Baker v Longwarry Food Park Pty Ltd; Baker v Oz Staff Career Services Pty Ltd
[2020] VCC 1966
•18 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-06109
| JARRED BAKER | Plaintiff |
| v | |
| LONGWARRY FOOD PARK PTY LTD | Defendant |
-AND-
Case No. CI-19-01704
| JARRED BAKER | Plaintiff |
| v | |
| OZ STAFF CAREER SERVICES PTY LTD (ACN 147 550 865) | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 October 2019 (Longwarry Food Park Pty Ltd and Oz Staff Career Services Pty Ltd to file and serve written submissions in this matter by close of business on 22 October 2019 and the plaintiff to file and serve written submissions on each of the defendants by close of business on 29 October 2019) | |
DATE OF JUDGMENT: | 18 December 2020 | |
CASE MAY BE CITED AS: | Baker v Longwarry Food Park Pty Ltd; Baker v Oz Staff Career Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1966 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – bilateral carpal tunnel syndrome – paragraph (a) of the definition of “serious injury” – leave sought to bring proceedings for pain and suffering damages only against both defendants – claim ultimately limited to right arm – gradual process type injury – plaintiff doing same type of work at same place over a period of time but has different employers
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Petkovski v Galletti [1994] 1 VR 436; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: In relation to Origination Motion No. CI-17-06109, being Baker v Longwarry Food Park Pty Ltd, pursuant to s335(d) of the Workplace Injury Rehabilitation and Compensation Act 2013, the Court grants leave to the plaintiff to bring common law proceedings against Longwarry Food Park Pty Ltd for pain and suffering damages.
In relation to Originating Motion No. CI-19-01704, being Baker v Oz Staff Career Services Pty Ltd, the application is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | All States Legal Co Pty Ltd |
| For the Defendant Longwarry Food Park Pty Ltd | Mr B McKenzie | Russell Kennedy |
| For the Defendant Oz Staff Career Services Pty Ltd | Mr J Batten | IDP Lawyers Pty Ltd |
HIS HONOUR:
1 By way of two Originating Motions, Mr Jarred Baker (“the plaintiff”) seeks leave pursuant to s335(2)(d) of the Workplace Industry Rehabilitation and Compensation Act 2013 (as amended) (“the Act”) to bring common law proceedings for bilateral carpal tunnel syndrome[1] (“the injury”) said to have occurred by way of gradual process during the course of his employments with Longwarry Food Park Pty Ltd (“Longwarry Food Park”), the defendant in Case No CI-17-06109, and Oz Staff Career Services Pty Ltd (“Oz Staff”), the defendant in Case No CI-19-01704.
[1]Ultimately, those acting for the plaintiff only relied on the right arm carpal tunnel syndrome. See Transcript (“T”) 70, Line (“L”) 26 ꟷT71, L19
2 The plaintiff seeks leave to bring proceedings for “pain and suffering” damages only within the meaning of s325(1) of the Act in respect of such injury. The plaintiff was the only witness to give evidence and be cross-examined. The plaintiff and the defendant, Longwarry Food Park, tendered a number of documents.[2]
[2]Refer to Annexure “A”
Relevant legal principles
3 The Court must not give leave unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s325(1) of the Act.[3]
[3]See 335(5)(a) of the Act
4 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act. That paragraph reads:
“‘serious injury’ means―
(a)permanent serious impairment or loss of a body function.”
5 The part of the body said to be impaired for the purposes of paragraph (a) is the right arm.
6 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)the “injury” suffered by him arose out of, or in the course of or due to the nature of his employment with the defendants on or after 1 July 2014;[4]
[4]See s5 of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
(b)the “injury” and the resulting impairment under paragraph (a) must be “permanent”; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
(c)the “consequences” to the plaintiff of the injury in relation to “pain and suffering” must be “serious”; that is:
“… when judged by comparison with other cases in the range of possible impairments … as the case may be … [can be] fairly described as being more than significant or marked and as being at least very considerable.”[6]
This is sometimes referred to as the “narrative test”.
[5]See Barwon Spinners (op cit) at paragraph [33]
[6]See s325(2)(b) of the Act
7 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of the “injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purposes of the disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury”;[7]
(b)must make the assessment of “serious injury” at the time the application is heard (unless s348 or s358 of the Act applies);[8]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application.[9]
[7]See s325(2)(h) of the Act
[8]See s325(2)(j) of the Act
[9]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[36]
The issues
8 It was common ground that the plaintiff was employed by Oz Staff, a labour hire agency, from January 2014 to 8 November 2014. During that time, Oz Staff contracted with Longwarry Food Park to provide the services of the plaintiff to perform work for Longwarry Food Park at the premises of Longwarry Food Park.
9 From 9 November 2014, the plaintiff commenced “direct” employment with Longwarry Food Park, but although not completely clear, it would appear that Longwarry Food Park, subsequently by one means or another, became Parmalot Australia Pty Ltd – probably on or about 1 October 2015.
10 At all material times, the plaintiff performed labouring work at the premises of Longwarry Food Park, situated at 31-41 McKay Street, Longwarry, in Victoria. Such work continued until 1 October 2015, when his employment came to an end. Because of the “employment” situation, the parties, sensibly in my view, sought to have the matters heard at the same time.
11 When queried as to what were the issues, counsel for Longwarry Food Park informed the Court that a claim for compensation, dated 8 December 2015, had been made against his client for bilateral carpal tunnel syndrome, and that claim had been accepted, with consequential weekly payments and medical and like expenses. There was a termination of benefits on the basis that the injury suffered by the plaintiff was no longer related to the compensable injury.
12 Counsel informed the Court that late Professor Vernon Marshall was of the opinion that a bilateral carpal tunnel injury had been suffered by the worker, and that was the basis of the claim being accepted. However, an occupational physician, Dr Majid Rahgozar, was relied on for the termination of payments. In particular, the Court was referred to page 6 of a report of Dr Rahgozar dated 13 November 2016,[10] whereat he states:
“…, employment with Longwarry Food Park is no longer materially contributing to Mr Baker’s condition and the residual paraesthesia in the distribution of the right and left hand is likely to resolve over the next few months.”[11]
[10]See exhibit C at paragraph 4, page 12 DCB (“DCB”)
[11]See exhibit C at page 12 DCB
13 When queried as to whether Dr Rahgozar initially accepted that there was employment causation, the Court was informed that he did and that, notwithstanding that the plaintiff has had, apparently, left and right carpal tunnel syndrome surgery and still has some residual symptoms, they are no longer related. I was informed by counsel he could not take “it past what was in the report”.
14 Furthermore, Longwarry Food Park relied on a report from Dr Slesenger,[12] who considered that the condition had “also resolved”. However, apparently, Dr Slesenger accepted that the initial condition of carpal tunnel syndrome could have been contributed to by the employment.
[12]See report dated 18 December 2017, exhibit C, at pages 29-32 DCB
15 However, somewhat remarkably, the Court was then informed that there was a further report from the plastic surgeon, Mr Murray Stapleton,[13] who was of the opinion that employment had never been a contributing factor to the carpal tunnel condition. Furthermore, reference was made to a report from a further occupational physician, Dr Catherine Bones,[14] who seemingly ultimately states that she cannot say as to whether or not there was an employment relationship on the material available to her.
[13]See report dated 12 March 2019, exhibit C, at pages 33-36 DCB
[14]See report dated 24 April 2019, exhibit C, at paragraph [6], page 44 DCB
16 Counsel for Longwarry Food Park then submitted “the primary position” of his client, based on Mr Stapleton, was that there was never a work-related condition, and the so‑called “secondary position” of his client was that, if there was such a work-related condition, such condition was no longer related to injuries suffered during the plaintiff’s employment.
17 When the Court enquired as to how one deals with complaints of symptoms in his wrists – particularly on the right side – do such symptoms either have to be seen as fabricated or are they of some other aetiological basis, it was put then that the plaintiff would be exaggerating.
18 Ultimately, the position of Longwarry Food Park was stated as follows:
“So the defendant’s position is that based on Mr Stapleton, there was never an injury. Alternatively, Dr Bones, Dr Rahgozar and Slesenger, any condition is no longer related to employment, and finally, in any event the defendant says whatever the consequences are, they don’t meet the threshold.”[15]
[15]T27, L1-7
19 When queried what were the issues, counsel for Oz Staff stated, and I quote:
“Your Honour, there are difficulties, if we could use Your Honour’s term, general principles. If we could go back to first base. I’m a separate employer and this is a gateway application as we understand it principally relying on: ‘The power provided in section 325 or 326 which refers to if there is an entitlement to compensation or may be an entitlement to compensation, a worker of his dependence may bring an action for damages.’
I have heard my learned friend’s opening. The only injury he seeks to rely on is gradual process which is from my understanding, and I’m not speaking from my specific authority of recent times, is a gradual process injury sanctioned by the statutory benefits arm of the Accident Compensation Act, its predecessors and the current WorkCover Act.
It begs the question whether this is an application at common law using common law principles as to injury, or is it an application under worker’s compensation where my learned friend is seeking to have Your Honour find that the injury in this case is gradual process which we understand it crystallised at some point in time, he said November 2015. What he hasn’t said in this case in opening is that there is an injury that he relies on against my client who is a separate and discrete legal entity. You don’t have to worry who is behind it, it is a separate employer and rightly, luckily, fairly or unfairly, this plaintiff has two separate and distinct employers and seeks as we understand it, Your Honour’s leave to bring proceedings in tort for damages against both employers.
Now, if that’s not the case and all he’s seeking is Your Honour’s leave as he’s opened, for gradual process against the last employer in time, then we shouldn’t be here, no question of whether we should cross-examine or the like. We have not been served with a claim for compensation, we do not admit an entitlement to compensation for the period of employment and what hasn’t been pointed out to Your Honour, and we would accept Mr Ireland’s opinion because he is a surgeon of some considerable standing, he says at p.65 of the plaintiff’s court book, ‘The more or less spontaneous onset of carpal tunnel syndrome symptoms in a young man indicates a congenital anthro[po]metric predisposition to develop carpal tunnel syndrome. However, as stated above, in my opinion the work has been a significant contributing factor.’
What he doesn’t say is work up until October 2014 in the period before, has been a significant contributing factor nor, listening to my learned friend’s opening, does the plaintiff, and the problem, Your Honour, that morphs into Grech,[16] the Filipowicz case[17] which I was in at first instance in front of Brother Judge Misso, the problem as the Court of Appeal held, Mandie JA, leading judgment Kyrou J, effectively found that the judge was misled in respect to submissions, and that Grech was important and not the case of Petkovski v Galletti.
[16]See Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 (“Grech”)
[17]See AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
We say Filipowicz is of relevance in this case because whether or not it is a gradual process over time, which is probably is, there are two separate and distinct employers and the only compensable injury is against the second employer.
HIS HONOUR:
And by that do you distinguish that the only demarcation in Grech was just the date, the employment’s the same, just the date?
MR BATTEN:
Yes.
HIS HONOUR:
It goes from, what, 30 November 19 whatever it is.
MR BATTEN:
The black hole and after, Your Honour, and the period after wasn’t - sorry to interrupt.
HIS HONOUR:
Just so I understand, I’m right in saying Grech was the same employment, the big issue was black hole to non black hole, and as Mr justice Ashley talked about compensable injury et cetera, he could use it, whereas the point of distinction you’re putting to me is this is two employers.
I want to read ultimately Filipowicz, and indeed I thought Guppy[18] had something to say about this too, I might be wrong.
[18]See Guppy v Victorian WorkCover Authority [2010] VSCA 164
MR BATTEN:
I think it does, Your Honour, but the principle’s the same, the plaintiff brings two applications and brings us to Your Honour’s court, and is he or is he not seeking from Your Honour leave against my client for the right to sue. If he does, then Filipowicz applies and he has to show a separate and discrete injury.
HIS HONOUR:
Yes, I understand.
MR BATTEN:
At common law, and that’s it in a nutshell. We have had no claim, we have arranged no medicals, and we say this plaintiff has the onus of proving, if he wants Your Honour - - -
HIS HONOUR:
Yes, a compensable injury, yes, I understand that. Thank you.
Mr Chancellor, just on that, there is two originating motions, what do you say would be your most successful result, would be what, a finding - - -
MR CHANCELLOR:
Leave against both.
HIS HONOUR:
So for me to find leave against both I would have to be satisfied as to the requisite aspect, would I not?
MR CHANCELLOR:
Well, yes, and then in my submission that would be that there is a material contribution to the end result as a result of the employment with both Mr Batten’s client and Mr McKenzie’s client.
HIS HONOUR:
So it is a Grech argument?
MR CHANCELLOR:
Yes.
HIS HONOUR:
So you say what, at the end of that if you exercise your common law right assuming you were successful, exercising your common law rights you would issue against these two employers?
MR CHANCELLOR:
Yes, there is a proposed statement of claim, Your Honour, at p.11 of the plaintiff’s court book which outlines how it would be put, in other words both of them are in, both of them have contributed to the injury and both of them have been negligent.
HIS HONOUR:
Well, I will look at that later.
MR CHANCELLOR:
Can I just add this, that the reason, or one of the reasons, Mr McKenzie’s client when served with their originating motion, contacted my instructors and said that there are two employments, the symptoms started with the first employer, Oz Staff, and therefore there should be a second application lodged against Oz Staff.
HIS HONOUR:
I understand that, but factually there may have been symptoms, I don’t know yet, but assume there was.
MR CHANCELLOR:
Well, the evidence will be there were, yes.
HIS HONOUR:
So what you’re really saying to me, this turns a lot on what you say is the application of Grech, what you’re saying is - - -
MR CHANCELLOR:
And section 5.[19]
[19]The reference is to s5 of the Act, which reads:
(1) Except as otherwise expressly provided in this Act, this Act applies to the entitlement of a worker to compensation under this Act in respect of—
(a) an injury to the worker arising out of, or in the course of, or due to the nature of, employment on or after 1 July 2014; and
(b) an injury arising—
(i) out of, or in the course of, or due to the nature of, employment; and
(ii) by way of gradual process over a period beginning before, and continuing on or after 1 July 2014—
but does not apply to or in relation to an injury arising out of, or in the course of, or due to the nature of, employment solely before 1 July 2014.
(2) If a worker suffers an injury that—
(a) arises out of, or in the course of, or due to the nature of, employment; and
(b) occurs by way of gradual process over a period beginning on or after 20 October 1999 and continuing on or after 1 July 2014—
the worker may rely on any part of the injury that occurred before 1 July 2014 for the purposes of establishing that the injury constitutes a serious injury for the purposes of Division 2 of Part 7.
(3) Subsection (2) does not apply to any part of the injury that was the subject of an application made under section 134AB(4) of the Accident Compensation Act 1985.
(4) Division 5 of Part 7 applies in relation to an injury, disease or industrial deafness caused to or suffered by a worker before, on or after 1 July 2014 that has arisen out of, or in the course of, or due to the nature of, any employment in which the worker was employed at any time.
HIS HONOUR:
Well, yes, perhaps I will have to look at that in detail. So at day’s end applying the Grech type principles, there is one impairment contributed to by two employment aspects.
MR CHANCELLOR:
Yes, or employments.
HIS HONOUR:
One impairment, one lot of consequences and you say those consequences - well, assuming they satisfy the narrative test, you get home. You then would issue against both these employers, you say?
MR CHANCELLOR:
Yes.
HIS HONOUR:
And claim damages accordingly?
MR CHANCELLOR:
Yes.”[20]
[20]T30, L12 – T34, L31
The evidence of the Plaintiff
20The plaintiff relies on three affidavits sworn by him respectively on 10 April 2017,[21] 11 December 2018[22] and on 26 September 2019.[23] The affidavit sworn by the plaintiff on 10 April 2017 accompanied his application for serious injury against Longwarry Food Park and the affidavit sworn by the plaintiff on 11 December 2018 accompanied his application for serious injury against Oz Staff.
[21]See exhibit 3 at pages 36-41 Plaintiff’s Court Book (“PCB”)
[22]See exhibit 3 at pages 30-35 PCB
[23]See exhibit 3 at pages 42-48 PCB
21I do note that the Form A application made by the plaintiff against Longwarry Food Park Pty Ltd named the “employer” of the plaintiff to be Parmalat Australia Pty Ltd, which, as I have already recorded, seemingly “took over” Longwarry Food Park Pty Ltd.[24]
[24]See Form A at page 19-23 PCB
22 The affidavits sworn by the plaintiff on 10 April 2017 and 11 December 2018 have much common ground, notwithstanding they are referrable to two separate employments – Oz Staff and Longwarry Food Park. The affidavit sworn by the plaintiff on 26 September 2019 again repeats much of the material in the two earlier affidavits, but does expand on various matters.
23 I set out the evidence of the plaintiff based on all three affidavits with reference to any particular affidavit if it be relevant as to the timing of a complaint or something similar.
24 When sworn in, the plaintiff confirmed that he was living in Warragul and at that time, was receiving Newstart payments.
25 The plaintiff gave evidence that he had read his affidavits recently and wished to make a small change to the affidavit sworn on 26 September 2019. At paragraph 23, he states that: “My restrictions and consequences remain as outlined in paragraphs 2” and he then says “to 30 and 32 to 42” of the previous affidavit – it should read “26 to 30” not “2 to 30”.
26 The plaintiff is a forty‑year-old single man who has a daughter approximately twenty years of age. Whereas the plaintiff lives with his mother, his daughter resides with his sister, who is a primary school teacher, in Moe. The plaintiff was born in Australia and educated in Victoria, where he attended school, completing Year 12 at Monbulk Secondary College in 1998.
27 The plaintiff is naturally right handed.
28 After leaving school, he was employed in a number of different nurseries between 1998 and 2007. He was also employed variously as a truck driver, upholsterer’s assistant, cook and horticultural assistant.
29 The plaintiff was employed by M & K Cochrane Pty Ltd, a transport company, where he was working as a driver delivering dairy products. During that employment, he suffered a work injury, although he recovered from that injury and continued working as a driver for National Foods. He was out of work for a year or so around 2008 and then worked for Perosami Pty Ltd, a freight and transport company, delivering The Age.
30 In early 2010, the plaintiff had had significant problems with substance abuse, both alcohol and drugs, and lost his drivers licence for about two years. He was commenced on a Subutex program to get him off drugs and although commencing with a high dosage of Subutex, this has generally reduced over the years.
31 In or about 2012, the plaintiff gained further qualifications by completing a Certificate III in warehousing, a first aid course, an OHS course, a traffic control course, a chemical handling certificate and obtained a forklift licence.
32 The plaintiff also notes that from the age of about ten, he had ridden horses on a regular basis and had a number of falls, resulting in injuries to his hands and arms. He has been advised that his medical records indicate that he had an x-ray on 28 September 2003 which showed a minimally-displaced fracture of the distal radius following a fall from a horse, and had also sought medical treatment in August 2007 following an injury to his right wrist twelve months earlier. The wrist had been knocked shortly prior to that attendance.
33 Again, the plaintiff notes that his medical records indicate that he had x-rays on 28 November 2011 of his left wrist and elbow which showed an undisplaced fracture of the radial head and evidence of a prior fracture of the ulnar styloid.
34 The plaintiff also recalls injuring his right hand in a motor vehicle accident in 2001 and has had a bony protrusion at the top of his right wrist for many years.
35 The plaintiff deposes that his health steadily improved and by January 2014, he was ready to return to work and registered with Oz Staff, a labour-hire service. He describes himself as someone keen to get back to work and get his life back in order.
36 The plaintiff was placed by Oz Staff at the Longwarry Food Park premises commencing on 14 January 2014. As stated, he felt fit and well when he commenced.
37 I refer to paragraphs 9 and 10 of the plaintiff’s affidavit sworn on 26 September 2019, wherein he describes the activities undertaken by him when employed by Oz Staff at the Longwarry Food Park. He states:
“9.I was initially placed in the cool room as a full-time casual shift worker. The work involved repetitive manual handling. I had to lift a pallet off a stack and drag it over to near the conveyor belt. I then had to grip and lift empty crates and place them in front of me. I would then grip 2 litre bottles, generally 2 in each hand, in order to fill the crate. I would then lift the crate and put it onto the pallet. Each pallet would be stacked 5-high of milk crates. The gripping was highly repetitive and placed a lot of stress on my hands, wrists and forearms. I was also required to perform cleaning duties which involved gripping sponges, brushes and thick brooms.
10.As a result of my duties in the cool room I gradually developed a cold numbness in the tips of my fingers and some tightness in my wrists and forearms. We were often short-staffed and working at a very fast pace. When on the afternoon shifts I would also work on the trolley packing machine. I would have to push the trolley into the machine which was meant to automatically load it with the milk. Often the machine wouldn’t work and I would have to assist in hand stacking the trolleys. This placed further stress on my hands, wrists and forearms.”[25]
(My emphasis.)
[25]See affidavit sworn by plaintiff on 26 September 2019 – exhibit 3 at pages 44-45 PCB
38 In or about August 2014, the plaintiff began to develop symptoms in his hands, the right being worse than the left initially. The pain was in his fingertips, and then numbness of the fingertips, around August 2014 when he was working in the cool-room. Such symptoms lasted a couple of days and they went away.
39 The plaintiff became a direct employee of Longwarry Food Park Pty Ltd on 9 November 2014 and initially continued to work in the cool-room but was gradually moved onto the UHT line, where he worked as a machine operator.
40 I refer to part of paragraph 12 of the plaintiff’s third affidavit, wherein he described the duties that he performed:
“… would have to place cardboard boxes into the boxing machine. I would grip as many of the flat boxes as I could fit into my hands and place them into the machine. I had to place caps into the capper and glue into each machine as required. If a fault occurred I would have to stop the machine and take cartons off the line as quickly as possible to prevent the line from backing up. I would generally grip two cartons in each hand. Similarly, if there was an issue with the box stacking machine I would have to hand-stack boxes onto the pallets. I would assist the Filler Operator which involved bringing out barrels weighing 20 to 30 kg on a hand trolley and manually lifting the barrels into a sealed extraction fan unit. I had to check stock and perform a cap seal check which involved taking filled cartons of milk off the line, removing the cap and then screwing the cap back on. I would turn the cartons upside down to check that the glue had sealed and squeeze the carton to check for leaks. At times boxes of cartons would be returned due to faults and I would be involved in unpacking many cartons and tipping them back into a large vat. I would hold two cartons in each hand and bang them on the vat to open them. This all involved repetitive use of my wrists and hands. At times I worked on the powder dryer which involved lifting 25 kilogram bags of milk powder. I worked on cream cheese which involved me in repetitively stacking boxes. I would also return to the cool room from time to time, for example when there were delays in the UHT area, or where they got behind in the cool room area. I also had to perform a lot of cleaning duties. I would scrape glue off the parts using a hand-held paint scraper and scrub the machines using a scourer and a brush. I would scrub the floor using a broom and cleaning chemicals after hosing it off, and use a large squeegee to clear the water. In July 2015 I was able to take a holiday in Cairns where I did some scuba diving.”[26]
(My emphasis.)
[26]See affidavit sworn by plaintiff on 26 September 2019 – exhibit 3 at pages 45-46 PCB
41 The plaintiff deposes that the symptoms in his hands, wrists and forearms gradually worsened and following that, the period where he had to scrub the floors for a few hours caused a significant aggravation in his symptoms. When he woke the next morning, he had bad pains in his hands and could barely pick up a glass to have a drink.
42 The plaintiff mentioned his pain to his supervisor – probably a Mr John Sinclair – and also consulted his general practitioner, Dr Jayasena, at the Mooroolbark Superclinic on 17 November 2015, at which time he had numbness and pain in both hands and wrists extending up into his forearms. He was referred for EMG studies which were performed by Dr Ng on 25 November 2015. He believes that these confirmed right-sided moderate to severe carpal tunnel syndrome and left-sided mild to moderate carpal tunnel syndrome.
43 The plaintiff was able to return to work on suitable duties, although he had to stop work on 1 March 2016 due to the severity of his symptoms. At that time, he was sleeping poorly, waking at night with numbness and pain, and driving aggravated his symptoms. He was also wearing braces on both wrists.
44 The plaintiff was referred to the surgeon, Dr Natalie Zantuck, at the William Angliss Hospital on 19 April 2016. Ultimately, the plaintiff underwent a right carpal tunnel median nerve release on 3 May 2016, after which he returned to work on 9 June 2016 on reduced hours, performing light duties two days a week for four hours and gradually increasing to full-time light duties by late June 2016.
45 The plaintiff again stopped work to undergo left carpal tunnel nerve release surgery on 13 July 2016 and again returned to work on 5 August 2016 working two days a week for four hours doing mostly supervisory work. By late August 2016, he was performing full-time light duties. At that stage, the UHT section was winding down.
46 The plaintiff’s employment was terminated in late December 2016. The plaintiff lodged a WorkCover claim and this was accepted by Longwarry Food Park and he was paid weekly payments until 27 December 2016, when payments were terminated.
47 The plaintiff continued to have significant problems with his right wrist. Dr Ng performed further nerve conduction studies on 30 August 2017, which the plaintiff believed showed persisting mild to moderate median neuropathy in the right hand, but no ongoing issues with the left hand.
48 As at the time of swearing his second affidavit – 11 December 2018 – the plaintiff complained of:
·limited sensation in both his hands, making him prone to dropping things due to this, together with limited grip strength.
·experiencing sharp pains that run up his wrist when he undertakes his carpal tunnel exercises. When he uses his hands for a period of longer than a few minutes he experiences severe pain in his fingers and his lower thumb area.
·he has limited grip strength and he is cautious when using power tools and the like, as he is worried that he may cause harm to himself.
·he continues to have constant tightness and stinging in both hands, and his right hand is worse than his left. The tips of his fingers usually feel cold, and he has trouble using his right hand with day-to-day tasks.
49The plaintiff has been informed he may need further surgery on his right hand, but is unable to fund this, as the medical treatment was terminated by his insurer (which he is presently disputing).
50The plaintiff has difficulty writing and hanging onto a pen, and after a few lines his writing becomes extremely messy. In particular, the plaintiff loves to sketch. He used to be able to draw and sketch very detailed pictures. He described such activity as a “passion of mine”, and something that he undertook on a daily basis as a form of relaxation.
51 The plaintiff notes that his plan over the longer term was to turn his hobby of drawing into a business and become a tattoo artist. He can no longer do those drawings as they are very intricate, and his hands cannot grip onto the pencil.
52 The plaintiff used to enjoy riding a motorbike and would do this once per week; however, he does not feel comfortable about such activity now, due to his reduced grip strength.
53 The plaintiff also used to enjoy doing work on cars and motorbikes as a hobby, and although he has tried to resume such hobby, he finds that he is dropping tools, and the clumsiness that he experiences in his hands prevents him from undertaking works which require finer details such as air-brushing.
54 The plaintiff has a reduced ability to drive long distances due to his grip strength and the lack of confidence that he now experiences in holding a steering wheel for a long period of time.
55 The plaintiff experiences pain in both hands at night, and this can wake him at night, especially if he has tried his hands a lot during the day.
56 The pain feels like it is inside his hands, and is separate and distinct from the numbness and tingling sensation that he experiences in both hands.
57 The plaintiff has reduced grip strength, which affects many aspects of his life. He is limited in the cooking that he can do himself, and has great difficulty lifting up pots and pans.
58 The plaintiff feels he has developed low mood since his employment was terminated, and is not able to engage in any pre-injury hobbies referred to above.
59 The plaintiff deposes that he loved his job, and working has always been important to him. He misses the job and the social interaction he had with that employment.
60 In his final affidavit sworn on 20 September 2019, the plaintiff deposes that he continues to have problems with this right hand as outlined in his earlier affidavits. In particular, he deposes that he is “very restricted” in his ability to draw, paint and sketch, which were his main hobbies. Furthermore, he is unable to work as a tattooist because he cannot use his right hand for more than short periods.
61 At the time of swearing that affidavit, the plaintiff was hoping to obtain work at Bunnings in Warragul or, alternatively, do some driving work if the vehicle had good power steering and he was not required to perform any manual handling.
62 The plaintiff is taking the minimal dose of Subutex and apart from ongoing problems with his right wrist, his health is otherwise “very good”.
The medical evidence relied on by the Plaintiff
63The plaintiff relies on a medical report from his treating general practitioner, Dr Niroshi Jayasena, dated 5 September 2018.[27] Dr Jayasena initially saw the plaintiff on 17 November 2015 and reports that the plaintiff was diagnosed with carpal tunnel syndrome on both hands on 25 November 2015 after undergoing a nerve conduction study by the neurologist, Dr Steven Ng. Dr Jayasena notes that the plaintiff was treated surgically, after which the plaintiff “rehabilitated” and had commenced on light duties with a return to work plan in place.
[27]See exhibit 6 at pages 55-56 PCB
64Dr Jayasena notes that the plaintiff was again referred for a nerve conduction study on 7 July 2017 which was positive on the right side. When seen on 7 July 2017, the plaintiff informed Dr Jayasena that his hands were still numb and the strength of his hands are weaker and that he had difficulties lifting weights, pushing, pulling and fine motor skills in his hands.
65 Dr Jayasena states, in his report dated 5 September 2018, in part, that:
“He has a limitation of going back full time to pre injury duties at this stage as he still show up weakness even post operative which he needs to be F/U with the treating surgeons. -Not aware whether he F/U with th[e] surgical eteam (sic) or not as he does not update me or the clinic neither he attend to clinic regularly.
He is still suitable for a[n] alternate job which impact[s] on his hands minimally.
But detailed functional assessment should be done with the treating Neurologist/ surgeon with regard to this.
CTS in general can restrict persons social, domestic and recreational activities. But it is temporary and treatable.”[28]
[28]See report dated 5 September 2018, exhibit 6 at pages 65-66 PCB
66The plaintiff also relies on the reports from the neurologist, Dr Steven Ng. In a report dated 25 November 2015, Dr Ng concludes there is electrophysiological evidence of moderate-severe right and mild-moderate degree focal median neuropathy of the right wrist with carpal tunnel syndrome.[29]
[29]See exhibit 5 at pages 51-52 PCB
67I also refer to the later report from Dr Ng dated 30 August 2017, wherein he concludes that there is a right mild-moderate degree median neuropathy at the wrist consistent with carpal tunnel syndrome.[30]
[30]See exhibit 5 at pages 53-54 PCB
68The plaintiff also relies on the report of the general surgeon, Ms Natalie Zantuck, dated 27 May 2016.[31] When initially seen by Ms Zantuck, the plaintiff gave a history of performing heavy manual labour, and described a longstanding progressive history of bilateral hand pain and paraesthesia which is worse on the right than the left. In particular, he wakes up in the morning with numbness and this can persist for several hours.
[31]See exhibit 6 at pages 69-70 PCB
69Examination at that time revealed right thenar muscle wasting and weakness on induction of his fingers, whereas examination of the left hand revealed no thenar muscle wasting but some very mild weakness on abduction. Tinel’s sign was positive.
The medico-legal material relied on by the Plaintiff
70 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following:
(a)the occupational physician and OHS consultant, Dr Kilner Brasier, on 11 July 2018;[32]
(b)the hand surgeon, Mr Damian Ireland, who examined the plaintiff on 17 April 2019.[33]
[32]See report of same date, exhibit 6, at pages 57-60 PCB
[33]See report dated 23 April 2019, exhibit 6, at pages 60-68 PCB
71 Dr Brasier obtained a history from the plaintiff that he experienced a gradual onset of bilateral hand pain around August 2014 and continued to worsen over the next two years. In particular, he gave a history of manually handling various milk products during the course of his employment.
72 Dr Brasier obtained a history of consulting the general practitioner, undergoing the electromyographical testing and the ultimate surgery to his right and left wrist. Furthermore, the plaintiff informed Dr Brasier that he attempted suitable duties but was terminated by his employer on 27 December 2016.
73 At the time of examination, the plaintiff complained of constant tightness and stinging aching in both hands, the right being greater than the left. He described the tips of his fingers as being cold and also complained of clumsiness and loss of dexterity, particularly in his right hand.
74 On examination of the plaintiff’s hands, there was noticeable wasting of the thenar and hypothenar muscles of the right hand with a generalised reduced sensation to touch, especially the second and third fingers. The extent of loss of sensation and function in the right hand suggests a wider distribution of motor and sensory supply to the hand from the median nerve in his case.
75 Furthermore, grip strength was markedly reduced in the right hand when compared to the left, and pressure over the right carpal tunnel produced aggravation of his symptoms. There was also wasting of thenar musculature on the left, however, to a lesser extent.
76 In answer to specific questions, Dr Brasier stated:
·The plaintiff suffered injuries to the median nerves of the left and right hand, referred to as carpal tunnel syndrome, and consistent with heavy repetitive work using both hands.
·Dr Brasier considered that as a consequence of the physical injury, the plaintiff suffered impairments to his right and left hands, which precludes him from employment or activities involving forceful gripping, twisting, lifting, pushing, pulling, working at heights or climbing. He considered that such incapacity will continue for the foreseeable future.
·Dr Brasier was also of the opinion that as a consequence of the plaintiff’s physical injury and impairment of his hands, he was likely to be precluded from social, domestic and recreational activities to a large extent. In particular, Dr Brasier notes the plaintiff’s disappointment and frustration in not being able to pursue his favourite hobbies of painting, drawing and drafting, together with his intention of becoming a tattoo artist.
77 When examined by Mr Ireland on 17 April 2019, the plaintiff gave a history as to the type of work that he was performing – that is to say, manual handling of various milk-related products. He also gave a history of increasing symptoms, causing him to go to his family doctor and later, to a neurologist, who performed electromyographical testing, confirming changes consistent with bilateral carpal tunnel syndrome, more severe on the right than the left side.
78 The plaintiff also informed Mr Ireland that he was certified for light duties and continued in this capacity with no obvious relief of symptoms. He also informed Mr Ireland that ultimately, he came to carpal tunnel releases in mid 2016, and although conceding that his surgery had helped, he was not able to articulate to what degree it helped, and states that numbness persisted. He then returned to light duties and continued in light duties full time until December 2016, when he was dismissed.
79 In particular, Mr Ireland obtained a history that owing to persistent symptoms, a post-operative EMG and nerve conduction study was made on 30 August 2017 which revealed continuing pathology of both median nerves at the wrist, albeit with some improved parameters following surgical treatment, moreso on the left than the right.
80 The plaintiff informed Mr Ireland that he had been informed by his general practitioner that he may need further surgery on the right side because of the persisting symptoms.
81 At the time of the consultation, the plaintiff’s right hand was more symptomatic than his left. In particular, he complained of consistent low-grade numbness in the radial side of the hand, extending to the thumb, index and middle fingers. Such numbness was aggravated by use of the hand. He also described a “pinching/cramping” feeling in the palm of the hand over the carpal tunnel after driving for thirty minutes. This symptom lasts for “hours”. He also described a feeling of “tightness” in the volar aspect of the right forearm with use. He denied any nocturnal sleep disturbance due to hand symptoms. On the left side, the plaintiff complained of a “pinching pain” in the palm of the hand over the carpal tunnel with excessive use, such as handwashing his motorcar. He did not complain of persisting numbness in the left hand.
82 The plaintiff informed Mr Ireland that he suffered no associated medical conditions and there was no family history of carpal tunnel syndrome. In particular, he informed Mr Ireland that he did not suffer from diabetes, thyroid pathology or any other medical conditions commonly associated with carpal tunnel syndrome.
83 When queried about the effect the condition has had on his social, recreational, hobby and sporting life, the plaintiff informed Mr Ireland he was not looking for manual work and he was planning to study. The plaintiff anticipated the need for further surgery in the right hand, and also informed Mr Ireland that he was no longer able to do drawing or sketching, which he was doing on a daily basis prior to the injury. He also informed Mr Ireland that he has not ridden his 250cc motorbike for two years, although he still owns the motorbike.
84 Examination of the right hand revealed a healed carpal tunnel release scar overlying the carpal tunnel on the palm of the hand. The scar was non-tender, non-adherent and non-hypertrophic. There was a mild trophic skin change to all the median innervated pulps with decreased moisture and a firmer texture compared with the ulnar digits. There was no wasting of the intrinsic muscles and there was full opposition of the thumb to all finger pulps with normal oppositional power.
85 Tinel’s test and median nerve compression tests were negative. The Phalen’s test was mildly positive at ten seconds with paresthesias extending into the pulp of the index finger.
86 The pronator sign in the forearm was negative and percussion at the base of the neck did not elicit a Tinel’s sign and there was a full range of motion of the cervical spine without referred pain into the right upper limb.
87 Sensory testing by two point discrimination revealed some minor changes in the thumb and middle finger with 7 millimetres at the radial side of the thumb, 8 millimetres at the ulnar side of the thumb and 8 millimetres on the ulnar side of the middle finger. Two-point discrimination in both sides of the other digits and the ulnar side of the middle finger was normal.
88 Mr Ireland diagnosed the plaintiff to have suffered median nerve compression neuropathy involving both wrists following carpal tunnel syndrome treated surgically.
89 In particular, Mr Ireland stated:
“There is a significant cause and effect relationship between the onset of symptoms of carpal tunnel syndrome bilaterally and the nature of the work. The more or less simultaneous onset of carpal tunnel syndrome symptoms in a young male indicates a congenital anthropometric predisposition to develop carpal tunnel syndrome. However, as stated above, in my opinion the work has been a significant contributing factor. The presence of ongoing symptoms following adequate surgical decompression indicates chronic scarring of the median nerves causing residual compression neuropathy, which has affected the sensory component of the median nerve particularly on the right side.”[34]
(My emphasis.)
[34]See exhibit 6 at page 65 PCB
90 Mr Ireland was of the opinion that the plaintiff should avoid any work requiring repetitive movements of the hands or the wrists, and work should be confined to ground-level work. In relation to fine and manipulative use of the left and right hands, there should be restricted duties for this type of work. The restrictions will continue into the foreseeable future.
91 Mr Ireland was of the opinion that the plaintiff was unable to return to his pre-injury job description or indeed, any form of heavy manual work, or work that requires repetitious movements of both hands and wrists, and in particular, working on a conveyor line. Furthermore, based on his examination findings, Mr Ireland was of the opinion that there was no significant restriction in his social, recreational, hobby and sporting activities following his bilateral carpal tunnel syndrome treated surgically.
Medico-legal material relied on by the Defendant
92 The solicitors acting on behalf of the defendant arranged for the plaintiff to be examined by:
(a) the surgeon, Professor Vernon Marshall, on 5 January 2016;[35]
(b)the consultant occupational physician, Dr Majid Rahgozar, on 22 November 2016;[36]
(c)the specialist occupational physician, Dr Joseph Slesenger, on 14 November 2017[37] and a further supplementary report dated 18 December 2017;[38]
(d)the plastic and hand surgeon, Mr Murray Stapleton, on 12 March 2019[39] and he also supplied a supplementary report dated 16 April 2019;[40]
(e)the consultant occupational physician, Dr Catherine Bones, on 11 April 2019,[41] together with a supplementary report dated 7 May 2019.[42]
[35]See report of same date, exhibit C at page 1-6 DCB
[36]See report dated 30 November 2016, exhibit C at pages 7-16 DCB
[37]See reported dated 21 November 2017, exhibit C at pages 17-28 DCB
[38]See exhibit C at pages 29-32 DCB
[39]See report of same date, exhibit C at pages 33-36 DCB
[40]See exhibit C at page 37 DCB
[41]See report dated 24 April 2019, exhibit C at pages 38-45 DCB
[42]See exhibit C at pages 47-48 DCB
93 Seemingly, Professor Marshall examined the plaintiff on behalf of the insurer of the defendant in order to determine liability. Such examination on 5 January 2016 was prior to any electromyographical testing and of course the surgery.
94 Notwithstanding, after obtaining a history from the plaintiff and making a clinical examination, Professor Marshall was of the view that the plaintiff had suffered “… work strain injuries with bilateral carpal tunnel syndrome symptoms with median nerve irritation at the wrist, aggravated by work activities”.[43]
[43]See exhibit C at page 4 DCB
95 When Dr Majid Rahgozar examined the plaintiff on 22 November 2016, the plaintiff had undergone bilateral carpal tunnel syndrome release surgery on the right side in March 2016 and the left in July 2016. However, as at the date of the examination, the plaintiff had not undergone the further nerve conduction studies on 30 August 2017.
96 At the time of examination, the plaintiff complained of no pain in his wrist or hand at rest, but reported there was an ongoing sense of pins and needles and numbness in the distribution of his thumb, index and middle finger palmar aspects, right more than left. He reported no morning stiffness, difficulty with initiation of sleep or interruption of sleep. He reported a sharp pain when he pushes up against the surface of the extended wrist, such as when he is doing his stretches.
97 At that time, he was taking no analgesics, seeing his physiotherapist once a fortnight and receiving hands-on treatment like massage and manipulation and acupuncture, as well as education in relation to appropriate exercises.
98 The plaintiff did inform Dr Rahgozar that his love or art and tattooing had been effected from what the plaintiff described as clumsiness of his hand.
99 Examination at that time revealed that the scars of recent surgery appeared to have healed satisfactorily. The range of motion of both wrist joints was normal. The grip strength of the right and left hands appeared to be normal. There was a mild loss of sensation to fine touch in the distribution of the median nerve bilaterally, right slightly more than left. Examination of the elbow joints was normal. There was no evidence of wasting, vascular or tendon impairment. Dr Rahgozar had available the nerve conduction studies undertaken by Dr Ng in 2015.
100 Dr Rahgozar set out his opinion and diagnosis as follows:
“Mr Baker has had bilateral carpal tunnel release after diagnosis of bilateral carpal tunnel. He had left carpal tunnel surgery in July and right in March 2016. He has been able to return to near normal duties. He is asymptomatic apart from mild paraesthesia in the distribution of the median nerve bilaterally that is likely to settle over the next six to twelve months. He has normal grip strength and normal function of the right and left hand.
In my opinion, Mr Baker’s condition has largely resolved that he can return to normal duties without any restriction. In my opinion, he does not benefit from hands-on treatment like massage, manipulation, acupuncture, or physiotherapy; however, he would benefit from exercises and can progress to self-management.”[44]
[44]See report of Dr Majid Rahgozar, dated 30 November 2016 – exhibit C at page 11 DCB
101 In relation to the aetiology of the carpal tunnel syndrome, Dr Rahgozar stated:
“The aetiology of carpal tunnel syndrome is rather complex and multifactorial but one could argue that forceful grabbing, grasping of the objects with hands and repetitive flexion and extension of the wrist could have contributed to the development of Mr Baker’s carpal tunnel syndrome.”[45]
[45]See report of Dr Majid Rahgozar, dated 30 November 2016 – exhibit C at page 11 DCB
102 When Dr Slesenger saw the plaintiff on 14 November 2017, he gave a history as to the various activities he undertook when employed with Oz Staff and Longwarry Food Park, together with the onset of symptoms, medical treatment and ultimate right and left carpal tunnel decompressions respectively undertaken in May 2016 and July 2016.
103 At the examination, the plaintiff advised that there had been little improvement in his symptoms and he described ongoing pain, stiffness and tingling in both hands, covering his thumb and forefinger and occasionally the middle finger. He stated that there is a pinching sensation at the base of the hand on the palmar surface.
104 The plaintiff advised Dr Slesenger of weakness in the hand and difficulty from gripping, pushing and pulling. Dr Slesenger also obtained the history that the general practitioner of the plaintiff had recently requested a review of nerve conduction studies and that this had confirmed evidence of right persistent median nerve neuropathy – however, the left side had now resolved.
105 In particular, Dr Slesenger obtained a history that the plaintiff lives on a farm in Gembrook with his mother and his mother’s partner, and whereas he used to engage in farmhand activities such as repairing fences, chopping wood, working on motorcars and riding motorbikes, he has been advised to cease all such domestic farm work and repair work. The plaintiff also informed Dr Slesenger that he had always been a keen drawer and was planning to commence work as a tattoo artist had not the terrible COVID-19 virus intervened.
106 After making a detailed examination, Dr Slesenger stated:
“Mr Baker presents with a difficult case to assess. He presents with evidence of bilateral carpal tunnel syndrome requiring surgical intervention; however, he has responded poorly to operative intervention and describes ongoing functional limitations. He describes residual occupational and recreational restrictions.
Clinical examination demonstrated scarring consistent with the surgery described; however, the clinical examination also demonstrated evidence of ongoing manual handling activities (including painting).”[46]
[46]See report dated 21 November 2017 – exhibit C at page 24 DCB
107 Ultimately, Dr Slesenger was of the opinion that the plaintiff developed symptoms with bilateral carpal tunnel syndrome and the investigations confirmed diagnosis. He has undergone a bilateral carpal tunnel release:
“o I was of the opinion that his impairment at that time was not related to the workplace exposures.
o I was of the opinion that the cause of his carpal tunnel was at least multifactorial and the domestic/farm hand exposures were a more likely cause of the bilateral carpal tunnel syndrome. (in particular, I noted the exposure to vibratory tools).
o There was evidence that his function was far greater than that which was described at evaluation.”[47]
[47]See report dated 21 November 2017 – exhibit C at page 26 DCB
108 In a subsequent report, Dr Slesenger accepted that the plaintiff could perform work as a forklift driver, rubbish truck driver, warehouse clerk and despatch clerk.
109 When examined by the plastic and hand surgeon, Mr Stapleton, on 12 March 2019, he obtained a history from the plaintiff of the various work activities that the plaintiff undertook.
110 Ultimately, Mr Stapleton expressed the opinion:
“Carpal tunnel syndrome is now long since known to be a genetically determined problem and there is no evidence that an injury has taken place.”[48]
[48]See report dated 12 March 2019 – exhibit C at page 34 DCB
111 Mr Stapleton distinguished situations where repetitive injury such as flexing the wrist akin to a Phalen’s does cause an aggravation of symptoms, but that is quite different from aggravation of the underlying carpal tunnel problem.
112 Ultimately, Mr Stapleton commented:
“The diagnosis is there is evidence possibly related to permanent median nerve scarring where the symptoms of carpal tunnel syndrome have been very much relieved because of the open decompression he has had on both sides.
(a) I do not believe that his occupation and employment activities with Oz Staff Pty Ltd caused, or aggravated, his carpal tunnel compression.
(b) I do not believe this is an injury.
(c)He is suffering from the effects of carpal tunnel compression which, in my view, is a predetermined problem from which he would suffer whether he worked or whether he did not.”[49]
(My emphasis.)
[49]See exhibit C at pages 35-36 DCB
113 When examined by the consultant occupational physician, Dr Catherine Bones, the plaintiff described numbness in the first three fingers of his right hand and a tightness or pinching sensation across the right wrist. The plaintiff described tightness in his right forearm, but also some tightness across the base of his left wrist. However, he had no nocturnal symptoms.
114 Dr Bones had available the nerve conduction studies undertaken on 25 November 2015 and more recently on 30 August 2017. She noted that the later studies revealed right median to moderate degree neuropathy at the wrist consistent with carpal tunnel syndrome, whereas the left median nerve conduction studies were described as normal.
115 Dr Bones then states:
“In my clinical opinion, Mr Baker has undergone successful decompression for carpal tunnel syndrome of the left wrist. In my clinical opinion, Mr Baker described persistent numbness in the first three fingers of the right hand and had abnormal nerve conduction studies in 2017 that suggest persistent involvement of the median nerve. The literature suggests an association with high levels of hand/arm vibration, prolonged work with a flexed or extended wrist, high requirements for the combination of hand force and high repetitiveness, the cycle time being 50% of cycle time performing the same movements.
I am not certain that Mr Baker’s employment duties as described today reflect those associations. As such, I consider that Mr Baker’s employment in general between January 2014 and December 2016 did not materially contribute to the condition.”[50]
[50]See exhibit C at pages 43-44 DCB
116 In a subsequent report dated 7 May 2019, Dr Bones advised that she considered that the plaintiff was fit to undertake various employment options as set out in a Recovre report.
The cross-examination of the Plaintiff by Counsel for Longwarry Food Park
117 Under cross-examination, counsel for Longwarry Food Park established that the plaintiff did attend Dr Catherine Bones on 11 April 2019 and Mr Ireland on 17 April 2019.
118 In respect to the attendance on Dr Bones on 11 April 2019, the plaintiff accepted that the plaintiff complained, amongst other things, of numbness in the first three fingers of his right hand and that he had a feeling of tightness or pinching sensation across the wrist. Furthermore, the plaintiff accepted that when he saw Mr Ireland on 17 April 2019, the plaintiff accepted that he told him that his right hand was more symptomatic than his left and that he had constant low-grade pain in the radial side of the hand extending to the thumb, index and middle fingers. Furthermore, he accepted that he told Mr Ireland that he had numbness extending to the thumb, index and middle fingers, to which the plaintiff replied that it was a loss of sensation that was aggravated by the use of the hands. Although he could not recall telling Mr Ireland that the pinching or cramping feeling in the palm of the right hand over the carpal tunnel came on after driving about thirty minutes, he accepted, in answer to a question from the Court, that was the fact.
119 The plaintiff also accepted he told Mr Ireland that one of the problems he experienced was the lack of ability to engage in art, to which the plaintiff replied “Yes”.
120 Counsel acting for Longwarry Food Park then proceeded to show two video discs taken on 11 April 2019 ꟷ the day on which the plaintiff attended a medico-legal examination with the occupational physician, Dr Catherine Bones (retained on behalf of the defendant). The first disc was 19 minutes 59 seconds long, with the second disc being 3 minutes and 31 seconds. Each video was taken of the same event by different agents filming.
121 After being shown the films, the plaintiff accepted that the videos showed him leaving the premises of Dr Bones at 9.54am, getting into his car, after which he drove to a KFC in the Boronia Mall and later, to 321 Dorset Road, Boronia (where friends of his were residing), and later, the plaintiff was seen to drive to a 7-Eleven carpark in Bayswater and enter a Bunnings store, where it is suggested that he may have bought some paint. The following evidence was given:
Q:“And you come out with something, can you recall what it was you bought on that day?---
A:Some paint maybe.
Q:Spray paint?---
A:Yes.
Q:Then the film shows you parking in Keswick Crescent, Bayswater, and you have a backpack on?---
A:Yes.
Q:And we saw you walk through into the Appletree Reserve and you sit behind a factory wall, does that sound right?---
A:Yes, I went for a paint there, that’s what I was doing.
Q:And you were sitting there having a drink at that stage, can you recall, you had been to a bottle shop earlier that day?---
A:Yes, I bought some cans of bourbon, yes.
Q:And so we see you raise a blue can to your mouth while you’re sitting beside the wall, I take it that’s a bourbon?---
A:Yes.
Q:And then you - - -?---
A:Actually, if it’s a blue can, it’s from my KFC.
Q:Then we see you at 12.41 stand up and you have blue plastic gloves on, rubber gloves?---
A:Yes.
Q:And you have a spray can in your right hand, haven’t you?---
A:Yes.”[51]
[51]T41, L25 – T42, L14
122There was then discussion between the Court, counsel for the plaintiff and the plaintiff as to the risks of self-incrimination: The cross-examination then continued:
MR McKENZIE:
Q:“Mr Baker, when we see you in the film with the spray can you’re performing some art on the wall, is that right?---
A: Yes.
Q:And what I suggest to you is that when we see you there you’re using your right hand with the spray can in your right hand, do you agree with that?---
A:Yes.
Q: And you seem to be holding it quite firmly with your thumb?---
A: Yes.
Q:Your index finger and your middle finger, would you agree with that?---
A:Yes.
Q:And I think your index finger is pushing the button down on the spray?---
A:Yes.
Q:What I suggest to you is that presentation, you performing that spraying is different to what you described to Dr Bones on the same day when you said you had numbness in the first three fingers of the right hand and a tightness or a pinching sensation of the right wrist?---
A:Yes.
Q:And a tightness in your right forearm?---
A:Yes.
Q:I suggest to you that you told Dr Bones that somewhere between 9 am and 9.54 am on the 11th?---
A:Yes.
Q:And then on the same day at 12.41 we see you engaged in this activity of spraying?---
A:I understand, I can’t remember how long I painted for that day and as you could see, I’m not sure how many minutes you actually had footage of me actually painting. There was probably a reason why I wasn’t for long, mainly because of my hand. Driving, I use my left hand, it’s an automatic so that’s why I drive that car, my mum’s car and not my other normal car, so I don’t suffer symptoms.
Q:What I’m suggesting to you in relation to painting is, this activity that you have been able to perform, we have seen you perform it for a couple of minutes on the video?---
A:Yes.
Q:You don’t seem to have any of the problems that you were complaining to Dr Bones about, what do you say?---
A:I say yes, I do have those symptoms.
Q:You say that there is an understanding that you have with the people at the factory about painting, is that right?---
A:Yes, well, that’s as far as what I was told with people that I was taken there with.
Q:So I take it that wasn’t the first day you went there to paint on that wall, was it?---
A:I have been there with people many times, most of the times I never painted, I go there because I’m not really experienced in doing that sort of stuff and I watched quite a few people, in that whole factory area - - -
Q: Not experienced in painting graffiti?---
A: Yeah, that’s right.
Q:So it wasn’t something that you were doing in the past, is that right, it is a more recent thing?---
A:I have painted - no, I have had a go but I have never spoken to any of the factory owners. The other guys who sort of hang around who are experienced, what you would call experienced street artists, that’s who I got taken there with and was sort of shown that area.
Q: You were shown the area?---
A: Yes.
Q: And you were shown how to do the street art, is that right?---
A: Over the years, yes.
Q:And you have been trying your hand at street art, haven’t you, as we can see?---
A:Over the years, yes.
Q:And you have been doing it as recently as 11 April this year, haven’t you?---
A:That’s when I went there, yes.
Q: Have you been there again?---
A: 11 April this year, yes, I have been back there.
Q:You said to His Honour it wasn’t just tagging, that you were doing proper artwork, is that correct?---
A:Yes, I wasn’t tagging, I don’t tag.
Q:And just so we’re all clear, tag is some initials or a sign to say JB or something like that, is that right?---
A:Yes.
Q: But you’re doing something more elaborate than that?---
A: Trying to.
Q: Is that the only location that you go and do street art?---
A: No, I go other places.
Q: Bendigo did you say?---
A: Other places.
Q:Sorry, I misheard. Other places, and where are the other places that you perform street art?---
A:I’m not going to tell you that, sorry.”
HIS HONOUR:
Q:“Why aren’t you going to tell him that?---
A:In case I incriminate myself.
Q:I see.”
MR McKENZIE:
Q:“We won’t worry about locations. So there is other places where you perform street art, is that right?---
A:Yes, try to, yes.
Q:And street art is a form of painting, isn’t it, painting with a spray can?---
A:Yes.
Q:And it is an artistic work, isn’t it?---
A:Yes.
Q:You take pride in your work, don’t you?---
A:If it’s okay.
Q:And it gives you some satisfaction to do that, doesn’t it?---
A:If it’s okay, if it looks all right.
Q:If the artwork looks okay?---
A:Yes.”
HIS HONOUR:
Q:“I have been told, I haven’t read all the affidavit material, how old are you now, about 30, are you?---
A:39.
Q:So how long have you had an interest in painting and drawing and things like that?---
A:My brother did fine arts, my sister was an artist, my mum was an artist, my dad was an oil painter.
Q:So it is in the family, is it?---
A:Yes.
Q:In your DNA?---
A:Yes.
Q:So when did you start taking it up and in what form?---
A:I did art in high school.
Q:And enjoyed art once you did it?---
A:Yes.
Q:After leaving high school in what form did you follow that through, if you did?---
A:I did mostly drawings and sketchings and then I had a few friends who were into the street art and they saw my drawings and sketches and they kept trying to say, ‘You have to come out and come painting with us’, so in the end I sort of - - -
Q:So the street art started how many years ago?---
A:2000, year 2000.
Q:And that’s continued over the years, has it?---
A:Yes, it’s been in the background a bit of an interest, yes.
Q:Since your troubles with your hands, has that continued or changed in any way?---
A:Yes, with all of that, but the month’s the major thing with that because as well, I mean, the paint’s expensive and things and the area that I live in, so it’s something that even before my injury I never really was seeking to do or would chase after. But yeah, it’s just every now and then if the opportunity arose I would go and have a bit of a play but it’s very hard to get the skill to be able to do it at level these guys are doing it at, and that’s something I struggle with, trying to get my level as good as my drawing and things. That’s why I was a bit more interested tattooing side of it and yeah, the more fine detail sort of stuff that I like.”[52]
[52]T44, L18 – T48, L19
123 Counsel for Longwarry Food Park then referred to various postings in the plaintiff’s Facebook account.
124 In answer to a question from the Court, the plaintiff explained that when he referred to “street art”, that involves painting outside on a wall or another object.
125 The plaintiff explained the street art is generally done with cans, whereas any art on carboard or panels is performed by way of crayon or pencil work. In particular, the plaintiff gave the following evidence:
Q:“But the art on cardboard or panels et cetera is generally crayon work or pencil work?---
A:Pencil, I always - like I grew up - I’m colour blind, I don’t have green cones in my eyes, so just the grey led pencil was my thing, that’s what I always used.
Q:You’re colour blind, so how do you differentiate colours when you do paint with colours?---
A:I read the can.
Q:I see. You talked about crayons and pencils, do you ever actually use paint brushes?---
A:Yes, there was some in my earlier pictures at high school and there is another oil painting there where I used brushes and things.”[53]
[53]T51, L14-24
126 The plaintiff was also then queried about the photographs from pages 135‑196 of the Defendant’s Court Book and the plaintiff accepted that those photographs showed art that he has undertaken himself. Counsel also noted that these photographs were posted on 9 November 2017. Further evidence led to the plaintiff stating that he had the originals of the various photographs in a folio which he had brought to Court, many of which would have the dates on which they were created. In particular, the following evidence was given:
HIS HONOUR:
Q:“You can have a look at them if you like, so we have the originals now. The originals might have dates on them, might they?---
A:Yes, there is two that I know of in there that have the dates on them, the pictures are here.
Q:So I understand, obviously you keep the originals at your place at home, do you?---
A:Yes, I have never really kept a lot of my pictures, growing up and things I do them for people and leave them at their house and things. Then when I started getting into the tattooing I started putting together a folder.
Q:Because you need that, don’t you, when you go and try and get a job - - -?---
A:Yes, that’s what I was - that’s the whole reason for -
Q:Can I just ask you though, obviously you didn’t paint all of these ones we have been looking at on that date you posted them?---
A:Yes, yes.
Q:No, obviously not, yes. Well, can you give us any idea when you did paint them?---
A:From the early 2000s to the period just before I started work there, because I had time on my hands. Once I started work as well not only the fact that I had carpal tunnel, but 40 hours a week shift work. But yes, so I mean, yes, I have them in here from - like that one was 07, that one was - - -
Q:Well, just hold it up so everyone can see it, was that one of the ones you posted?---
A:Yes, that’s the date at the top there, date there and there.
Q:I see. Yes?---
A:Then this one here, that was one that my girlfriend at the time and me actually done and she signed her name with the date at the bottom left-hand corner of that one. 2011.
Q:Is this one of the ones which is in the - - -?---
A:Yes.”
MR CHANCELLOR:
A:“173, Your Honour.”
HIS HONOUR:
A:“Do you want to have a look at these over a break. Obviously I understand the relevance of what you’re hoping they are but I want to find out what they are.”
MR McKENZIE:
Q:“Certainly, Your Honour, I think they might be the only two with the date on them?---
A:Yes.”
HIS HONOUR:
Q:“Firstly, you have been shown these and most of these were posted in November 2017. Did you paint those or any of those in November 2017?---
A:None of them.
Q:None. And they run from when, do you say?---
A:From 2004 – I would say - it’s hard to guess, but up to about 2014.
Q:And since 2014 what if any painting have you done?---
A:I have tried, I have started trying to use my left hand, I have trying drawing and I have been trying to use my left hand to do as much as I can. And I have tried bits and pieces but after a short amount of time I just get cramped up in it and it is useless, I can’t – .”
MR McKENZIE:
Q:“Mr Baker, would you look at p.166. I take it that’s paper, a couple of bits of paper?---
A:Yes, that’s paper.
Q:And that is a sketch of a revolver?---
A:Yes.
Q:Signed by you 2015, is that right?---
A:Yes.
Q:You agree that is a fairly detailed drawing?---
A:Yes.
Q:And you have done that with your right hand, haven’t you?---
A:Yes, I probably have, yes.”[54]
[54]T52, L13 – T54, L11
127 The plaintiff was then cross-examined about his treatment regime and the plaintiff confirmed that Dr Jayasena, at the Mooroolbark Superclinic, was his essential treating doctor, although he may have seen other doctors at that clinic, but she is his main general practitioner.
128 When it was put to him that he had not been to the clinic since May 2018, he initially responded he could not say when he was last there, but on further consideration he thought that might be the case.
129 Later, when queried as to whether or not he was attending any other doctors, the plaintiff noted that Dr Jayasena had recommended surgery after the second nerve conduction study test done and that she was basically waiting for the patient to give the go ahead to undertake further surgery on his right hand. The plaintiff gave evidence that he really did not want to undergo surgery again and that he did not want to have his hand cut open again and, accordingly, he has been putting off any further surgery.
130 When pressed as to what his position was, the following evidence was given:
Q: “When did you decide not to have surgery?---
A:I haven’t decided not to, I have just - I have been putting it off because - yeah, I’m a bit worried about it, that’s all, but yeah.
Q:So do you propose to have surgery at some point?---
A:Well, yeah, that was sort of - didn’t expect - was looking at getting that done but I’m no longer covered under WorkCover because of it and I will have to do it on my own.
Q:In March of this year do you remember seeing CoWork, Joanne Bryant, talking to you about going back to work?---
A: Yes.
Q: And - - -?---
A: Re-training and such.
Q: Yes. And at p.105 of the defendant’s court book, Your Honour.
She says in the middle of the paragraph, that you want your WorkCover funding turned on, in other words so you can have the procedure and get back to work?---
A: Yes.
Q:Did you tell Ms Bryant that you intend to put your name on a waiting list as a public patient, did you tell her that?---
A:That’s what everyone’s been telling me to do.
Q:Did you tell her, ‘I’m going back in, I’m going to get it done under Medicare’, did you tell her that?---
A:Well that’s what I’m going to have to do, isn’t it?
Q:She says you told her so you could return to work and leave the WorkCover system, did you tell Ms Bryant that?---
A:Yes, I haven’t been on the WorkCover system.
Q:But you told Ms Bryant in March of this year - - -?---
A:I have been on Centrelink the whole time, I haven’t been on any payments of WorkCover at all.
Q:You told Ms Bryant in March of this year you were going to get the surgery done under Medicare as a public patient, correct?---
A:Unless I can get my WorkCover medical payments turned back on which I don’t know how to do and that’s what I have been trying to figure out. This whole thing was me trying to get my hands finished, fixed, being fixed, that’s the whole reason I wanted to go through with all this, so I could get medical turned back on for my WorkCover, get my hands finally fixed. It was like they never fixed them, everyone was saying they are right, go back to work. I’m saying no, I just wanted them fixed, all I want is my hand fixed again.
Q:So you do plan to go on the public system and get your right wrist operated on, don’t you, under Medicare?---
A:I don’t know what I’m going to do, I don’t know if I could – if I’m going to get my medical turned back on out of this, I don’t know what’s happening.
Q: In March of this year you told Ms Bryant, ‘I’m going back in, I’m going to get it done on Medicare’, that’s what you told her, wasn’t it?---
A:Is it? I don’t know.
Q:She’s put that in as a quote from you, ‘I’m going back in, I’m going to get it done on Medicare’, that’s what you told Ms Bryant in March of this year?---
A:March, right.
Q:I suggest that’s the situation today, that you’re still thinking about going and having some right wrist surgery, is that correct?---
A:Yeah, but I’m worried that if something goes wrong that I - if they stuff the operation up I’m not going to be covered in any sense. It was a WorkCover injury, an injury that happened under WorkCover. If anything happens in that operation I go back on the public health system and they stuff it up and all the nerves in my hand don’t work anymore, can’t use this hand, that’s me done, I’m not covered under WorkCover. I wanted to get my WorkCover medical turned back on so I could go back under the WorkCover and get that procedure finished and done and return back to work properly, that’s the whole point, the whole thing.
169 Furthermore, I accept that the type of work undertaken during that employment could aggravate carpal tunnel syndrome for the same reasons advanced earlier in these Reasons for Judgment. However, it is also clear that to the extent that he had symptoms of carpal tunnel syndrome, such were nowhere near as florid as those experienced when working for Longwarry Food Park.
170 In this respect, the plaintiff experienced symptoms in or about August 2014. Such symptoms were bilateral, but the right being worse than the left. Such symptoms lasted a couple of days and then they went away. As I have already recorded, the plaintiff neither attended a doctor, nor lost any time off work.
171 In the past, carpal tunnel syndrome has frequently been referred to as a “gradual process” type of injury. In this respect, I refer to the Court of Appeal decision of Grech v Orica Australia Pty & Anor.[87] Of course, the word “injury” suggests there is a work contribution to the development of such condition which, as I have already noted, is not universally held.
[87]Op cit
172 On balance, I consider it is more probable than not that the plaintiff was experiencing the early symptoms of carpal tunnel syndrome in August 2014, but obviously enough, the symptoms became significantly worse, both in terms of their severity and length of time they were experienced when employed by Longwarry Food Park. The Claim Form for compensation submitted by the plaintiff against Longwarry Food Park[88] identifies the “injury” to be a “gradual process” from 14 January 2014 [when the plaintiff commenced employment with Oz Staff] to 17 November 2015 [shortly before the plaintiff’s employment with Longwarry Food Park was terminated].
[88]See exhibit 4
173 Each of the parties made written submissions. Counsel for the plaintiff submitted that the plaintiff suffered a compensable injury – that is, the carpal tunnel syndrome – during the course of or arising out of his employment with Oz Staff and Longwarry Food Park. It was further submitted that both injuries – that is to say, the injury with the employer Oz Staff and the injury with the employer Longwarry Food Park – contributed to the “serious” consequences suffered by the plaintiff and therefore the plaintiff should be granted leave to commence proceedings against both Oz Staff and Longwarry Food Park. This submission was essentially based on two grounds – a construction of various provisions of the Act and/or the application of the principles enunciated in Grech v Orica Australia Pty Ltd & Anor.[89]
[89]Op cit
174 Initially, I refer to s5 of the Act, which states:
“(1)Except as otherwise expressly provided in this Act, this Act applies to the entitlement of a worker to compensation under this Act in respect of—
(a)an injury to the worker arising out of, or in the course of, or due to the nature of, employment on or after 1 July 2014; and
(b) an injury arising—
(i)out of, or in the course of, or due to the nature of, employment; and
(ii)by way of gradual process over a period beginning before, and continuing on or after 1 July 2014—
but does not apply to or in relation to an injury arising out of, or in the course of, or due to the nature of, employment solely before 1 July 2014.
(2) If a worker suffers an injury that—
(a)arises out of, or in the course of, or due to the nature of, employment; and
(b)occurs by way of gradual process over a period beginning on or after 20 October 1999 and continuing on or after 1 July 2014—
the worker may rely on any part of the injury that occurred before 1 July 2014 for the purposes of establishing that the injury constitutes a serious injury for the purposes of Division 2 of Part 7.
(3)Subsection (2) does not apply to any part of the injury that was the subject of an application made under section 134AB(4) of the Accident Compensation Act 1985.
(4)Division 5 of Part 7 applies in relation to an injury, disease or industrial deafness caused to or suffered by a worker before, on or after 1 July 2014 that has arisen out of, or in the course of, or due to the nature of, any employment in which the worker was employed at any time.”
175 It is submitted by counsel for the plaintiff that such provisions support the proposition that the “injury” sustained in the Oz Staff period of employment can be relied upon in establishing “serious injury” under the Act.
176 Although not free of difficulty in interpreting s5, I consider that the primary purpose of such section is to demarcate the application of the Act to apply to injuries on or after 1 July 2014 except in certain circumstances as set out in the section. However, when the word “employment” is used in ss(1)(a) and ss(2)(a) of s5, I am of the opinion that it is a reference to one employment rather than a series of employments. I note that counsel for Oz Staff submitted that “Section 5(2) applies only to ‘an injury’ that arises in one but not more than one employments. It makes no reference to employments in the section.”[90]
[90]See paragraph 13 of written submissions
177 In the circumstances of this matter, the employment of the plaintiff by Oz Staff commenced on 14 January 2014 and continued until 9 November 2014 and clearly straddled 1 July 2014. The employment of the plaintiff by Longwarry Food Park commenced on 9 November 2014 and all such employment was after 1 July 2014.
178 I consider that ss(1)(a) makes clear the general proposition that the Act applies to compensable injuries on or after 1 July 2014. Subsection (1)(b) qualifies this position that, in respect of an injury by way of gradual process, it is permissible, where an employment straddles 1 July 2014, to allow that period of employment before 1 July 2014 to form part of the employment in assessing a gradual process injury but does not apply to or in relation to an injury which was only compensable by employment solely before 1 July 2014.
179 In this way, I do not consider that the legislation permits a worker such as in this case, employed by Longwarry Food Park from November 2014, to rely on another separate employment.
180 Similarly, ss(2) is referrable to only one employment, making clear that if one employment gives rise to a gradual process injury over the period beginning on 20 October 1999 (when common law rights were reinstated) and continuing on and after 1 July 2014, a worker may rely on any part of the injury that occurred before 1 July 2014 for the purposes of establishing that the injury constitutes a “serious injury”.
181 Of course, although I do not consider the legislation permits the two employments to be evaluated in the way as suggested by counsel for the plaintiff, it is still of course open as to whether the plaintiff can establish a “serious injury” against Oz Staff based on the employment from January 2014 to November 2014 on the basis that he can rely on employment prior to 1 July 2014 consistent with s5(1)(b) of the Act.
182 If analysed in this way, I do not consider that the plaintiff can establish a “serious injury” against Oz Staff on the basis of the evidence before the Court. There is no medical evidence to support that that employment “injury” gave rise to a permanent impairment and “serious” consequences.
183 I consider that the interpretation I have put forward of such section is consistent with Part 7 of the Act which deals with actions in proceedings for damages.
184 Counsel for the plaintiff also relies on the Court of Appeal decision of Grech v Orica Australia Pty Ltd & Anor[91] which was a decision made pursuant to s134AB.
[91]Op cit
185 Grech was an appeal by a worker whose claim for leave to bring common law proceedings for damages in respect of a work injury was dismissed. Grech had been employed by his employer for over thirty years until made redundant in May 2002. The allegation of injury under the definition of “serious injury” contained in s134AB of the Accident Compensation Act relied on both paragraph (a) in respect of a carpal tunnel injury and paragraph (c) in respect of a mental injury. The evidence established, in relation to the carpal tunnel injury, that it was an injury which had evolved over time and in particular, had evolved over the period from 12 November 1987 to 20 October 1999, which is the so-called “black hole” where work injury during that period of time could not give rise to a claim for common law damages.[92]
[92]See the then s134A of the Accident Compensation Act
186 Based on the evidence before the Court, the worker continued to use his hands in a stressful fashion at work on and after 20 October 1999 when symptoms of medial nerve compression developed. Ashley JA stated, at paragraph 64 of Grech, that:
“… The inference is very strong that the plaintiff suffered injury on and after 20 October 1999, involving the further hypertrophy of tissue, and compression of the median nerve on each side sufficient to produce compressive neuropathy. Upon that analysis, the plaintiff sustained injury meeting a condition of compensability in that period. It was productive of consequences. But it does not follow that such consequences – that is, the entirety of the consequences – did not also result from, or at least were not materially contributed to, by injury sustained before 20 October 1999. That is so even though the consequences of injury – which, let it be assumed, met the definition of ‘serious injury’ – did not ensue until after 20 October 1999. Whether there was such a connection would be a question of fact, to be decided on the evidence.”
187 Counsel for the plaintiff highlighted by way of dicta gave the example of the plaintiff being employed by employer A in the period up to and including 20 October 1999 and by employer B thereafter but the facts were otherwise as the same. This enquiry would still be whether the plaintiff sustained compensable injury in each of the two periods.
188 Ashley JA stated, at paragraph 65:
“… It is, however, easier to understand why that could be so when different employments are introduced into the factual matrix. But, in principle, the question to be resolved – was compensable injury sustained before, and on or after, 20 October 1999, and did any such injury result in or materially contribute to the incapacitating consequences – would be no different.”
189 Also, at paragraph 69, Ashley JA stated:
“In circumstances where, as here, the symptoms of bilateral compressive neuropathy only developed subsequent to 20 October 1999, and could be attributed to the further development of median nerve compression in response to repetitive work strains on and after 20 October 1999, it is tempting to conclude that the plaintiff did not sustain compensable injury before 20 October 1999. So to approach the matter would not be without some force. … .”
190 Earlier, at paragraph 57, Ashley JA stated that it is quite possible, and that it would be a matter for determination according to the evidence in the particular case, that each of two or more compensable injuries is a legally sufficient cause of the same consequences.
191 Counsel for the plaintiff submits that in the circumstances of the subject matter, it is open for the Court to apply Grech because the nature of the injury suffered by the plaintiff is a gradual process injury and although the subject circumstances involved two employers, the gradual process injury was essentially one employment at the same premises doing the same type of work all the time. In any event, in his dicta, Ashley JA considered the same principles would apply when there were two employers, each performing the same type of work giving rise to the carpal tunnel syndrome.
192 I also refer to the Court of Appeal decision of AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[93] wherein the Court of Appeal considered the application of Grech to a situation where a plaintiff had suffered separate injuries to the same body part with separate employers. The County Court judge had held that as each injury “materially contributed to the ultimate consequences”,[94] the plaintiff was entitled to commence common law proceedings against both employers.
[93]Op cit
[94]The same terms used by Ashley JA in Grech
193 The Court of Appeal held that Grech was not applicable in those circumstances and that the principles of Petkovski v Galletti[95] were applicable. In particular, in Filipowicz, the Court stated, in relation to Grech, at paragraph 28:
“Grech dealt with causation issues in the context of a single ongoing condition (bilateral carpal tunnel syndrome) which commenced prior to 20 October 1999 and continued after that date. The question for determination was whether the worker had suffered identifiable compensable injury to his wrists and hands on or after 20 October 1999, which resulted in or materially contributed to the consequences that he claimed constituted serious injury. The case did not involve two separate injuries arising out of two discrete incidents, where the subsequent injury aggravated the earlier injury. There is nothing in Grech which detracts from the principles in Petkovski.”
[95][1994] 1 VR 436
194 Again, as pointed out by counsel for the plaintiff, the Court of Appeal decision of Guppy v Victorian WorkCover Authority[96] applied Petkovski to a situation where the plaintiff had suffered two discrete injuries to his back with different employers. In footnote 3 of that decision, the Court noted there was no inconsistency between Petkovski and Grech.
[96]Op cit
195 I reject the submission that Grech can and should be applied in the circumstances of this matter.
196 I have come to such conclusion for the following reasons:
(a) I consider that the legislation referred to does not support such an approach. As is clear from s5, the Act only applies to injury on or after 1 July 2014. However, there is provision, as I have pointed out, for employment prior to that date to be taken into account in assessing a gradual process injury which straddles 1 July 2014. Such an approach avoids the situation that someone may well be employed for some time prior to 1 July 2014 and after that date by the same employer but would be limited to applying a Grech approach to the employment on or after 1 July 2014 to establish a serious injury. The legislature has obviated that problem by allowing a worker to rely on his employment with that employer prior to 1 July 2014. In Grech, the employment prior to 20 October 1999, although giving rise to a compensable carpal tunnel syndrome, any such injury over the period from 12 November 1987 to 20 October 1999 (“the black hole”) could not give rise to a serious injury and a gateway to bring a common law claim for damages.
Section 5 of the Act, assuming a correct construction, does not provide for a worker to rely on other employers other than the subject employer, to establish a gradual process injury;
(b) In any event, if Grech did apply, it is difficult on the evidence before the Court to assert that the period of employment with Oz Staff from January to November 2014 could be the basis to allege that such employment resulted in permanent impairment and the consequences claimed by the plaintiff. Indeed, as I have already pointed out, the symptoms and signs of carpal tunnel syndrome were significantly more graphic during the plaintiff’s employment with Longwarry Food Park, ultimately causing him to cease work, seek treatment and undergo surgery which on the evidence has not been completely successful.
197 I should add, again not free from difficulty, that if one accepts that the plaintiff did have some symptoms referrable to carpal tunnel syndrome during the course of his employment with Oz Staff, it is appropriate that Petkovski v Galletti[97] be applied. That is, it is incumbent upon the plaintiff to establish as a matter of probability that the extent of aggravation of his pre-existing carpal tunnel syndrome injury is a “serious injury” within the meaning of the Act.
[97]Op cit
198 For the reasons I have stated, I have little doubt that if such an approach is right, the plaintiff has clearly aggravated his pre-existing condition when employed by Oz Staff. In this respect, I refer to and repeat the submission of counsel for the plaintiff, which aptly described the situation:
“If the plaintiff is wrong on the Grech analysis, then it is submitted that the Petkovski v Galletti and A G Staff v Filipowicz analysis establishes a ‘serious injury’ against Longwarry Food Park on the basis that the consequences of the aggravation in the period from 9 November 2014 constitute a serious injury. The evidence is that although the plaintiff had ongoing symptoms from August 2014 that he was still able to continue with his normal work duties and indeed was able to complete some drawings in the February 2015 school holidays. There was a substantial escalation to the plaintiff’s symptoms following the scrubbing at work in September 2015 with symptoms increasing thereafter leading to incapacity for work from 17 November 2015. His capacity to paint, draw and sketch was also substantially reduced as a result of the post November 2014 aggravation.”
199 I accept such admission and would only add that such aggravation in the Longwarry Food Park employment led to the plaintiff seeking medical treatment and ultimately undergoing surgery to both his left and right arms, with the right leaving him with persistent symptoms. I am of the opinion that the extent of such aggravation satisfies the definition of “serious injury” within the meaning of the Act.
Conclusion
200 In relation to Origination Motion No. CI-17-06109, being Baker v Longwarry Food Park Pty Ltd, I find for the plaintiff and pursuant to s335(d) of the Act, the Court grants leave to the plaintiff to bring common law proceedings against Longwarry Food Park Pty Ltd for pain and suffering damages.
201 In relation to Originating Motion No. CI-19-01704, being Baker v Oz Staff Career Services Pty Ltd, I dismiss such application.
202 I will hear the parties on issues of costs and any consequential orders.
Annexure “A”
1 The plaintiff tendered the following exhibits:
Exhibit 1
Folio of drawings.
Exhibit 2
Draft Statement of Claim dated 11 December 2018 found at pages 11-18 of the Plaintiff’s Court Book (“PCB”).
Exhibit 3
Three affidavits of the plaintiff sworn on 10 April 2017, 11 December 2018 and 26 September 2019 found at pages 30-48 PCB.
Exhibit 4
Worker’s Claim Form dated 8 December 2015 found at pages 49-50 PCB.
Exhibit 5
Two nerve conduction studies in relation to the plaintiff dated 25 November 2015 and 30 August 2017.
Exhibit 6
Medical reports from:
·the general practitioner, Dr Niroshi Jayasena, dated 5 September 2018
·the occupational physician, Dr Kilner Brasier (medico-legal report)
·the hand surgeon, Mr Damian Ireland, dated 23 April 2019 (medico-legal report)
·the treating general surgeon, Ms Natalie Zantuck
·operation record dated 3 May 2016
·the surgical registrar, Dr A Barnett, dated 17 May 2016
·operation record of Eastern Health dated 30 July 2016
(All such documents found at pages 55-75, PCB).
2The defendant, Longwarry Food Park tendered the following documents:
Exhibit A
Two surveillance DVDs dated 11 April 2019.
Exhibit B
The records of the general practitioner, Dr Jayasena, dated 22 June 2017.
Exhibit C
Medical reports from:
·the surgeon, Professor Vernon Marshall, dated 5 January 2016
·the consultant occupational physician, Dr Majid Rahgozar, dated 30 November 2016
·the specialist occupational physician, Dr Joseph Slesenger, dated 21 November 2017, and a supplementary report dated 18 December 2017
·the plastic and hand surgeon, Mr Murray J Stapleton, dated 12 March 2019, and a supplementary report dated 16 April 2019
·the consultant occupational physician, Dr Catherine Bones, dated 24 April 2019.
(All such reports found at pages 1-48 Defendant’s Court Book (“DCB”).
Exhibit D
Vocational assessment report, Recovre (such report found at pages 49-134 DCB).
Exhibit E
Facebook posts at pages 135-196 DCB.
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