Carrie, Grant v Herald Roofing Pty Ltd
[2009] VCC 1563
•15 December 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-04792
| GRANT CARRIE | Plaintiff |
| v | |
| HERALD ROOFING PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE GINNANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22-23 September 2009 |
| DATE OF JUDGMENT: | 15 December 2009 |
| CASE MAY BE CITED AS: | Carrie, Grant v Herald Roofing Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1563 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Leave to commence proceedings – Time bar – Serious injury – Cause of action arising before 12 November 1997 – Knowledge of serious injury incapacity – Accident Compensation Act 1985 ss.135A(2)(b) and 135AC
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.D. Philbrick SC and | Maurice Blackburn Pty Ltd |
| Mr G.E. Chancellor | ||
| For the Defendant | Mr B.R. McTaggart | Lander & Rogers |
| HIS HONOUR: |
1 The plaintiff injured his lower back in October 1989 when he was a 19 year old apprentice tiler employed by the defendant. He know seeks leave to bring proceedings for that personal injury, sustained in the course of employment as a result of, and due to the nature of his employment. The plaintiff’s application requires reference to s.135A and s.135AC of the Accident Compensation Act 1985 (“the Act”).
2 The parties agreed that the issue that I am required to determine was as recently stated by Beach AJA in Smith v Canberra Press Pty Ltd,[1] in the following manner:
[1] [2009] VSCA 200 [11]; see also Paget v JLT Workers Compensation Services (2005) 12 VR 692 and Papercorp Pty Ltd v Nicolaou [2006] VSCA 143
“The first ground of complaint can be disposed of immediately. Neither s 135A nor s 135AC require a worker to have knowledge that they had a cause of action arising from the injuries the subject of the application before the court. Had Parliament wished to make such knowledge relevant, then it could have so provided. Further, as successive decisions of this court have established, the fact that a worker does not know that his injuries constitute a serious injury is not relevant for the purposes of s 135AC. What is relevant is knowledge of facts which, when viewed objectively, constitute serious injury incapacity. By the same reasoning, a lack of awareness that a worker had a cause of action arising from the injuries the subject of an application under s 135A has no bearing when considering whether the application under s 135A(2B) was brought within time or not.”
Mandie JA agreed in the judgement of Beach AJA.
3 Section 135A (2)(b) of the Act provides:
“ A worker may recover damages in respect of an injury arising out of, or
in the course of, or due to the nature of the employment-
(a) …..
(b) if the injury is a serious injury and arose before that date but the incapacity arising from the injury did not become known until that date or a later date.”
4 Under s. 135AC (a), proceedings in accordance with s 135 or s135A of the Act, must not be commenced unless the application for a determination has been made before 1 September 2000. However s. 135AC(b) provides:
“ if the cause of action arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997, unless an application for a determination from the worker under section 135A (2B) has been made to the Authority or a self-insurer before the expiration of 3 years after the date the incapacity became known.”
5 I have to determine whether the plaintiff had knowledge of facts on 15 July 2005, which, when viewed objectively, constituted serious injury incapacity.[2] The significance of the date 15 July 2005, is that it was three years before the application for a determination was made.
[2] See State of Victoria v Glover [1998] VSCA 93, Humphries v Poljak [1992] 2 VR 129 and Edwards v McSaveney [2005] VSCA 252 [22] per Ashley JA
6 The plaintiff’s case is that it was not until he suffered the October 2005 injury that his condition deteriorated markedly to the point where he had to undergo surgery. It was not until then that he realised the seriousness of his injuries and the effect that they were going to have on the remainder of his working life. The plaintiff contended that he did not know and could not have known prior to 15 July 2005 that the injury which occurred in October 1989 was serious. He only gained that knowledge after February 2006, when he was advised that surgery could no longer fix his back problem.
7 The issues identified by the defendant were:
(a)
whether the consequences of the injury in October 1989 to the plaintiff did constitute a serious injury;
(b)
whether the plaintiff had knowledge of facts that satisfy the definition of serious injury prior to 15 July 2005.
The Plaintiff’s Evidence
8 The plaintiff swore two affidavits of 10 July 2008 and 10 September 2009. He was cross-examined on the affidavits. He was the only person to give oral evidence.
9 The plaintiff was born on 6 December 1969 and was educated to Year 11. In 1986 he commenced an apprenticeship as a roof tiler with the first defendant. He later worked as a sub-contract roof tiler, truck driver and truck driver/forklift driver.
10 In 1988, during his apprenticeship, he suffered a back injury, which at the time he described as back sprain.[3]
[3] T 45 see Plaintiff’s Court Book (PCB) 72,76,123,133
11 On 3 October 1989, when the plaintiff was in the last year of his apprenticeship, he injured his lower back while working for the defendant on a site at Endeavour Hills. His job involved assisting in setting up and unloading an elevator, which was used to lift tiles from ground level up to the roof of the premises. The injury occurred when he was moving the tile elevator across the roof. The plaintiff was on the roof lifting the top section of the elevator and another apprentice was on the ground lifting the bottom section of the elevator. The other apprentice lost balance. The weight of the elevator pulled against the plaintiff and he pulled back, taking the weight of the elevator to ensure that he did not fall. He felt immediate back pain and later developed right leg pain.
12 The following day, the plaintiff was treated at the Humphries Road Medical Centre, Frankston South.[4]
[4] PCB 76
13 On 17 October 1989 the plaintiff attended Mr Condello, a physiotherapist, regarding right lumbar hamstring pain. Mr Condello considered that his symptoms were probably discogenic.[5]
[5] T 42, PCB 29
14 He underwent x-rays and a CT scan, taken on 17 November 1989, showed a large L4/5 central disc protrusion, slightly more to the right of the midline, causing some narrowing of the intervertebral foramina and significantly indenting the dural sac. At the L5/S1 level, there was mild central bulging of the annulus, but no other disc protrusion.[6]
[6] PCB 19. Plaintiff’s affidavit of 10 September 2009 paragraph 2.
15 The plaintiff was referred to Mr Gary Speck, an orthopaedic surgeon, who on 6 December 1989 wrote that he had:
“ … very minor restriction of straight leg raising at 85 degrees on the right with no neurologic deficit and an excellent range of lumbar spine movement.
His CT scan shows an L4-5 disc protrusion to the right and also a bulging
at the lumbo-sacral disc which also extends to the right asymmetrically.
I have suggested to him that in view of his good clinical response and increasing activity that the next step would be a return to work in about a week’s time with restrictions on changing his posture as he wishes, the avoidance of repetitive bending and lifting and twisting, and I think that one could expect a further improvement with time. I have given him a note to take with him to see you ( Dr Millili) on 5/12/1989 as I believe he is suitable for return to work in a week and should continue on restrictions for four weeks. If he has a deterioration, I would be happy to review him. Otherwise I would expect almost complete resolution over the next four to six weeks.”[7]
[7] PCB 39. Mr Speck substantially reiterated this opinion in a report of 17 October 2006 PCB 40.
16 The plaintiff was prescribed Naprosyn, which is used to relieve the pain and symptoms of inflammation. He underwent physiotherapy.[8] He returned to work on 11 December 1989 and was placed on modified duties until 9 January 1990.[9]
[8] PCB 29
[9] T4 L 6-16
17 The plaintiff’s evidence was that he never thought that he would have a permanent back problem as a result of the 1989 incident. The condition of his back never stopped him doing anything that he wished to.
18 He left his job with the defendant in the financial year ending 30 June 1991, and save for some periods of unemployment, he was self employed until the year 2000. During much of that time he worked as a tiling subcontractor for Greg Jenkinson Roof Tiling.[10] His next substantial period of employment was with Combers Roofing, commencing in or about 2001 and finishing in the financial year ending 30 June 2004. He then gained employment with Frankston Concrete. That latter employment requires some consideration and I will return to it later in these reasons.
[10] T 58-59 and PCB 122
19 In the years after his return to work in 1989, the plaintiff suffered a number of exacerbations of low back symptoms, mainly associated with work incidents.
20 On 4 June 1991 he suffered a flare-up of low back pain and sought medical treatment. He was prescribed Naprosyn.[11]
[11] PCB 79
21 In October 1991 he fell backwards onto concrete and exacerbated his low back pain. He suffered bruising on his left buttock.[12] On 15 October 1991 his lumbo-sacral spine was x-rayed and revealed:
[12] PCB 72-73
“ Normal alignment.
The disc spaces are well preserved with no significant degenerative changes.
No pars defects, the facts and sacro-iliac joints are normal.”[13]
[13] PCB 20
22 In May 1994 he fell through a roof and suffered an aggravation of low back pain.[14]
23 On 21 June 1995, following some heavy work, the plaintiff was treated for sore shoulders and back, trapezius soreness, strain and low back soreness. He was given a certificate for two days off work and was prescribed Naprosyn.[15]
24 In August 1998 the plaintiff, when cutting a tree at home, had a flare-up of back and right leg pain. He was prescribed Naprosyn.[16]
25 The plaintiff attended Mr Clifford Leckning for physiotherapy treatment, 17 apparently from the early 1990s,18 although according to Mr Leckning’s report the first visit was on 5 August 1998, when the notes record the plaintiff experiencing pain in the lower back.19 I will return to the issue of the frequency with which the plaintiff received physiotherapy treatment.
26 The plaintiff attended Mr Leckning on 13 April 2000 complaining of a sharp pain in the lower back following an incident at work, in which his work partner had pulled the elevator and he had to reach forward to the side. However he was able to remain at work. He was again prescribed Naprosyn.20
27 He sought treatment from Mr Leckning again in April 2004 because he had experienced another flare-up of back pain, after performing work requiring that he throw tiles off a roof, which involved twisting his back. He suffered a back spasm. He complained of “constant pain and spreading”.21
28 The plaintiff again sought treatment from Mr Leckning after a recurrence of back pain in October 2005.22
29 In addition to these flare-ups, the plaintiff also suffered from intermittent, niggling low back pain. He said that there could be four to five months between flare-ups, depending on the nature of the job that he was performing.23
30 However the plaintiff was able to continue working and engage in a full range of activities away from work. He purchased a jet ski in 2001 and used it in holiday periods and he was still able to ride a motor bike and snow ski.24 He tried, as he put it, to do things at work differently so as not to injure his back.25
[14] PCB 79
[15] PCB 80
[16] PCB 82
PCB 105
T 52 L 19-23
PCB 105
PCB 107
PCB 45,109
PCB 45
T 68 L9-13
T 70 L8-17
T 53L 4-8
31
In about September 2004, that is almost fifteen years after the incident of October 1989, the plaintiff changed his area of work and commenced with Frankston Concrete. He gave as a reason for this change that the work was lighter and closer to home and he hoped to commence truck driving with the new employer, which was seeking a truck driver. His father was a truck driver and he hoped to take over his business when he retired. [26]
32
First he had to learn the business of Frankston Concrete including by working in the yard.[27] However, in early October 2005, while shovelling concrete, he aggravated his low back pain and developed leg pain extending to the ankle.
33
He sought treatment from his general practitioner, Dr Mililli and obtained anti- inflammatory tablets. He attended the physiotherapist on 10 October 2005. He was off and on work over the next month.
34
He returned to full- time work in mid-November 2005, but his leg pain, in particular, got worse. He ceased work in early February 2006.
35 On 7 February 2006, the plaintiff underwent a CT scan which revealed: [26] T65 L16- 29, T67 L 28-31
[27] T 65 L 23- 29
“L4/5 disc: There is a small, right sided disc protrusion which gently rests
against the right L5 nerve root.
…
L5/S1 disc: There is a small right sided disc protrusion which has
displaced and causes mild compression on the right S1 nerve root.”[28]
[28] PCB 21
36 He was given an epidural injection in his lower back, but it did not help.
37 On 3 March 2006 Dr Mililli referred the plaintiff to Mr Drnda, a neurosurgeon. The letter of referral stated:
“ Thank you for seeing Mr Carrie with recent exacerbations of chronic low back pin and this time associated with severe left sciatica. He has not improved over the last 4 months in spite of NSAIDs, an epidural injection and a recent trial of oral steroid. The initial back injury some years ago was accepted by workcover.
CT shows disc protrusion with right S1 encroachment.”[29]
[29] Exhibit 1
38 Mr Drnda performed an L5-S1 microdiscectomy in late March 2006,[30] which gave the plaintiff initial improvement of his symptoms.
[30] PBC 47-48
39 The plaintiff asked Frankston Concrete whether he could return to work performing, but on 24 May 2006 it informed him that there were no light duties and that his employment was terminated.
40 After initial improvement following the surgery, the plaintiff’s back and leg pain worsened. He attempted work as a driver in July 2006, but on his second day, while helping to unload a truck, he aggravated his symptoms and was unable to continue working.[31]
[31] Plaintiff’s affidavit of 10 September 2009 paragraph 5
41 In September 2006 he was referred back to Mr Drnda, who in a report of 4 October 2006, wrote:
“ The diagnosis is L4/ 5 disc degeneration with mild disc protrusion and L5/S1 disc extrusion with right sided radiculopathy. Also diagnosis is chronic myofascial pain.
… As stated, Mr Carrie had initial injury when he worked as a tiler and was left with chronic back pain for many years. This previous injury laid grounds for flare ups of the low back pain and possible worsening of the disc degeneration that he must have had at the time of the initial injury.
…
The prognosis for Mr Carrie is with some guarding. He had, initially, very good response after surgery and was practically most of the time symptom free with occasional mild symptoms. His symptoms returned just after mid August after a spell of cough. This illustrates the vulnerability to which Mr Carrie was left with his injury from 17 years ago as well as with more recent injury. Mr Carrie will be quite likely to have flare ups of low back pain which may restrict him for the future ability to work. At the last occasion, Mr Carrie did not appear to be capable of work, however, I hope that he should be able to recover to the extent that he can perform tasks which do not require repetitive bending, twisting and heavy lifting. …Jobs such as remotely operating a crane which does not require really physical strain would be one of the suitable jobs for Mr Carrie. … employability would be only in the areas which do not require physical strain, use of physical force, repetitive bending and twisting of the lower back.”[32]
[32] PCB 51
42 The plaintiff underwent a further MRI scan on 23 March 2007, which revealed:
“ Lumbar alignment is normal. Marked degenerative change is shown at the L4/5 and L5/S1 discs with markedly reduced T2 signal intensity due to degenerative desiccation…
At L5/S1 there appears to be a small right L5 laminectomy defect although no scarring is shown in the adjacent erector spinae musculature.
There is a large posterior disc protrusion at this level and axial scans demonstrates this extends into the right side of the canal and has an AP diameter of around 1cm. This would impinge directly on the right S1 and S2.
…
Conclusion: Marked degenerative changes at L4/5 and L5/S1. The major
abnormality is a large posterior right sided disc protrusion at L5/S1.[33]
[33] PCB 24-25
43 The plaintiff was referred to the Metro Spinal Clinic and underwent nerve blocks and nerve root injections in April, August and November 2007.[34]
[34] PCB 55 -66
44 On 27 March 2008 the plaintiff underwent a further MRI. Dr J. Pike described the results as follows:
“ Desiccation of the lower two intervertebral discs, large probably
extruded L5-S1 right sided disc compressing the right S1 nerve root.
Moderate sized disc bulge at L4-5 with a central disc prolapse containing a radial fissure with abutment but not deformity of the exiting L5 nerve root.
Neural canal at the lower limits of normal at the lower two levels as a result of considerable hypertrophy of the posterior bony elements.”[35]
[35] PCB 26
45 The plaintiff’s back pain continued to worsen and on 23 April 2008 he underwent further surgery performed by Mr D’Urso, a neurosurgeon, who in a report of 22 January 2009 stated:
“… an L4-5 and L5-S1 laminotomy and rhizolysis was performed and dynamic stabilisation implants were placed. At L5-S1, significant disc prolapse was encountered as well as epidural fibrosis causing severe right S1 nerve root compression. A discectomy was performed. Grant made an uneventful postoperative recovery and was discharged after several days in hospital. Postoperative x-ray revealed satisfactory positioning of the stabilisation devices. Histopathology revealed degenerative intervertebral disc material.”[36]
[36] PCB 70
46 The plaintiff continued to attend Mr D’Urso regularly. Initially there was some improvement in his leg pain, but over time it worsened.
47 The plaintiff underwent a further MRI scan on 5 August 2008.[37] On Mr D’Urso’s recommendation, he commenced hydrotherapy under Dr Abbott at St John of God Rehabilitation Centre in Nepean. The hydrotherapy was discontinued in the early part of 2009 due to the withdrawal of funding.[38]
[37] PCB 28
[38] Plaintiff’s affidavit of 10 September 2009 paragraph 6
48 The plaintiff continues to see his general practitioner on a regular basis and is prescribed Naprosyn. He receives certificates that he is not fit for work. He receives WorkCover payments at the rate applicable to a person with no current work capacity.
49 The plaintiff cannot return to work due to his injuries. He has always worked in manual jobs. He cannot work as a roof tiler or a truck driver due to his injuries. He continues to suffer from the following main symptoms and disabilities arising out of his injuries: constant and dull low back pain, exacerbated by sitting, standing, or walking for too long, right sciatica represented by a sharp pain radiating through the right buttock, hamstring and calf and causing tingling through the sole of his right foot. His sleep is frequently disturbed by back and leg pain and he is stiff, sore and tired when he wakes up.[39]
[39] (supra) paragraph 8
50 The plaintiff spends his days working around the house and often collects his daughter after school. His back pain gradually increases through the day and he is generally stiff and sore by night time. He continues to take Neurontin, Endep, Naprosyn and Panadeine tablets. He also drinks cans of bourbon regularly to help ease the pain.[40]
[40] Paragraphs 34 – 35 see paragraph 8 of the affidavit of the plaintiff of 10 September 2009
51 In November 2008 the plaintiff was granted a serious injury certificate in respect of both pain and suffering and loss of earning capacity in relation to the aggravation of his back injury, which occurred during the course of his employment at Frankston Concrete.
Evidence of Dr Mililli
52 Dr Mililli is a general practitioner, who provided treatment to the plaintiff commencing at least in 1989. It appears that the plaintiff consulted Dr Mililli at the time of his back injury in October 1989.[41] In a report to the plaintiff’s solicitors of 12 November 2006 Dr Mililli wrote:
[41] PCB 34
“ Grant has a history of previous work related back injury in 1989. I was his treating doctor then. He presented in October 1989 with low back pain and right sciatica related to repeated bending in his work as a roof tiler. CT scan confirmed a L4/5 disc prolapse. He responded gradually to physiotherapy and exercise but required 8-9 weeks off work, gradually increasing his work duties over another month before returning to full time work in January of 1990. He has had occasional exacerbations of back pain since when he self treats with non steroidal anti –inflammatory medications (NSAIDS) but has not required other prolonged time off work because of his back problems.”[42]
[42] PCB 34
53 The plaintiff received treatment from Dr Mililli for back pain on at least the following occasions:
(a) In 1989 after suffering the back injury.
(b) On 10 May 1994 after he fell through rafters and complained
of low back pain.
(c) On 21 June 1995 when he suffered from sore shoulders a
low back pain.
(d) On 4 June 2002 when he reported that he had felt
some thing in his back and was suffering from low back soreness.
(e) On 16 March 2004 when he suffered a flare up of low back pain. [43]
[43] See PCB 79ff
54 Dr Mililli prescribed Naprosyn to the plaintiff on a number of occasions including on 16 March 1994, 3 August 1998,10 June 2000 and 16 May 2003.[44]
[44] supra
55 On 3 August 2009 Dr Mililli wrote:
“The diagnosis of Grant’s ongoing workcover related problem is severe chronic low back pain and sciatica (predominantly right side). The cause of the pain is lumbar disc prolapse at the L4-5 and L5-S1 levels. He has had L5-S1 microdiscectomy in 2006 and 2008, a further 2 level laminectomy L4-5/L5-S1, with rhizolysis and discectomy. These procedures reduced the pain to a more manageable level but he remains significantly debilitated.
The injuries are consistent with his work as a roof tiler in 1989 when he first developed a lumbar disc prolapse from repeated bending and lifting. In 2006 he had a worsening of his pain related to his work as a labourer with a concrete products company. I believe his labour intensive jobs have contributed to his multi level disc prolapse.”[45]
[45] PCB 36
56 The plaintiff also received medical treatment at the Heritage Medical Centre in Frankston, including after the incident after he fell backwards onto concrete in October 1991.[46]
[46] PCB 72
Mr Clifford Leckning- Physiotherapy Treatment
57 Mr Clifford Leckning is a physiotherapist, who has treated the plaintiff. In a report of 3 November 2006 he stated:
“He initially presented to this clinic with acute back and intermittent sharp pain in his posterior thigh on 05.08.1996 after cutting a tree down over 5 days. He was treated with some mobilisation/interferential/McKenzie’s extension exercise and Naproxen.
His next episode was 13.04.2000. He was on a roof and his partner pulled an elevator across the roof, he had to reach forward to the side and felt a sharp pain in his lower back. He managed to stay at work.
His next episode of back pain was 16.04.2004. Again working as a roof- tiler he had to throw 4,500 tiles off a roof. With all the twisting it gave him lower back pain. He had another recurrence of back pain working as a labourer on the 10.10.2005. This episode progressed to an acute Right Sciatica and he was unable to return to work until 04.11.2005. He started back at work for 4 hours per day, and by the 16.11.2005 he was back working 8 hours per day. But his Right Leg pain became worse by the end of the day. He had pins and needles in his right ankle. His leg pain was aggravated by sitting. He had a positive slump test.
Patient returned to this clinic on 16.08.2006 with constant aching in his lower back and posterior thigh, leg and medial arch of foot. He had a Laminectomy done by Mr Andrew Danks, neurosurgeon, in March 2006 as his condition had deteriorated to the point that he was bent over and couldn’t walk due to acute sciatica. He decided to rest after the surgery and developed some scar tissue. He was able to do 1½ days’ work in mid-June and his Right leg symptoms recurred. He was prescribed some Cortisone post op. He went back to the surgeon who was going to organise an epidural injection. He was last seen at this clinic on 25.09.2006. With this type of disc prolapse causing sciatica I feel that it can take up to 2 years for this disc to settle down. He will need to be retrained.”[47]
[47] PCB 45-46
58 The reference in the second line of the extract from Mr Leckning’s report to “05.08.1996” was probably meant to be to 1998.
Medico-Legal Evidence
59 There were a number of medico- legal assessments referred to during the hearing. That provided by Mr H Weaver, an orthopaedic specialist, received the most attention. The plaintiff attended Mr Weaver on 30 March 2006.
60 Mr Weaver’s report included the following passage, about which there was some debate:
“Throughout the succeeding period of more than 16 years, Mr Carrie had apparently experienced recurrences of back symptoms at different times; but the situation has been complicated by the fact that he basically paid for all of his own treatment during this period. He confirmed with me that he had been obliged on average to have at least a dozen sessions of physiotherapy treatment each year, although treatment was received in the form of intermittent concentrated courses of symptoms when his symptoms were most severe.”[48]
[48] PCB 148
The report also included the following comments in response to questions
posed by the defendant’s solicitors
Detail what you consider to be the contributing factor to the
worker’s condition.
Mr. Carrie has been obliged recently to undergo treatment for a very substantial lumbar intervertebral disc prolapse. I believe that his problem was initiated in a work incident which took place as far back as October 1989. However, by the same token there has been a lot of aggravation of his problem as a consequence of employment activities with which he has persevered throughout the succeeding period of more than 16 years.
Was the injury or current condition an aggravation, recurrence, acceleration, exacerbation or deterioration of a pre-existing injury or disease?
The original injury in October 1989 is believed to have been the first significant injury which this man sustained. Basically, he has been suffering ever since from a grumbling lower back problem, which has continued to relate at least in part to the effects of that original injury.”[49]
[49] PCB 150-151
61 The plaintiff submitted that Mr Weaver’s report inaccurately recorded the incidence of the plaintiff’s physiotherapy, in that he had not received a dozen sessions of physiotherapy treatment each year.
62 Mr Weaver provided a second report of 2 September 2009 in which he stated:
“…It has been my belief all along that Mr Carrie had incurred a substantial low back problem during the period of his earlier employment with Herald Roofing, as far back as 1989. There is clear evidence from the 1989 CT scan that even at that stage he was demonstrating elements of L4-5 intervertebral disc pathology and I suspect that this pathology has persisted throughout succeeding years; as time has passed, the problem at L4-5 has been augmented by the appearance of a substantial and frank intervertebral disc prolapse at lumbo sacral level. It has been the latter pathology which has basically required surgical attention on two occasions within recent times; although it is by no means unreasonable that in the second of the operative procedures, as a ‘belt and braces proposition’, Mr Carrie actually ended up undergoing surgery performed at the two separate levels. (Indeed, an attempt has been made to stabilise his spine by insertion of one of the newer interspinous devices.)
Can I refer to one of the comments in Ms. Angel’s report: she suggested… that, ‘during the interview Grant was often confused with dates and events. This needs to be taken into account when reading this report’. I can only make a similar comment with regard to the fact that, for whatever reason, Mr Carrie seems to have disadvantaged himself by the manner in which he has dealt with his problem over the years.
For instance, your letter of 20 August 2009 suggests in point (e) that Mr Carrie allegedly saw his treating physiotherapist on no more than a few ‘one off’ occasions over the period from 1998 to 2004; this account is clearly totally different from the one which Mr Carrie provided me at the time that I first saw him back in March 2006: paragraph 4 on page 2 of that report suggest that he told me that he was obliged to undergo at least a dozen sessions of physiotherapy treatment each year and that I was my understanding that he was in fact providing all of that treatment for himself.
To try and cut the discussion short, I can only reiterate that it is now my belief, and certainly will be until such time as alternative evidence is provided, that in 1989 or thereabouts, Mr Carrie began to experience symptoms of low back pain, possibly accompanied by an element of right sided lower limb pain as well; this problem was presumably referable in large part to pathology involving the L4-5 disc problem. Although he sought treatment at the time, he was not then obliged to undergo surgery to deal with this problem. Nevertheless, my understanding is that he was not then obliged to undergo treatment for that L4-5 disc problem (mainly in the form of physiotherapy) or (sic) succeeding years.
…..
Given virtually 15 years without work restriction or medical treatment between 1989 and 2005, to what extent are the worker’s symptoms a consequence of the injury sustained in 1989 and to what are they related to the injury of 2005?[50]
[50] This highlighted passage is a question asked of Mr Webster by the defendant’s solicitors.
…I continue to believe that a considerable component of Mr Carrie’s back problem does relate to the original employment injury which he sustained as long ago as 1989. For whatever reason, Mr Carrie appears possibly to have ‘missed the bus’ with regard to achieving apportionment of liability for his problem towards that earlier employment period. I note the contradictory accounts which have been provided regarding his alleged treatment requirements, or otherwise over the period from 1989 to 2004.”[51]
[51] Exhibit B
63 On 10 August 2008 Dr R Bittar, consultant neurosurgeon, provided a report to the plaintiff’s solicitors, in which he stated:
“ DIAGNOSIS
In my opinion, Grant Carrie suffers from discogenic lower back pain and right S1 radiculopathy secondary to L5/S1, plus or minus L4/5 intervertebral disc prolapses.
….
In my opinion, his employment prior to November 12 1997, and in particular the injury in 1989, has been a significant contributing factor to his lower back condition.
In my opinion, his employment as a concreter from approximately September 2004 until February 2006, has been a significant contributing factor to the aggravation, acceleration, deterioration and /or recurrence of his previous lower back injury. Specifically, the injury which occurred in October 2005 has been a significant contributing factor.
…
In my opinion, Grant Carrie’s present and future capacity for suitable employment is negligible. … In my opinion, Grant Carrie’s total incapacity for employment is permanent.”[52]
[52] PCB 120
64 There were also a number of medico –legal reports provided by the defendant, from which the plaintiff’s counsel read in his opening. Ultimately these reports were not tendered in evidence and in any event did not give any real assistance to the determination of the point in issue. They included reports by Dr Robert Marshall of 17 August 2006[53] and 21 September 2006[54], a report of Dr David Elder of May 2007[55] and a medico–legal report of Dr Michael Baynes, an occupational physician.[56]
[53] Defendant’s Court Book (DCB) 41
[54] DCB 43
[55] DCB 59
[56] DCB 45, 49 and 52
Plaintiff’s Submissions
65 The plaintiff’s case was that in order to have the knowledge envisaged by s 135A (2)(b) and s 135AC (b), he had to know facts which when viewed objectively establish serious injury capacity, that is means serious injury. While the plaintiff’s condition was serious at the present, it was neither serious and could not have been known to be serious prior to 15 July 2005. It became serious, and became known to be serious, after the surgery carried out in 2006 by Mr Drnda.
66 The plaintiff was able to work with minimal treatment except for some physiotherapy treatment. The medical attendances, when viewed in that context, were not considerable.
67 The plaintiff was able to lead an active life and had been able to work as a tiler and concreter for sixteen years. Even in his last employment he could perform hard work such as shovelling cement. He had worked as a tiler for many years, including loading tiles and putting them on the roof. The roof tiling work required him to bend his back. The plaintiff considered that he had a low level of disability. The X-rays supported that conclusion. The back injury from 1989 had never prevented him doing anything he wanted to do.[57]
[57] T 53 L 23 and T 70
68 Reference to chronic back pain in some of the medical reports was not decisive. “Chronic” meant of long standing and was not referable to the severity of the problem. It might refer to pain that dated back seventeen years, but flared up occasionally.
69 The fact that on a few occasions the plaintiff complained to doctors of constant low back pain was consistent with him seeking medical assistance after a flare up, rather than evidence of any consistent symptoms.
70 The plaintiff’s reasons for joining Frankston Concrete were not connected to his back injury.
71 As at 15 July 2005 the plaintiff had had never been sent to an orthopaedic surgeon and was not receiving ongoing treatment, but experiencing the occasional flare-up of pain and taking the occasional Naprosyn tablet.
72 The plaintiff had continued to engage in jet skiing, snow skiing and motor bike riding.
Defendant’s Submissions
73 The defendant submitted that the plaintiff had to satisfy the requirements of both s.135A(2)(b) and s.135AC(b). The plaintiff bore the onus of proving that he did not have the requisite knowledge at 15 July 2005, being three years before the date of the application.
74 The defendant did not dispute that the plaintiff’s his injury was serious or that there was a causal link between his employment and the injury.
75 The plaintiff had attempted to minimise his medical situation prior to July 2005. He well knew before July 2005 that his back was at risk, if he continued working as a tiler. In July 2005 he was 35 with a long working potential. He knew that exacerbations were likely to occur depending what type of work he was doing.
76 The plaintiff knew that he had a significantly injured back in October 1989. He must have been advised by his doctor at that time that he had significant pathology in his lower back. Over the following sixteen years he had frequent exacerbations of the lower back problems, particularly in relation to his work and he frequently required days off work.[58] He was aware that there was the potential for multiple flare-ups of his back condition.
[58] T 48 L10-12
77 The plaintiff said that if his back was sore he would take a tablet and take a day off work to settle his back down. As the plaintiff was self employed, taking a day off work indicated the severity of the problem. He was required to attend his general practitioner, Dr Mililli, who prescribed medication – Naprosyn – and he attended Mr Leckning to whom he complained of constant pain. The consequences of the 1989 injury were much greater than the plaintiff admitted. They would satisfy the “very considerable test” for the identification of serious injury, because of the length of time that they had persisted and the plaintiff’s ongoing need for treatment.
78 The plaintiff in cross-examination had accepted that Mr Weaver’s letter accurately recorded what he told Mr Weaver about flare-ups and his need to visit the physiotherapist a dozen times a year.[59] That meant between 1989 and early 2006 the plaintiff’s back problems had required on average many physiotherapy attendances each year. That indicated that the plaintiff was experiencing regular exacerbations, or aggravations, of his underlying back condition, many of which were significant.
[59] T 47 L6-23
79 The fact that the plaintiff changed to a lighter job, whether or not it was closer to home, was significant and supported the conclusion that he suffered from a serious injury. The plaintiff’s work at Frankston Concrete was lighter, mainly involving operating a remote control crane which moved heavy objects.[60] The plaintiff was attempting to minimise his problems and well knew that this back was at risk if he continued to work as a tiler. It was particularly relevant that in 2004 he sought lighter work.
[60] PCB 47
80 The defendant submitted that when all the relevant factors were considered or aggregated, they demonstrated that plaintiff knew that the consequences of his injury were considerable. These consequences included the potential for multiple flare-ups and the requirement for ongoing medical and physiotherapy treatment.
Consideration of Evidence and Submissions
81 As previously stated, the issue in the proceeding is whether the plaintiff had knowledge of facts on 15 July 2005, which when viewed objectively, constituted serious injury incapacity. The onus is on the plaintiff to establish that he did not have that knowledge.
82 The plaintiff knew that he had suffered an injury to his back in 1989. He knew that from time to time after that occurrence he suffered flare-ups of lower back pain. In addition, he had been involved in at least three other events at work that had caused him back pain.
83 I accept the plaintiff’s evidence as truthful. On some matters, understandably, he was unable to recall events, some of which occurred almost 20 years ago.
84 The back pain was sufficient to require him to obtain prescriptions of Naprosyn from time to time, and on occasions seek physiotherapy treatment.
85 I am not satisfied that Mr Weaver’s report does record the number of physiotherapy treatments that the plaintiff received. Mr Leckning’s report and records make no reference to such frequency of treatment. There was no suggestion of any other physiotherapist being involved in treatment other than Mr Leckning and Mr Condello. The plaintiff’s evidence under cross- examination was inconclusive on the point.[61]
[61] T47 L 6- 22
86 It would be surprising if Mr Leckning’s report omitted to refer to the fact that he was providing dozens of physiotherapy treatments to the plaintiff.
87 The plaintiff was required to visit his general practitioner on a number of occasions between 1989 and July 2005, but these generally related to particular work incidents.
88 It is true that at the time of his injury on 3 October 1989, the plaintiff was aged 19 years and he therefore commenced to suffer flare-ups of back pain at an earlier point in his life, than might normally be expected of an employee, even one engaged in manual labour.
89 On the other hand, the plaintiff’s work record, which I have summarised above, indicates that he was able to continue manual work until 2005. Even if he had been receiving the frequent physiotherapy recorded in Mr Webster’s report, he was still able to lead a very active life and not a life from which one would conclude that he suffered from serious injury capacity.
90 The fact that in 2004 the plaintiff undertook lighter work with Frankston Concrete is in my opinion equivocal from the point of view of establishing the requisite relevant knowledge. It is certainly consistent with the desire of the plaintiff to avoid the heavy work involved in being a tiler, but even so, it does not prove a knowledge of facts from which the plaintiff ought to have known that he suffered from serious injury incapacity.
91 I also take into account that the evidence suggests that the plaintiff led an active life and engaged in activities such as jet skiing and snowboarding, which one would not expect with someone who suffered from serious injury incapacity.
92 In my opinion the plaintiff has succeeded in showing that he did not have knowledge of facts which, when viewed objectively, constituted serious injury incapacity.
93 I have reached that conclusion for the following reasons.
94 First is the plaintiff’s ability to continue living a normal work and personal life after he recovered from the 1989 injury.
95 Second is the fact that the plaintiff’s own evidence persuaded me that he considered throughout the period from 1989 until 2004 that he had not suffered a serious injury and could continue to live a normal life, although he had a need to take care of his back. He often would go for months without a flare up. I accept the plaintiff’s evidence that he did not realise until he suffered the October 2005 injury that he realised the seriousness of his injuries and the effect they were going to have on the remainder of his working life[62]. In my opinion the credibility of the applicant is particularly important in an application of the present nature. I see no reason to doubt the plaintiff’s.
[62] Plaintiff’s affidavit of 10 July 2008 paragraph 12
96 Third, and connected with the first reason, is the fact that the plaintiff continued to perform the heavy work of tiling until 2004, and thereafter the lighter, but still heavy, work in the concrete business.
97 Fourth, the fact that the plaintiff’s ongoing medical and other treatment was principally taking Naprosyn and receiving physiotherapy. The surgery and other significant medical treatment commenced only after the injury in 2005.
98 Fifth, I do not consider that much weight should be given to expressions such as “chronic pain” occurring in medical reports or referrals. Those terms have to be considered in the context of the overall evidence and the particular events that precipitated the particular medical treatment
99 I therefore find that the plaintiff did not have knowledge of facts prior to 15 July 2005 which viewed objectively constituted “serious injury incapacity”.
100 I therefore grant the plaintiff leave to bring proceedings against the defendant for personal injuries sustained in the course of employment as a result of, and due to the nature of, employment in October 1989.
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