the mop handle close to the mop head ('for better grip', he said), then pull up to wring the mop. He said that 'the mop was sometimes hard to pull up’.[131]
[131] Exhibit P1, PCB 211.
40Mr Waddell suggested that the defendant could have reduced the area of required mopping to smaller sections and so reduced the amount of reaching required by a cleaner. In addition, the defendant could have instructed cleaners in the application of back and forth motions, something Mr Waddell thought would have eliminated twisting of the spine.[132]
[132] T181, L16-19.
41Despite Mr Waddell referring to the plaintiff having told him of his need to bend, the plaintiff’s evidence-in-chief did not include a requirement to bend when wringing out the mop. Rather, in cross-examination, the plaintiff said he was required to apply high force when pulling the mop head through the wringer in order to expel excess liquid.[133]
[133] T27, L25-28.
42The plaintiff’s account of the extent of effort that he required to apply in pulling the mop through the wringer is to be compared with Ms Knight’s contradictory testimony. However, the utility of Ms Knight’s evidence on the performance of the task, calls to be considered in light of the fact that the defendant’s SWMS required a mop to be wrung as dry as possible, and it also recognised that the task of damp mopping involved a risk of manual handling injuries and back and shoulder strain and sprain.
43The defendant’s SWMS for mopping, post-dated when the plaintiff commenced mopping, a task he said he had been engaged in since the early days of his employment with the defendant, and the SWMS also post-dated the onset of the back injury the plaintiff said he experienced at work on 1 July 2006.
44Mr Richards contended that the defendant as a reasonable employer ought to have foreseen the risk of mopping causing injury, and to have foreseen the risk of the same prior to the introduction of the SWMS in 2007. He argued that the defendant should have acted to prevent or ameliorate such a risk of injury in a manner consistent with the recommendations made by Mr Waddell.
45Mr Richards argued that, at any rate, the 2007 SWMS was itself an instrument of instruction putting at risk injury because it directed cleaners to ring the mop as dry as possible, an action that required the application of force with the foot in order to achieve maximum dryness of the mop.
46I am satisfied that the execution of damp mopping duties exposed the plaintiff to a risk of musculoskeletal injury. I am also satisfied that the defendant did not establish that it had engaged in a hazard identification or that it had sought to control the risk in accordance with Chapter 3, Part 3.1 of the Occupational Health and Safety Regulations 2007. However, these omissions themselves are not evidence that proves that breach caused injury.
Manoeuvring of Scrubbing Machine
47The plaintiff described a requirement, on occasions when working on night shift between about 2001 and September 2006, to use a scrubbing machine. In this task, too, he described a need to apply “high force” so as to manoeuvre the scrubbing machines.[134] He said that the scrubbing machine was motorised and it required the use of a throttle to move it forwards and backwards.[135]
[134] T27, L19.
[135] T65, L29 – T66, L1.
48Mr Waddell took a history from the plaintiff that the scrubbing machine, but in particular the “Tenant” machine that he had occasion to operate, was difficult to use because:
· it had a heavy stainless-steel handle, which the plaintiff would need to support while walking behind the machine;[136] and
· the plaintiff found the machine difficult to turn, in particular while it was full of water.[137]
[136] Exhibit P1, PCB 210, [4.64].
[137] Exhibit P1, PCB 210, [4.65].
49In cross-examination, despite being challenged on his account of the force required to move the scrubbing machines, the plaintiff maintained that the Tenant machine required “heavy – sometimes pushing or pulling, because it was bigger than the others”[138] and he said it was heavy for him.[139]
[138] T88, L29 – T89, L8.
[139] T89, L15.
50In his first report at paragraph [779 (t)],[140] Mr Waddell expressed an opinion that the defendant could have provided the plaintiff with a lighter weight scrubbing machine for use, and that this was a change reportedly adopted in the workplace after the plaintiff's injury.
[140] Exhibit P1, PCB 248.
51The defendant produced no evidence of a risk assessment or of training material or instruction relevant to the operation of the scrubbing machines or Tenant machines.
52I accept that the plaintiff was exposed to a risk of musculoskeletal injury in the execution of mopping duties. I am satisfied that the defendant did not establish having engaged in a hazard identification or sought to control the risk in accordance with Chapter 3, Part 3.1 of the Occupational Health and Safety Regulations 2007. I also repeat my previously expressed statement that the fact of the same may evidence the fact of breach but not be productive of injury.
Other duties
53Despite Mr Waddell’s reporting having addressed other duties the plaintiff carried out, including reaching and dusting, the cause of the plaintiff having sustained a back injury was concentrated very much on an examination of the activities identified in the preceding paragraphs and the accumulation of forces associated with their execution. However, it is appropriate to mention that the plaintiff was also required to empty rubbish bins throughout The Glen, and this was a duty associated not only with the plaintiff’s claim for his back injury but separately pleaded as productive of the onset of a right shoulder injury suffered at work on 17 June 2008.
The state of the plaintiff’s spine
54The plaintiff said that prior to 1 July 2006 he had not experienced significant mid, upper or lower back pain.
55The first report of the plaintiff’s back pain following the alleged onset of injury is contained in a note of attendance by him on Dr McCann on 3 July 2006. It records:
Onset back pain at work on Saturday - cleaner at The Glen, was working outside. Pain upper & mid-dorsal regions & some radiation to R leg Tender R upper dorsal R mid-dorsal regions & R lower lumbar region. SLR 45 degrees on R. Flexion to mid thigh Muscular/STI - Nurofen, keep warm & moving. Cert 4/07.[141]
[141] Exhibit P36, PCB 307.
56Dr McCann’s account did not identify any work activity in which the plaintiff was engaged that day. Indeed, the plaintiff’s evidence did not identify any activity on his part that was associated with the onset of pain on 1 July 2006 at work. This was a deficiency relied on by Ms Britbart. However, I must bear in mind, that the plaintiff’s case when opened by Mr Richards, was not of a specific work activity on 1 July 2006 that caused a spinal injury but instead that, on 1 July 2006, the plaintiff experienced a manifestation or onset of pain which, when medically understood, amounted to an aggravation of a pre-existing degenerative condition due to the accumulated years of heavy and high force duties in which the plaintiff was engaged in his employment with the defendant.
Back injury – defendant’s submissions
57Ms Britbart submitted that I should not be satisfied on the evidence that the plaintiff continued to experience regular low back pain between 1 July 2006 and up to 17 June 2008 when he allegedly suffered the separate right shoulder injury.
58Ms Britbart relied on an absence of evidence by the plaintiff of the work he was performing when he experienced pain on 1 July 2006. In fact, Ms Britbart submitted that the extent of the evidence is no more than the plaintiff having experienced occasional low back pain that could come on at home and was unrelated to a specific work activity.
59Ms Britbart argued that I should be satisfied that the plaintiff’s back pain is related to serious degeneration with evolving symptomatology that has only manifested itself in a serious form many years after 1 July 2006.
Back injury – plaintiff’s submissions
60Mr Richards submitted that I should be satisfied by the plaintiff’s evidence, together with the preponderance of medical evidence, that the plaintiff suffered a work-related aggravation of pre-existing degenerative changes to his spine. Mr Richards additionally relied on the unchallenged evidence that, for a five-year period from 2001 to 2006, the plaintiff was regularly engaging in high force duties, the performance of which temporally coincided with the onset of lower back pain on 1 July 2006.
61I am not troubled by the lack of identification of a work duty or duties in which the plaintiff was engaged on 1 July 2006 when he claims to have experienced the onset of pain in the back. I consider the criticism by the defendant has limited work to do given that the plaintiff’s claim is not that a particular work action caused injury on that day, but instead, that on that day he experienced the onset of pain as a result of the accumulation of strenuous and arduous activities he had been engaged in since the commencement of his employment that comprised an aggravation to his underlying back condition.
The medicine
62In assessing the case that was pressed by the plaintiff, it is important to appreciate the medicine relied on by the parties because, although there is no question that the defendant owed the plaintiff a duty of reasonable care to ensure he was not exposed to a foreseeable risk of harm, and that it had a positive set of duties under regulation when engaged by the tasks at hand, nonetheless, any negligence by way of a departure from the standard of care or breach of duty must result in injury caused by the same. It is to the medicine that I next turn my attention.
Mr Norman
63Mr Norman is a physiotherapist. He provided two reports to the plaintiff’s solicitors.[142] In an undated report. Mr Norman recorded that the plaintiff had experienced pain in the upper right thoracic region in late November 2008, along with increased cervical and thoracic muscle pain. Post-surgery, he was noted to suffer widespread pain through the thoracic and lumbar spine.[143]
[142]Exhibit P26, PCB 65, 66-70.
[143] Exhibit P26, PCB 68.
Dr McCann
64Dr McCann provide three brief reports.[144] In the last of them and dated 11 November 2014,[145] he wrote:
The record of 3/7/2006 clearly links onset of back pain to his employment as a cleaner. It states that the main pain was in the thoracic region but does not record radiation of pain to right leg.
Lumbar canal stenosis as on enclosed report from St Vincent’s Hospital Neurosurgery outpatients would appear to be long-standing and thus work as a cleaner would more than likely aggravate this condition making work a significant contributing factor.
[144]Exhibit P28, PCB 76-78, 79, 80-81.
[145] Exhibit P28, PCB 80-81.
65Dr McCann did not see the plaintiff after April 2011 and so his report, making good a connection between the plaintiff’s work as a cleaner and his low back condition, comes to be appreciated in that light and as time limited. Naturally enough, because Dr McCann did not see the plaintiff after April 2011, his 2014 report could not address the plaintiff’s subsequent history.
Dr Vivian
66Dr David Vivian is a musculoskeletal physician and he provided a report on behalf of the plaintiff dated 22 September 2015.[146] Addressing the plaintiff’s history,
Dr Vivian wrote:He was employed by Consolidated Property Services from June 2000. His work involved general cleaning duties and more specifically the use of cleaning machines, sweeping and emptying out static rubbish bins, (lifting out bin liners filled with rubbish into wheelie bins). He said that in the course of his work he did develop low back pain. He did complain of this to his GP. The back pain would come and go and he would put up with it.[147]
[146] Exhibit P34, PCB 156.
[147] Exhibit P34, PCB 153.
67Dr Vivian went on to say:
He also experiences low back pain and neck pain. These conditions have been aggravated by the nature of his work over the years. He has some degenerative changes, but such changes would not necessarily have meant that he would have developed pain in any case. His work was active and did involve mechanical loading of the back and neck and thus it is reasonable to assume that work has contributed to the development of and the maintenance of these symptoms.[148]
[148] Exhibit P34, PCB 156.
68Despite Dr Vivian’s account of what he was told by the plaintiff, and for the reasons I have explained earlier, I do not accept that in the course of the plaintiff’s work prior to the experience of pain on 1 July 2006, he developed low back pain or that he complained of the same to his general practitioner.
Dr Baglar
69Among numerous reports Dr Baglar provided, on 5 November 2015, he wrote the following:
His lumbosacral spine condition is significant multi-level degenerative changes, moderate to severe central canal stenosis at L4/S caused by a disc and osteophyte complex which is also compressing his both L5 nerve roots.
The information obtained from Serdar and also from various sources revealed that he worked as a cleaner for ten years, between June 2000 and 2010. He was employed by Consolidated Property Services. His tasks there were repetitive mopping, sweeping, using a buffer machine, using a floor stripping machine, lifting heavy drums of polish and loading them onto pallets, cleaning shop tops and high dusting.
The physical requirement of those described tasks are well known cause for the pathologies described by his imaging studies, particularly if they are performed over a long period. Unfortunately, I was not involved in the earlier stages of his injury but I also reviewed his GP then, Dr Neil McCann’s medical notes at Pakenham Family Health. He had entries in Serdar's medical file relating his medical conditions to his vocational activities.
Taking all those information into consideration along with clinical history l obtained from Serdar, it is highly probable that he developed his medical conditions as a result of duties he performed as a cleaner.
While l am going through various documentation, in preparation of this report, l came across an important statement by Dr McCann.
In his 24 August 2010 dated medical report to ACCS, he stated in the last paragraph of second page that he examined Serdar on 11 June 2008, for his fitness to fulfil his compulsory military Service, as a Turkish citizen and at that time there were no abnormalities or problems with his upper limbs. l believe, this statement by Dr McCann proves that Serdar’s medical condition arose due to his employment as a cleaner.
In conclusion, I am of the opinion that Serdar’s employment is not only a significant factor but the main factor leading to his current state. Heavy physical nature of his vocational tasks and duration of his employment while he was engaged in such physical activities, his life style and absence of any physically strenuous recreational activities in his life all point to one factor as the cause of his current condition. That is his employment. [sic][149]
[149] Exhibit P8, PCB 93 - 94.
70In contrast to his opinion expressed on 5 November 2015, in his report dated 17 November 2014, Dr Baglar could not draw a connection between the plaintiff’s then neck and low back pain presentation and his employment.[150] In cross-examination, when directed to this state of affairs, Dr Baglar endeavoured to explain himself on account of the fact that the plaintiff was a bad historian. This reasoning by Dr Baglar was highlighted by Ms Britbart as can be seen in the following question and answer:
You then go on to say, ‘Serdar is a very bad historian and I had to rely on certain documentation to understand his injury, its progress and its current state’?---Yes, I stand by my statement.[151]
[150] Exhibit P6, PCB 87. T237, L11-14.
[151]T237, L11-14.
71Why Dr Baglar, in his November 2015 report considered the position on medical causation otherwise than expressed in his November 2014 report was not explained by him and, overall, I found aspects of Dr Baglar’s reporting, as well as his oral evidence, unpersuasive and open to question.
72In any event, the plaintiff’s evidence was that he did not perform the so-called high force duties when he was working the day shift in the Fresh Life section of The Glen following his return from Victoria Gardens at the end of 2006.[152]
[152] T86, L14 – 87, L3.
73Dr Baglar accepted that his changed opinion on causation was predicated on his assumptions concerning the tasks he had been told the plaintiff had performed in his work over the period of his employment, but that he did not have specific information about the tasks or the period of time they were performed.[153] Dr Baglar agreed with Ms Britbart that he had not taken a history from the plaintiff about these matters.[154]
[153] T244, L4-8.
[154] T244 L30 – T245 L7.
74Dr Baglar also conceded that the absence of complaint of back pain or the receipt of treatment for low back in the years prior to 2012 is a matter of concern in establishing a link with the plaintiff’s employment.[155] However, he said that it was “general knowledge in medicine” that the more static a person’s lifestyle, the faster the degenerative process becomes.[156]
[155] T244 L18 – 29.
[156] T245 L20 – T246 L22.
Mr Dooley
75Mr Dooley testified for the defendant. Mr Dooley does not believe that the plaintiff’s complaints of low back pain are linked to his employment with the defendant as a cleaner. He said it was inexplicable, scientifically and logically, that the plaintiff’s work duties had the claimed deleterious effect when the plaintiff had been relatively asymptomatic for a number of years after the onset of back pain in July 2006, and up until he ceased work in middle 2010, but only years later, and during which time the plaintiff had not worked at all, for it to manifest itself by way of an acute increase in symptoms.[157]
[157] T376 L31 – T377 L5.
76In Mr Dooley’s opinion, the plaintiff’s radiology demonstrated that he presented with a congenital narrowing of the spine, which further narrowed due to age-related degeneration, as opposed to the work he performed.[158] Mr Dooley further explained his opinion why the plaintiff's low back deteriorated from about late 2012 onwards. He said that increased narrowing led to the plaintiff’s increased symptomology, and that the surgery to which the plaintiff eventually came was a response to a natural evolution of the plaintiff’s congenital condition.[159]
[158] T378, L6 – T379, L13.
[159] T379, L14-18.
77Mr Dooley said that he knew of no medical basis to support the comment from Dr Baglar that inactivity hastens degeneration.[160]
[160] T377, L6 – 28.
78Mr Richards, nonetheless, relied in support of the aetiology of the pre-existing spine condition having been aggravated by the plaintiff’s work duties on a series of responses to questions he put to Mr Dooley in cross-examination. In his final address, Mr Richards referred to the following evidentiary exchange:[161]
So if someone's engaged in physical work that involves on occasion high force in that work, say lifting and carrying heavy objects, that can well give rise to low back pain? ---Yes.
And one can say also in respect of that work, that if one has been asymptomatic before the work is carried out and one is symptomatic after the work is carried out, that one can say well, the effect of that heavy work, and assume there is high force involved in the work, has caused previously asymptomatic degenerative changes to become symptomatic? ---Yes.
And once asymptomatic changes have become symptomatic, they can remain symptomatic? ---Yes.
[161] T381, L26 – T382, L7.
79In my judgement, the assumptions built into the questions put to Mr Dooley by Mr Richards, are not ones that I am satisfied are supported by the evidence. So, contrary to Mr Richards’ submission, I do not accept that Mr Dooley’s answers cause him to fall into the plaintiff’s camp. Whilst Mr Dooley acknowledged that on the basis of ongoing intermittent pain and of high force work duties performed over a prolonged period of time, the same could cause an aggravation of a degenerative change in the lower back,[162] I am not satisfied that such a history of presentation and of the undertaking of ongoing high force duties throughout the plaintiff’s employment is borne out by the evidence.
[162] T382, L13 – T383, L4.
80At all events, even if contrary to my finding, I had adopted Mr Richards’ analysis of Mr Dooley’s evidence to the revealed facts, such that, if there was caused an aggravation to the spine from heavy work which was rendered symptomatic, I would have preferred and adopted Ms Britbart’s submission that, at most, the plaintiff's aggravation from his employment peaked at the level of symptomatology he experienced up until 2008. The plaintiff’s evidentiary account was of a low back pain once a month or so that caused him some problems for a couple of hours.
81Ms Britbart submitted that I should give the observation made by Dr Baglar of inactivity and degeneration no weight, and instead I should prefer Mr Dooley's evidence, as an experienced orthopaedic surgeon, that he was unaware of any basis to support Dr Baglar’s view.
Mr Sharp
82Mr Sharp, surgeon, examined the plaintiff for the purpose of an independent medical examination at the request of the defendant in October 2014. He identified the extent of his understanding of the work duties in which the plaintiff had been engaged when he said that he:
was employed by Consolidated Property Services on 06.06.2000, as a full-time cleaner. He was required to do repetitive cleaning duties using a buffer machine, sweeping, lifting drums of polish and loading them onto a pallet, cleaning shop tops and air conditioning vents. He last worked in about June 2010 and resigned from his job in July 2010.[163]
[163] Exhibit D23, DCB 111.
83Mr Sharp arrived at the same opinion as Mr Dooley, that is, that the plaintiff presented with degenerative changes affecting his lumbosacral spine causing canal stenosis. He characterised these as constitutional degenerative changes and said:
This is a deterioration of a pre-existing injury, namely constitutional degenerative changes in his cervical and lumbosacral spines. I do not believe his employment has contributed to the aggravation.[164]
[164] Exhibit D23, DCB 115.
Mr Kossmann
84Mr Kossmann is an orthopaedic surgeon who examined the plaintiff at the request of the plaintiff’s solicitors for medico-legal purposes and who provided three reports. It is unnecessary to refer to them each. It is sufficient to record that in Mr Kossmann’s report dated 8 July 2021,[165] he provided the following diagnosis and commentary:
1. Cervical spondylosis in form of minor pathology with some ossification in the posterior longitudinal ligament at the C3/4 level causing minor impression on the neural structures;
2. Right shoulder rotator cuff pathology, subacromial impingement, biceps tendinosis and chondral damage of the glenoid;
3. Lumbar spondylosis in the form of disc bulging-protrusions from the T12/L1 level down to the L5/S1 level and narrowing of the neural foramina and spinal canal at the L2/3, L3/4 and L4/5 and L5/S1 levels;
4. Failed back surgery syndrome. SYMPTOMS 1. Cervical spine pain; 2. Deteriorating pain lumbar spine; 3. Pain and movement restrictions right shoulder joint.
…
At today's examination, he complained that he has ongoing pain in his neck, right shoulder and lower back. His pain issues are becoming worse. Mr Atmis has not returned to any employment. He lives in a housing commission apartment.[166]
[165]Exhibit P35, PCB 169-181
[166] Exhibit P35, PCB 176-177.
85Mr Kossmann obtained a history that the plaintiff:
worked for many years as a cleaner. In the course of his employment, he was injured on 17 June 2008 after lifting a 240 litre bin. He suffered from pain in his right shoulder and lumbar spine. He initially continued to work, however, the next day he was not able to lift his right arm due to his pain issues.[167]
[167] Exhibit P35, PCB 176.
86Ms Britbart levelled criticism at the failure by Mr Kossmann to address the very discernible differences in the circumstances of injury relied on for onset of the back condition and the subsequent right shoulder pain. As well, Ms Britbart referred to the absence of a history of the development of the plaintiff’s low back symptoms over the years since.
87In my judgement, the defendant’s submission regarding Mr Kossmann’s reporting has force. The deficiency Ms Britbart identified was impliedly, at least, recognised by Mr Richards, who emphasised instead the reporting by Doctors Baglar, McCann and Vivian, each of whom Mr Richards submitted exhibited a knowledge of the history for both conditions and who, nonetheless, regarded them as work-related. I have already addressed the absence of treatment in the years that followed the alleged onset at work of the low back pain condition. I also have explained why I regard Dr Baglar’s reporting as not making good the issue of medical causation. As to Dr Vivian, I adopt my reasons expressed above.
Other medical practitioners
88Beyond the extent of the medicine already addressed, Ms Britbart highlighted an absence of treating orthopaedic opinion on the nature, or contribution from work by way of causation of the plaintiff’s lower back condition. For example, Mr Steele, orthopaedic surgeon, provided a report to Dr McCann dated 15 October 2008, but his opinion was solely related to the plaintiff’s right shoulder condition.[168]
[168] Exhibit P27, PCB 71.
89Ms Britbart submitted that other doctors who had provided opinions concerning the plaintiff’s low back condition were not provided with accurate histories of the plaintiff’s work duties, when such duties were performed, nor the evolution of the plaintiff’s low back symptoms.
90Dr Slesenger[169] provided an opinion at the request of the plaintiff’s solicitors dated 10 September 2014. He reported on the condition of plaintiff’s right shoulder said to have been injured on 17 June 2008 when he was emptying a bin and in addressing the plaintiff’s subsequent medical history, Dr Slesenger reported that the plaintiff:
advised me that he developed lower back pain around the same time. The pain was initially mild. He reported these symptoms to his GP, though he advised that the GP records from this time are no longer available. The pain in his lower back has persisted and deteriorated recently.[170]
[169] Exhibit P32, PCB 141-148.
[170]Exhibit P32, PCB 143.
91This history of onset recounted by Dr Slesenger is contrary to the evidence. In any event, Dr Slesenger offered no opinion, and proffered no diagnosis, that the plaintiff’s degenerative back was work caused or related.
92Mr Etherington is a spine surgeon who examined the plaintiff and provided a report at the request of his solicitors dated 22 October 2014.[171] Whilst noting a lower back condition, he obtained no history of work involvement.[172] He wrote that the lower back seemed to be symptomatic before the 17 June 2008, in that the plaintiff:
has some lumbar spine degenerative changes which seemed to be symptomatic before 2008. They have become aggravated over the last few months.[173]
[171] Exhibit P33, PCB 149-152.
[172] Exhibit P33, PCB 150.
[173] Exhibit P33, PCB151.
93Mr Etherington said that in 2012 the plaintiff had x-rays and MRI scans done when he was in Turkey, but no specific treatment was undertaken. He reported that in May 2014, the plaintiff was apparently seen at St Vincent's Hospital and a CT and MRI scan organised.[174]
[174] Exhibit P33, PCB 150.
94Ms Britbart argued that there is an insufficiency of evidence of the plaintiff’s work activities, and when they were carried out, that could reasonably permit a finding to be made that the plaintiff’s low back injury was caused by any negligence or breach of regulations by the defendant.
95Ms Britbart submitted that, to the extent that the back injury may have been caused by the plaintiff’s duties from 2006 onwards, that is when the plaintiff said he began experiencing pain, his duties were light and were the subject of safe work methods.[175] To the extent that the plaintiff might be regarded as having suffered a back injury caused by work prior to this time, Ms Britbart contended that the heavier duties were intermittent, and the plaintiff did not associate their performance with low back pain when they were being carried out. Overall, the result so Ms Britbart argued, is that it is not possible to conclude on the balance of probabilities that the plaintiff’s back injury resulted from negligence or breach of regulations by the defendant.
[175] Exhibits D5, DCB 547-8, Exhibit D6 DCB 549-10 and Exhibit D7, DCB 551-2.
Analysis and findings
Was the plaintiff’s work a cause of his back injury?
96I have already noted that the lack of specificity of the particular duties in which the plaintiff was engaged when he experienced the onset of pain on 1 July 2006 of itself would not have precluded me finding that the plaintiff had suffered a work injury as a result of such of them that involved repeated stresses and forces.
97Despite an absence of medical treatment for his back after July 2006, the plaintiff said that he experienced low back pain once a month or once every three weeks thereafter with the pain lasting for a couple of hours.[176] He did not attribute any particular movement of his body that brought on the pain and sometimes, he said, the pain would come on at home,[177] but he was not associating it as work-related.[178] He said he reported his back pain to Dr McCann from time to time.[179] He said although he was not prescribed pain relief, Dr McCann just wrote on a piece of paper the name of over-the-counter medications.[180]
[176] T103, L25 – T104, L2.
[177] T104, L6-11.
[178] T104, L16-20.
[179] T157, L8.
[180] T104, L30 - T105, L1.
98In re-examination, the plaintiff said that after suffering injury to his right shoulder in June 2008 he experienced low back pain when doing things such as “bending” and “swinging” and “repetitive work”.[181] The period of work undertaken following the claimed right shoulder injury on 17 June 2008 is not part of the plaintiff’s claim as causative of or contributory to his back injury, and no application was made to amend the pleading.
[181] T157, L1-3.
99After the alleged onset of the back injury, the plaintiff’s duties were not modified. His employer knew nothing of the incident or its occurrence. The plaintiff had no other time off work for low back pain prior to the right shoulder injury on 17 June 2008.
100In contrast to the subsequent right shoulder injury, the plaintiff did not make a contemporaneous report of low back pain to his employer.[182] He agreed that he did not complain of back pain to his supervisor.[183] In fact, he agreed that he did not report low back pain to his employer until he lodged a claim form on 17 October 2013 that referred to both his shoulder and his back.[184]
[182] T34, L2; T129, L27-28.
[183] T104, L14 - 15.
[184] Exhibit D9, DCB 34.
101In contrast to a lack of absence from work due to back pain, the plaintiff was absent from work due to comparatively minor and unrelated illnesses and incidents for which he obtained medical certificates from Dr McCann.[185]
[185] Exhibit P36, PCB 307.
102I am not satisfied by the extent of the evidence that on the balance of probabilities the plaintiff experienced regular or occasional low back pain that he periodically referred to Dr McCann throughout 2007 and 2008. Although Dr McCann’s note of the plaintiff’s attendance on him on 3 July 2006 refers to back pain, in the three years that followed, there is an absence reference to low back pain, such that I would regard as consistent with the plaintiff’s evidence that throughout this time he was experiencing regular pain.
103I accept the plaintiff’s evidence that, prior to the middle of 2006, he would on occasion be asked by Ms Rodriguez to take deliveries of chemicals and this required him to lift drums with a volume of up to 25 litres.[186] This did not cause him to experience back pain, although he said the effort involved the application of “high force”. The plaintiff was unable to recall any occasion that he was asked to perform such activities after late 2006 and Ms Rodriguez’s departure.[187] Although the plaintiff said that he thought it was the case that other managers had asked him to do so, and that “probably”,[188] he was asked by Mr Spur to do so, he conceded that he had had no recollection of him having done so,[189] or of Ms Knight having made such a request of him from 2007 onwards.[190] The plaintiff agreed that by late 2006 chemicals were delivered in 5-litre bottles.[191] Ms Knight testified that she never asked the plaintiff to take deliveries.[192] I prefer her evidence on this matter to the plaintiff’s.
[186] T32, L24.
[187] T92, L9-16.
[188] T91, L26-7.
[189] T92, L11.
[190] T92, L13.
[191] T92, L21-23.
[192] T325, L27-30.
104The plaintiff commenced his cleaning duties with the defendant in about 2001. At no time prior to July 2006 did he suggest to his employer that any of his duties were difficult. Despite saying that, on Saturday 1 July 2006, he experienced the onset of persistent lower, middle, and upper back pain, he made no complaint of back pain to his employer until 2013. He took no time off work for back pain either before or after 1 July 2006. He received no medical treatment from his general practitioner for a back condition prior to or after 1 July 2006. From late 2006, and with his return to The Glen following his stint at Victoria Gardens, he worked day shift and was located in the Fresh Life section of the shopping centre.[193] From then, and until he resigned his employment in the middle of 2010, he accepted that his duties were light. He said that the cleaning duties he performed were quite light and, in his opinion, did not place any heavy force on any part of his body.[194] I am satisfied they did not include the use of machinery such as the buffing or stripping machines as had occurred in previous years.[195]
[193] T86, L14-21.
[194] T93, L3-12.
[195] T86, L24-25.
105I find the only additional reference in Dr McCann's notes to the plaintiff's spine between 3 July 2006 and date of the right shoulder injury in June 2008, is when the plaintiff attended on Dr McCann for a medical examination he required in preparation for compulsory military service in Turkey. However, on the occasion of this attendance on 11 June 2008, Dr McCann recorded the plaintiff’s spine and upper limbs to be “ok”.[196]
[196] Exhibit P36, PCB 306.
106Even on a generous view of the plaintiff’s medical history beyond the period of the pleading, and so between 11 June 2008 and April 2011, and therefore, prior to his departure for Turkey, there are only three recorded complaints of back pain. On 17 June 2009, that is one year after the claimed right shoulder injury, Dr McCann recorded “Disturbed sleep, unable to sleep on R side & lower backache sleeping on back.”[197] On 5 December 2009, after cleaning rails at work, and on 6 January 2010, it being noted that the plaintiff complained of “pain into shoulder, neck & back”.[198]
[197] Exhibit P36, PCB 303.
[198] Exhibit P36, PCB 302.
107Despite the plaintiff maintaining that he made complaints of back pain to
Dr McCann during this time,[199] given other relatively minor matters noted in the plaintiff’s clinical record, I find it less probable than not that Dr McCann would have omitted complaints of low back pain had they been made by the plaintiff to the extent he suggested. I am not satisfied they were.[199] T105, L4-5.
108By 2011, the plaintiff’s wife had returned to Turkey to live, and it was in 2011, that the plaintiff travelled there in what would prove to be a failed attempt to salvage their marriage. It was also during this time when the plaintiff undertook his military service. The plaintiff’s compulsory military service had been the subject of a much earlier deferment. It appears the plaintiff was able to whittle the commitment down to 21 days from what he thought might have been in the order of 18 months. The plaintiff said his three weeks of military service in Turkey did not cause any more injury to his shoulder or to his spine.[200] The plaintiff’s military service was not any better explored in evidence.
[200] T44, L28 – T45, L1.
109The plaintiff remained in Turkey for a period of approximately two years.
110Whereas I am satisfied of an absence of medical evidence to support the plaintiff’s claim of ongoing back pain and complaints of the same to Dr McCann prior to departing for Turkey in 2011, other than by reference to those passing references I have mentioned, by contrast, there is strong evidence that the plaintiff’s low back pain became problematic whilst he was in Turkey from 2011 to 2013. Its condition was sufficient to have prompted two MRI scans being performed in Turkey on 12 December 2012[201] and on 14 May 2013, where diffused bulging, diffused herniation, and central annular fissures were identified.[202]
[201] Exhibit P17, PCB 52.
[202] Exhibit P18, PCB 53.
111Thereafter, and on the plaintiff’s return to Australia, Dr Baglar wrote to the plaintiff’s solicitors observing that the plaintiff was not a regular patient of the clinic but that he had first seen him in mid-September 2013 after he had returned to Australia following two years in Turkey.[203] Dr Baglar said the plaintiff told him that he had an employment injury in 2008 in the form of a right shoulder injury, and he now wanted to “pursue his rights”.
[203] Exhibit P5, PCB 82-84.
112It is tolerably clear in my judgement that the plaintiff’s medical record is wholly inconsistent with him having experienced low back pain weekly or multiple times a week. I am instead satisfied that the plaintiff's low back pain become significant and problematic whilst he was in Turkey between about May 2011 and about September 2013 and since then.
Conclusion
113Ultimately, the plaintiff’s position as it relates to a claim for negligence resulting in a back injury, rests on the general evidence of the plaintiff having worked as a cleaner for many years during which, from about 2001 to 2006, some of his duties from time to time required him to exert more force with his body than other duties with the result that the cause and onset of his low back injury, or the development of it in the form of an aggravation of a pre-existing vulnerable and degenerative spine, on the balance of probabilities, is the result of his employment.
114I am not satisfied that the analysis pressed by Mr Richards adequately addresses the plaintiff’s progression years later, with a worsening of symptoms leading to surgery in 2020. This development occurred in the absence of any work at all, or of heavy or high force work by the plaintiff for a number of the years preceding the significant worsening of his back, which really begins to present in a heightened way from about 2014. Instead, and in my judgement, I am satisfied that it is more probable than not, that the plaintiff experienced an exacerbation of pain from a constitutionally degenerative spine on 1 July 2006. I am satisfied that this exacerbation was minor, and did not rise to a level that caused the plaintiff to require medical attendance or absences from work. I consider that the better view overall is that it is the constitutional degeneration and progressive worsening in the years that followed the cessation of all work in mid-2010 that accounts for the plaintiff’s condition.
115For the reasons expressed, I am not satisfied that the plaintiff has proved that his work duties were a cause of his back condition before the onset of pain he suffered at work on 1 July 2006, or that what he experienced that day, amounted to more than a temporary exacerbation of a congenital degeneration. I find the plaintiff experienced a short-lived minor exacerbation of pain. I am not satisfied that his work duties were a cause of an aggravation, only then for it to return to being asymptomatic, and then to become significantly symptomatic after 2011, at a time when for a number of years the plaintiff had ceased undertaking high force duties and had been leading a sedentary life.
116I am not satisfied that the plaintiff proved on the balance of probabilities that his employment duties up to July 2006 were a cause of injury to his spine, in the sense that the pain he experienced on 1 July 2006 represented an aggravation of the spine caused in negligent circumstances or by breach of duty contrary to regulation.
117It follows, therefore, that I am not satisfied that the plaintiff proved negligence or that breach of regulation by the defendant was a cause of injury to the spine.
The plaintiff’s right shoulder Injury
118The plaintiff’s evidence was that prior to 17 June 2008 he had not experienced trouble with his right shoulder.[204]
[204] T30, L23-24.
119The plaintiff described that on 17 June 2008 he sustained an injury to his right shoulder whilst performing what he said was the last bin run of the day at around 4:45 pm. He identified that the bin he went to empty was a concrete bin that contained a 240-litre bin liner. The plaintiff specifically identified the bin from which he attempted to lift the liner was located outside the Safeway Supermarket entrance of The Glen.[205] He said he proceeded to lift the bin liner out of the concrete bin with his right arm with the aim of depositing it into a large wheelie bin that he transported with him in performing this duty. He estimated the weight of the contents of the liner at approximately 20 kilograms.[206] He said it was heavier than anything he had previously lifted. The contents of the liner was not identified.
[205] T34, L15-18.
[206] T114, L14.
120The plaintiff said that his lifting action was accompanied by an immediate sharp pain in his right shoulder. He continued his work, although he said he struggled to complete his shift.[207] He said that the pain worsened overnight and the next day, 18 June 2008, he attended on Dr McCann to whom he recounted pain to his right shoulder.
[207] T115, L7-8.
121Dr McCann’s note of attendance of 18 June 2008 records, “Pain, restriction of movt R shoulder since yesterday am, no h/o injury. Severely ltd ROM. Tenderness and swelling anterior R shoulder. U/s. Mobic 15mg x 10. Cert 3 days.”[208] Self-evidently, Dr McCann’s note lacks mention of a mechanism of injury of lifting a bin liner and, therefore, is at odds with the plaintiff’s evidence that, “I told him that I lifted a heavy bin liner out of the bin and felt a strong pain, sharp, strong pain on my right shoulder”.[209]
[208] Exhibit P36, PCB 306.
[209] T36, L7-9.
122The reference by Dr McCann to the plaintiff having experienced pain since the previous morning is also at odds with the plaintiff’s account that the injury occurred at work in the late afternoon of the last bin run for the day. In fact, Dr McCann’s note does not refer to an onset of pain having occurred at work. Not surprisingly, the discordance between the plaintiff’s oral evidence and the contents recorded by Dr McCann was a signal submission upon which Ms Britbart, together with other matters, ultimately relied.
123On Thursday, 19 June 2008, the day following his attendance on Dr McCann, and having undergone an ultrasound on 18 June 2008, the plaintiff lodged an incident report with his employer.[210] The incident report included that the plaintiff had sustained a shoulder “tear” as a result of “manual handling”, and it included the plaintiff’s account that:
I was doing the bin run before end of the shift and did not realise it was heavy. I lifted the rubbish bag to place it in the willy (sic) bin I injured my right shoulder and could not move it for a few days.[211]
[210] Exhibit D2, PCB 319.
[211] Exhibit D2, PCB 319.
124Accordingly, whilst Dr McCann’s first note did not refer to the matters the plaintiff came to recount in his testimony, the plaintiff’s incident report two days later did.
125Dr McCann reviewed the plaintiff again on 21 June 2008, that is, four days after the alleged incident and subsequent to the plaintiff’s ultrasound that identified a tear in the right supraspinatus muscle. Dr McCann’s clinical note read in part, “…will claim on w/cover,? injury occurred when lifting bin”.[212]
[212] Exhibit P36, PCB 306.
126Dr McCann did not testify. One cannot speculate as to evidence he may have been able to give concerning the construction of his note of the plaintiff’s initial attendance. Of course the absence of mention in the note of the particulars of injury the plaintiff says he sustained is not positive evidence that the plaintiff did not tell Dr McCann what he says he did, but only that the note is silent on the point. However, an available inference is that the note was silent because the plaintiff did not give the account to Dr McCann he says that he did. The question is whether such an inference has been displaced by other evidence.
Emptying bins generally
127In his evidence-in-chief, the plaintiff described that he usually worked on Level 2 of The Glen. He estimated that between 8 and 10 rubbish bins were located on Level 2 and which number included perhaps up to 3 that were located on the outside and were accessible to the public at night.[213] He said he used 240-litre bin liners for all of the rubbish bins located on Level 2, including the bins that were positioned outside.
288Ms Britbart submitted that, in the event only the plaintiff’s right shoulder injury is found to have been caused by negligence or breach of regulation, nonetheless, I should be satisfied that the plaintiff has retained a capacity for work.
289Ms Britbart referred to the evidence of the following doctors who examined the plaintiff and who considered he retained a capacity for work, albeit not the full duties of a cleaner:
(i)Mr Steele ;[334]
(ii)Mr Kudelka;[335]
(iii)Mr Etherington;[336]
(iv)Dr Slesenger;[337]
(v)Dr Tagkalidis;[338]
(vi)Dr Barton;[339]
(vii)Dr Baynes;[340]
(viii)Mr Dooley.[341]
[334] Exhibit P27.
[335] Exhibit D15.
[336] Exhibit P33.
[337] Exhibit P32.
[338] Exhibit P31.
[339] Exhibit D16.
[340] Exhibit D17.
[341] Exhibits D10 – 13.
290Ms Britbart observed that each of the aforementioned doctors had assessed the plaintiff at the date of examination as presenting with a right shoulder injury, a low back injury, and a psychiatric condition.
291Mr Richards relied on the following medical opinions in support of a finding that the plaintiff has no current work capacity after taking into account all of his complaints of injury caused by or arising in consequence of the alleged negligence or breach of regulation:
Dr Baglar;[342]
Dr Kossmann;[343]
Dr Lewis.[344]
[342] Exhibit P3, PCB 106. T250, L1-2.
[343] Exhibit P35.
[344] Exhibit P11.
292Mr Richards also referred to Dr Dooley whose evidence included that:
from the practical point of view, it would be very difficult for him to be gainfully employed in, you know, certainly in a modern clerical position or in many light physical jobs.[345]
[345] T385, L2-5.
293Mr Richards referred to a letter Mr Steele wrote to Dr McCann dated 4 August 2009, who considered the plaintiff’s “days as a cleaner are obviously numbered and he needs to give serious consideration to finding a different vocation”.[346] Mr Richards argued that this comment by Mr Steele buttressed his argument that the plaintiff had been incapacitated for at least his pre-injury duties prior to his resignation from work with the defendant in June 2010.
[346]Exhibit P27, PCB 75.
294As to the relevance of the plaintiff’s resignation in 2010, Mr Richards submitted that the assertion by the defendant that the plaintiff resigned his employment because he intended to move to Turkey, is inconsistent with the clinical picture, which included that on 6 January 2010, the plaintiff complained to his general practitioner, and his doctor recorded, “increasing pain & restriction of movt. pain into shoulder, neck & back, poor sleep, says struggling with current duties”.
295Mr Richards submitted that the facts better support a finding that the plaintiff faced increasing pressure from the defendant to return to normal work duties following his right shoulder injury. Mr Richards noted that, on 27 May 2010, the plaintiff’s general practitioner recorded that the plaintiff had been “put back on normal duties by the employer” and was having “increasing pain since this occurred 2 weeks ago. Main problem is mopping & changing bins”. The general practitioner’s note also records: “Tender over ant & lat shoulder, abduction 90 degrees only, pain on ext rotation. Cert for continuing restrictions”.[347]
[347] Exhibit P36, PCB 301.
296Mr Richards submitted that it was only after the plaintiff finally surrendered to the combined effects of his back and shoulder injuries that he provided a notice of resignation dated 5 June 2010, with effect from 2 July 2010.[348] In support of an identifiable effect from the right shoulder itself, Mr Richards noted that on 17 June 2010, in the context of the plaintiff’s resignation, the plaintiff’s general practitioner recorded that the plaintiff, “Said he has had enough & shoulder getting worse”.[349]
[348] Exhibit D4, PCB 321.
[349] Exhibit P36, PCB 301.
297Mr Richards submitted that although the resignation notice recorded an offer by the plaintiff to remain employed by the defendant on a casual basis, the defendant did not offer the plaintiff any employment. Mr Richards suggested that, in any event, the plaintiff’s offer would appear to have been counterintuitive to the medical evidence that existed at the time that the plaintiff was having difficulty at work.
Loss of earnings
298Ms Britbart submitted that the plaintiff should not be awarded damages for a loss of income from the date of injury to the right shoulder on 17 June 2008 and up until the date of his resignation, because the plaintiff worked up until then on modified duties from the accepted work injury to the right shoulder, and no loss of earnings should be attributable for this period.
299I agree with Ms Britbart and I accept that the plaintiff suffered no loss of earnings between the date of injury to the right shoulder and his resignation.
300I find that the fact of the plaintiff had a retained capacity to undertake, for example, small light weight processing work from after the date of his resignation as is detailed, for example, in the Nabenet report.[350]
[350] Exhibit D18.
301Ms Britbart also submitted despite the plaintiff suffering separate injuries, there is an absence of medical opinion that the plaintiff lacked a retained work capacity only because of the right shoulder injury. Instead, Ms Britbart argued, the medical evidence that propounds the plaintiff to be lacking a work capacity is dependent on, in combination, the effects of the low back and the right shoulder and psychological sequalae. I agree with Ms Britbart.
302Furthermore, Ms Britbart argued, it was whilst the plaintiff was in Turkey that his low back injury became significant and, thereafter, following on his return to Australia in 2013, it is this malady and condition that should be regarded as the driver of any ongoing loss of earnings and incapacity for employment.
303Ms Britbart relied on both the oral evidence of Mr Kossmann but, particularly, the content of his reports,[351] that what has rendered the plaintiff unemployable is his low back injury. Ms Britbart observed that Mr Kossmann expressed such opinion after having examined the plaintiff's right shoulder. Yet when he came to address the plaintiff’s work capacity, he concluded that the incapacity for performing work is because of the low back.
[351] See, Exhibit P35, PCB 165-166 and 177.
304Ms Britbart addressed the defendant’s position in the event I found the plaintiff had experienced a loss of earnings due only to the right shoulder injury having occurred in negligent circumstances. She submitted that any sum would need to take account of the likelihood that the plaintiff's capacity to work would have been extinguished at some point by the congenital condition of the narrowing of his spine. Ms Britbart submitted that identifying the point that this would have occurred absent the work contribution is difficult, but any reduction by way of allowance should be significant given the condition worsening in the many years since 2006, bearing in mind that the plaintiff had not undertaken any further heavy work or any work at all, including modified or light work, since the middle of 2010. Ms Britbart submitted an allowance “significantly higher than 50 per cent”.[352]
[352] T477.
305Mr Richards submitted that there is no sufficient or persuasive evidentiary basis to find it more probable than not that the plaintiff will return to Turkey in the foreseeable future and, therefore, but for his injuries, the plaintiff could have expected to have worked to the ordinary retirement age of 67 years.
306Mr Richards accepted that no loss of earnings should be awarded for the period of two years the plaintiff was in Turkey.
307In seeking to counter the defendant’s submission of a lack of medical reasoning to enable a finding that could identify the effect of the right shoulder injury alone, impacting the plaintiff’s capacity for work for a period of years prior to any loss of earnings being overtaken by his back condition, Mr Richards referred to a report of Mr Etherington dated 22 October 2014.[353] Mr Etherington obtained a history of back pain but, at the time of the report on examination, wrote, "On talking to Mr Atmis about his symptoms, his main pain is in the right shoulder".[354]
[353] Exhibit P33.
[354]Exhibit P33, PCB 149.
308However, Mr Richards sensibly acknowledged that since 2014 the plaintiff's back pain has worsened to the point that in 2020 he came to surgery and is now beset by what might be compendiously called a failed back surgery syndrome. Mr Richards recognised that it would be unrealistic to contend that the plaintiff presented with any retained capacity to work since perhaps about 2019 because of the back alone. Consequently, Mr Richards accepted that if the back was not implicated by a finding of negligence or breach of statutory duty, it would be difficult to argue for an ongoing work capacity sounding in an award of damages for a future loss of earnings.
309In Sahin v Victorian WorkCover Authority,[355] the Court of Appeal in addressing the methodologies in assessing a loss of earning capacity said:
The assessment of an injured plaintiff’s claim for loss of earning capacity suffered as a result of bodily injury involves questions of fact and degree, and requires estimates and judgments to be made, about matters upon which reasonable minds might differ. More often than not, in assessing an injured plaintiff’s loss of earning capacity, there is no one correct answer. One judge may take a more favourable approach to a party in respect of one issue upon which the assessment falls to be made, but a less favourable approach to the same party on another issue. As was said by the plurality in Husher:
The assessment of damages for loss of future economic capacity involves questions of judgment and estimation. Being an attempt to predict what would have happened, the process can never be exact. The fact that calculations are made by multiplying present values of net income by the expected duration of remaining working life should not obscure that the process is necessarily inexact.[356]
[355] [2017] VSCA 13.
[356] Ibid [37] (citations omitted).
310I am satisfied and accept the defendant’s submission that despite suffering a right shoulder injury the plaintiff exhibited a proved capacity for light work in his employment with the defendant up until the middle of 2010 when he voluntarily resigned his employment.
311I also accept that from that date the defendant’s identified jobs and akin to the light processing work the plaintiff undertook when he first arrived in Australia are of that type which he would have been capable of performing had he not resigned to travel to Turkey and prior to the re-emergence of his back condition while in Turkey when it appears to have become progressively more apparent and from 2014 onwards. Indeed when regard is had to the earnings of a packer or a process worker of $900 gross per week this sum was no less than the wage for a cleaner at the relevant time.
312I am satisfied that between resigning his employment in 2010 and his return to Turkey in 2011 there is no medical basis to find that the plaintiff’s retained work capacity exhibited prior to his resignation dissipated due to the state of his right shoulder.
313I am satisfied that after the plaintiff’s return from Turkey and from 2014 the progressive interference to the plaintiff’s function was overtaken by the worsening of his pre-existing and non-negligent back condition and it because of this that the plaintiff’s earning capacity was extinguished.
314I am not satisfied that a proved past or future loss of earnings caused by the injury to the plaintiff’s right shoulder has been established.
General Damages
315On the question of general damages, Ms Britbart submitted that if the defendant is held liable to compensate the plaintiff for negligence or breach of duty for his right shoulder injury, an award of pain and suffering damages should be modest. Ms Britbart accepted that whilst the plaintiff has undergone surgery for the shoulder, and been in receipt of some medication, there is an insufficiency of evidence of consequences experienced by the plaintiff which would justify a considerable award of damages for pain and suffering.
316Ms Britbart referred to the plaintiff’s evidence that he had, for instance, already ceased his sporting activities prior to his shoulder injury,[357] which was explicable by reason of his family situation including that after his first child was born in 2006 he was required to look after her while his wife worked weekends.[358] These adaptations and the relinquishment of the same would more likely than not been temporary due to family dynamics and I am satisfied I may pay some regard to the contribution of the right shoulder injury to their loss although ultimately they would have been overtaken by the plaintiff’s worsening back.
[357] T154, L4.
[358] T153.
317Ms Britbart recognised that the plaintiff’s evidence is that he has been upset and distressed at the dislocation of his family and their return to Turkey.[359] Dr Lewis considered that this factor played a significant part in the plaintiff’s ongoing psychiatric condition.[360] Ms Britbart pointed out that although Dr Lewis identified that the marital breakdown had occurred in the context of a period of years of the plaintiff’s increasing disability, and was thus connected to his work injury, the plaintiff’s evidence was that his wife’s decision to remain in Turkey was taken in 2009, when he was still working. Accordingly, Ms Britbart submitted, any psychiatric reaction to the isolation and loneliness associated with his family breakdown should not be compensable.
[359] T151, L26.
[360] T266.
318Mr Richards referred to the diagnosis in consequence of the defendant’s negligence and breach of duty as had been identified by Dr Tina Thomas, consultant psychiatrist, dated 4 October 2021:[361]
(i)persistent postsurgical pain after decompression laminectomy at L2 to L5 in 2020, with intermittent residual right neuropathic pain and constant dull back pain, worse on standing and walking;
(ii)right rotator cuff injury at work in 2007 followed by surgical repair in 2009, complicated by adhesive capsulitis, with ongoing pain;
(iii)ongoing psychosocial stressors, depression and anxiety;
(iv)fear-avoidance behaviour resulting in deconditioning in all muscle groups;
(v)chronic suicidal ideation which has protective factors such as his children;
(vi)opiate dependency since surgery, with excessive smoking of cigarettes; and
(vii)poor sleep.
[361] Exhibit P29, PCB 128.
319Mr Richards submitted that the evidence of Dr Lewis and Dr White is that what is perpetuating the plaintiff’s psychiatric condition is his ongoing chronic pain from his injuries.
320Mr Richards argued that Dr White's third report prepared for the defendant’s solicitors and dated 25 May 2019[362] is one that the plaintiff’s psychiatric condition was secondary to chronic pain and disability. Having been asked his opinion whether the plaintiff’s employment was materially contributing to a psychiatric condition, Dr White said:
The condition is again reported by Mr Atmis to be secondary to chronic pain and disability, and therefore employment has materially contributed to his psychiatric condition on the totality of the history available to this examiner. Non-employment factors, particularly those which Mr Atmis states are a result of his chronic pain, disability, and subsequent impacts upon his marriage and family, appear to be sustaining factors with regard to the ongoing depression.[363]
[362] Exhibit P37.
[363]Exhibit P37, DCB 143.
321Mr Richards argued that on the basis of a finding that both the shoulder and the back injury had occurred because of the employer's negligence and breach of statutory duty, that a fair and reasonable sum by way of an award of general damages would be $375,000. However, in the event that only the right shoulder was found to have been caused by the defendant’s conduct, then an appropriate amount by way of an award for general damages inclusive of a psychiatric reaction would be $250,000.
322Ms Britbart submitted that any psychiatric reaction to the plaintiff’s worsening but non-negligent or wrongfully caused low back condition should be excluded from an assessment of general damages. Ms Britbart referred to the evidence of Dr Lewis and also of Dr Tina Thomas, and how both of them received, it would appear, histories from the plaintiff that his marriage breakdown came about as a result of the disability associated with his right shoulder injury. However, Ms Britbart submitted that the plaintiff’s evidence was that by late 2009 his wife had decided to remain in Turkey in order to obtain help from family with the children. At this time the plaintiff was still working. Ms Britbart submitted that the plaintiff’s own account and chronology is on its face at odds with Dr Lewis who recorded that it was after years of ongoing disability in 2012 that the plaintiff’s wife finally left him.
General damages - analysis and findings
323In my judgement there is no question but that the plaintiff has experienced pain and suffering of some moment together with some emotional or psychological upset, some of the latter of which I am satisfied is capable of being attributed as secondary to his right shoulder condition as distinct from his mental state contributed to by his degenerative back and domestic personal upheavals. The fact that his wife and daughters left the country, but also that the plaintiff’s father with whom he was living is no longer residing in Australia, with the result that the plaintiff is for all practical purposes alone, are significant considerations but very largely unrelated to the defendant’s liability to the plaintiff in consequence of the right shoulder injury.
324I am not satisfied on the evidence that the state of the plaintiff’s marriage and his social isolation can be considerably attributed to the effects on him of the disability or restriction caused by the right shoulder injury having occurred in negligent circumstances. It is more probable that the plaintiff’s emotional response has been due more significantly to a reaction to his worsening low back condition over the years and for which he ultimately came to surgery in 2020. I am satisfied that the plaintiff’s emotional reaction caused by his right shoulder injury when assessed against these other stressors, is considerably less, but I have made some allowance for the same in my assessment of my award of general damages.
325I am satisfied that the plaintiff has suffered effects of some significance as a result of the defendant’s negligence. He has and continues to experience pain associated with his right shoulder injury. He has undergone a surgical procedure. The likely pain and some limitations to the function of the right shoulder are, in all, probability permanent. Overall, in my judgement, and having taken into account these other effects on the plaintiff, I regard it as fair and reasonable to assess the plaintiff’s general damages for pain and suffering and loss of enjoyment of life in the sum of $230,000.
A word about credit
326I have resolved to address the issue of the plaintiff’s credit at the end of my reasons because despite the defendant’s submissions, I am satisfied the plaintiff’s credit was not undermined to such an extent, and on matters of sufficient import, to have disturbed the critical primary findings I have made. However, this is not to suggest that I did not have reason to question the reliability of some of the plaintiff’s evidence. In deference to the submissions advanced by Ms Britbart, it is appropriate that I explain my assessment of the plaintiff’s credibility in light of the defendant’s criticisms of him.
327Ms Britbart urged me to find that the plaintiff was an unreliable witness because his evidence was characterised by inaccuracies, inconsistencies, lack of recall in respect of crucial matters, and was implausible in many respects. Ms Britbart relied on the following matters as evidence of the plaintiff’s unfavourable credit.
328The plaintiff said that at no stage was he provided by the defendant with any induction, employee/safety handbook, nor any safety instructions about how to do his work.[364] However, Ms Britbart pointed to what she described as a series of admissions and concession by the plaintiff that should call into dispute his truthfulness.
[364] T25, L13 -18.
329For example, in cross-examination, the plaintiff agreed that he was told he should not put his hand underneath a bin liner when lifting it.[365] He also agreed he was told that he should not push rubbish inside bins with his bare hands.[366] He agreed he was instructed not to let the bins get more than half to three-quarters full.[367] He accepted he knew that if something was too heavy to lift cleaners should call for help.[368] He said he knew about the correct way to stand when mopping,[369] and that buckets should not be filled more than half way because that made them too heavy.[370]
[365] T54, L13-16.
[366] T54, L22-23.
[367] T60, L14-16.
[368] T77, L14-16.
[369] T96, L30 – T97, L1.
[370] T97, L17-18.
330He acknowledged that he was a supervisor at Victoria Gardens in 2006 and at The Glen on Saturdays, possibly from before 2003,[371] and that he was in charge of other employees.[372] He accepted that part of his role was the occupational health and safety of the employees.[373] An aspect of his role was to make sure the cleaners were doing their job safely and in accordance with the defendant’s procedures.[374] He agreed that if he saw a cleaner doing something unsafe he would stop them and tell them to do it safely.[375] He agreed that in order to advise others regarding safety he needed an understanding of what was safe and what was unsafe.[376] He accepted that it was important to make sure the cleaners were not lifting anything too heavy.[377]
[371] T76, L1-6.
[372] T67, L5-6.
[373] T71, L2-4.
[374] T68, L11-13.
[375] T69, L20-22.
[376] T74, L5-7.
[377] T77, L11-13.
331I think the admissions by the plaintiff are reconcilable with his evidence. The plaintiff’s answers under cross-examination do not contradict his testimony that he was not provided by the defendant with an induction, or the employee/safety handbook. Nonetheless, his acceptance that he had been told a number of things to do with safety, do contradict his general denial that he not been provided instructions about how to do his work safely. However, despite having been provided some instructions, I am very much satisfied that they seem to have been learned progressively throughout the course of his employment and not imparted as a body of knowledge or learning introduced at the commencement of his employment as part of a program of safety. In my view, the plaintiff’s acknowledgement of these disparate pieces of learning he gained at various times tells against him having intended to proffer false evidence. Moreover, they do not upset my finding of a lack of reasonable care or compliance with instruction or training in the assessment and steps to apply in the emptying of heavy bin liners. I am not satisfied that I should reason from the general to the specific and, by doing so, reject the plaintiff’s primary evidence about the lack of any training in how to empty heavy 240 litre bin liners prior to suffering his injury on 17 June 2008.
332Ms Britbart pointed to the plaintiff having initially said in his evidence that he had not done any course of study since he came to Australia,[378] but that he later agreed that he had undertaken a security course[379] and an English course.[380] Ms Britbart contended that the oversights should not be considered as likely to be related to poor memory or as being inadvertent. The English course appears to have been of some months duration and perhaps three days a week. On the other hand, when the plaintiff was asked for a second time if he was sure he had not done an English course when he arrived in Australia, he corrected himself and acknowledged that he had. When the plaintiff was specifically asked if he had studied English, as opposed to having studied, he accepted he had, and I am inclined to regard the varied answer as more probably due to a literal response by him to questions as opposed to untruthfulness. As far as the security course is concerned, it seems to me the plaintiff addressed it in line with his account that it was a course he was directed to attend as part of his mutual obligations for receipt of Centrelink payments after his employment with the defendant ceased.[381]
[378] T47, L14-15.
[379] T47, L16-17.
[380] T49, L23-25.
[381] T48, L20-21.
333I do not accept the absolutism implicit in Ms Britbart’s submission that the plaintiff having agreed that he was given an induction by his supervisor, Mr Spur, in late 2006 or early 2007,[382] to be incompatible with his evidence that he had not undertaking an induction but merely signed a document declaring that he did.[383] The plaintiff agreed that he signed the document[384] by which it was declared that he had received an induction in respect of the Workplace Health and Safety Handbook, but he also maintained that he did not receive an induction and did not receive a copy of the handbook. It is plain enough to me, that the plaintiff’s answer that he signed it was because in truth he had but not as an admission that he received the training.
[382] T83, L26.
[383] T84, L14-18.
[384] Exhibit D1, DCB 512.
334Ms Britbart made a series of submissions concerning the plaintiff’s honesty as it pertains to his account of his experience of pain. The plaintiff maintained that he had regular low back pain from mid-2006 to mid-2008, but he could not recall whether he told his doctor about it during that period.[385] However, in cross-examination, he insisted that he did complain to Dr McCann about low back pain during that period,[386] but that Dr McCann just had not written it down,[387] and instead had just given him a piece of paper with the name of medications to take.[388] Ms Britbart argued that the plaintiff’s evidence is not consistent with Dr McCann’s note on 11 June 2008 noting that, on examination, the plaintiff’s spine was “OK”.[389]
[385] T33, L21 – T34 L7
[386] T105, L4-5.
[387] T106, L7-9 and L21-23.
[388] T104, L30– T105, L1.
[389] Exhibit P36, PCB 306.
335When elsewhere in these reasons I addressed the plaintiff’s back and the extent of evidence regarding its condition and progress, so far as its cause of onset and trajectory could be considered consistent with the plaintiff’s claim in negligence and/or breach of duty, I concluded that the plaintiff’s account was inconsistent with what I would have expected had he in fact been experiencing pain to the extent and with the regularity claimed. I am satisfied that the plaintiff’s account was exaggerated and, in that sense, untrue, but I believe it would be wrong to aggregate this tranche of the plaintiff’s evidence as an exemplar such that in all instances where there is a conflict in or dispute about his evidence, it should be assessed unfavourably to him and as untruthful or undoing the primary findings of fact I have reached as it concerns his right shoulder injury.
336Ms Britbart referred to the contested evidence as it pertains to the plaintiff’s letter of resignation.[390] The plaintiff said the letter was typed by Mr Coehlo.[391] Mr Coehlo denied that he typed the letter.[392] Despite his denial, the plaintiff said that he did not have access to a computer at home to produce the letter.
[390] Exhibit D4, PCB 321.
[391] T39, L5-10.
[392] T298, L19.
337Ms Britbart submitted that Mr Coehlo gave clear evidence that he did not type the letter, and that one needs only to look at the letter itself to confirm the unlikely evidence given by the plaintiff that Mr Coehlo had typed it for him.[393] Contrary to Ms Britbart’s submission, I do not agree, that because the letter commenced with "To whom it my concern", and continued with "I, Serdar Atmis, hereby tender my resignation from my full-time position effective from Friday 2nd July 2010, but I would like to stay as a casual base"[394], it is more consistent than not with a non-native English speaker having composed the letter as opposed to a contract manager in Mr Coehlo's position. It is equally consistent with a lack of care in construction as anything else.
[393] T424.
[394] Exhibit D4, PCB 321.
338Mr Coehlo said that the offer of interest to be a casual was not an option and so, Ms Britbart contended, would tell against him as its author. On the other hand, as I raised with Ms Britbart, the closing of the letter is more consistent with someone more au fait with the English language than the plaintiff. Although, as Ms Britbart made mention, the plaintiff had undertaken an English course on his arrival in Australia, I am inclined to the view that the letter may have been a product of the input of both the plaintiff and Mr Coehlo.
339Ms Britbart submitted that I should be satisfied that despite the plaintiff denying that he resigned in order to go to Turkey to try to repair his marriage, I should be satisfied that this was untrue evidence and that the plaintiff did not resign his employment due to back, neck or shoulder pain. He was selling his furniture and other household items and had placed a printed advertising notice on the staff noticeboard before ceasing work in 2010.[395]
[395] T296, L23-31 and T339, L24-27.
340Ms Knight said that upon her return from maternity leave, the plaintiff had already tended his resignation. She said that he told her he resigned because he wanted to go to Turkey to work on his marriage because his wife was refusing to come back to Australia.[396] Ms Britbart also submitted that in January 2010 the plaintiff told Dr McCann that his wife was not returning from Turkey, that he would give it until the middle of the year to see what she decides, and that he would then “give it a go back home”, because he could not overcome the lack of family support.[397]
[396] T339, L19-23.
[397] Exhibit P36, PCB 302.
341I accept that the plaintiff resigned his employment because it was his intention to go to Turkey and see if he could persuade his wife to return to Australia. This finding, however, does not set aside the fact that the plaintiff’s right shoulder injury occurred in the negligent circumstances I have identified. It does, however, reinforce my judgement that had the plaintiff not done so, he would have been able to retain his employment or to have found employment in the type of no less remunerative employment despite the right shoulder condition.
Conclusion
342For the reasons expressed, and having taken account of other effects on the plaintiff:
1.the plaintiff’s damages are to be assessed at $230,000.
2.there was contributory negligence on the part of the plaintiff.
3.the plaintiff’s damages are to be reduced by 10% on account of his contributory negligence.
4.the plaintiff is entitled to judgement in the sum of $207,000.
343I direct that within seven days of the publication of these reasons the parties provided a minute of order to give effect to the same and in the absence of agreement, I will list the matter for mention.
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