Blackwell v JMK Construction Pty Ltd

[1988] TASSC 116

Serial No B48/1988

List "B"

SUPREME COURT OF TASMANIA

CITATION:            Blackwell v JMK Construction Pty Ltd [1988] TASSC 116; B48/1988

PARTIES:  BLACKWELL
  v
  JMK CONSTRUCTION PTY LTD

FILE NO/S:  466/1986
DELIVERED ON:  21 December 1988
JUDGMENT OF:  Nettlefold J

Judgment Number:  B48/1988
Number of paragraphs:  12

Serial No B48/1988

List "B"

File No WC 466/1986

BLACKWELL v JMK CONSTRUCTIONS PTY LTD

REASONS FOR JUDGMENT  NETTLEFOLD J

21 December 1988

1. I am satisfied that on 17 August 1985 the plaintiff did suffer the fall described in his evidence. The essential dispute concerns the consequences of that fall. In that dispute the critical factor is the history of the plaintiff subsequent to the fall and, more precisely, whether it supplies an adequate foundation for the opinion formed by Mr Liddell. On that point I accept the basic facts from the evidence of Debbie Archer and Mr Gregson. One of the difficulties about this case is that some of the assertions made by the plaintiff are exaggerated and some are plainly incorrect. However, I accept him on the basic points which were of critical importance to Mr Liddell when forming his opinion. He is corroborated by the two witnesses named above and there is a good deal of support for his case in Dr Scarr's evidence.

1. There is an adequate foundation in fact, supplied by the witnesses mentioned above, for Mr. Liddell's opinion and I accept his opinion as correct.

1. Diagnostic discography performed on 6 April 1987 disclosed that C67 disc was morphologically abnormal and the injection of dye into that disc appeared to exacerbate the plaintiff's inter–scapular discomfort. Mr Liddell formed the opinion that that particular disc was the likely source of his ongoing symptoms. He also formed the opinion that the pain and disruption to the disc more probably than not occurred as a consequence of the work related injury in August 1985.

1. All reference to the problem which occurred at the C56 level is omitted as the view has been formed that it is largely "a red herring".

1. I accept Mr Liddell's opinion that none of the prior incidents referred to in the hospital records was the cause of his back pain. I accept as true the factual basis of that opinion, namely, that he was free from ongoing back discomfort before the work related injury of August 1985.

1. I accept Mr Liddell's opinion that the plaintiff is incapacitated from working as a carpenter for an indefinite period and that incapacity results from the accident at work on or about 17 August 1985. I accept that the true site of the incapacity is the C67 disc. I accept the further opinion expressed by Mr Liddell, namely, "he would be fit for light duties whatever that may mean".

1. Important bases of Mr Liddell's opinion are that no other source of the plaintiff's inter–scapular pain has been found despite extensive investigations and that his inter–scapular discomfort appeared to be reproduced by the injection of dye into the C67 disc.

1. I do not accept the assertion of the defence that the plaintiff worked for some months without any discomfort in the neck or the inter–scapular region. The probability is that the critical history is as follows:–

(1)He suffered a fracture or suspected fracture of the right transverse process of L1 and, as a result, attention in treatment was focused at that level.

(2)Prior to the accident there was some wear and tear at the C67 level and that disc was damaged in the accident. However, there were no symptoms before the accident from the wear and tear at that level.

(3)Because of the fracture or suspected fracture of the transverse process he was off work for a few weeks. In other words, routine advice concerning refraining from work in the case of such a fracture was given.

(4)After the few weeks had passed he went back to work for a few months but he still had substantial discomfort and disability.

(5)Later the problem at C67 was found and, when there was an injection of dye, his inter–scapular pain was reproduced.

1. His ongoing pain should be attributed to the injury in the accident to his worn C67 disc. That has produced the incapacity for work since March 1986 described by Mr Liddell which is a continuing disability.

1. In considering this difficult problem some weight should be given to the plaintiff's age at the time of the accident, 33 years, and his work record before the accident.

1. I am prepared to find in the plaintiff's favour assuming, but not deciding, that he carries the ultimate burden of proof on the critical issue.

1. I shall hear counsel on the question of the form of the appropriate orders to give effect to these reasons.