Carter v DP World Australia Ltd

[2013] VCC 680

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-10-00014

DAVID CARTER	Plaintiff
v
DP WORLD AUSTRALIA LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Geelong
DATE OF HEARING:	5, 6, 10 and 11 December 2012
DATE OF JUDGMENT:	14 June 2013
CASE MAY BE CITED AS:	Carter v DP World Australia Ltd
MEDIUM NEUTRAL CITATION:	[2013] VCC 680

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – paragraph (a) of the definition of “serious injury” – right hip injury – issues of the nature and extent of injury, causation and credit – plaintiff seeking leave to commence common law proceedings for “pain and suffering damages” and “pecuniary loss damages”

Legislation Cited:     Accident Compensation Act 1985, s134AB

Cases Cited:            Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242

Judgment:                Leave to the plaintiff to bring common law proceedings for both pain and suffering damages and pecuniary loss damages in respect of a right hip injury suffered by him on or about 7 July 2003.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C W R Harrison SC with Mr A E A  Macnab	Slater & Gordon
For the Defendant	Mr R K J Meldrum QC with Ms S Manova	Wisewould Mahony

HIS HONOUR:

1 By way of Originating Motion issued on 5 January 2010, Mr David Carter (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings to recover damages for an injury to his right hip suffered throughout the course of his employment with DP World Australia Ltd (“the defendant”) and in particular, on or about 7 July 2003 (“the injury”).

2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act.

3       The plaintiff and orthopaedic surgeon, Mr Huw Williams, gave evidence and were cross-examined.  The parties tendered various documents.[1]

[1]See Annexure A

Relevant legal principles

4 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 s134AB(37) of the Act.[2]

[2]See s134AB(19)(a) of the Act

5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:

“…

serious injury means—

(a)     permanent serious impairment or loss of a body function.”

6       The part of the body said to be impaired for the purposes of paragraph (a) is the right hip. 

7       In order to succeed, the plaintiff must prove, on the balance of probabilities that:

(a)“the injury” was suffered arising out of or in the course of, or due to the nature of his employment with the defendant on or after 20 October 1999;[3]

(b)“the injury”, with it resulting impairment, must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]

(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 … [can be] … fairly described as being more than significant or marked, and as being at least very considerable”.[5]

The test for “serious” is sometimes referred to as the “narrative test”.

[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [11]

[4]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at [33]

[5]See s134AB(38)(b) and (c) of the Act

8       In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[6] to establish:

(a)That as at the date of hearing, a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[7] and

(b)that after the date of hearing, the plaintiff will continue to permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[8] 

[6]See s134AB(19)(b) and (38)(e) of the Act

[7]See s134AB(38)(e)(i) of the Act

[8]See 134A(38)(e)(ii) of the Act

9       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 paragraph (c) of the definition of “serious injury”;[9]

(b)must make the assessment of “a serious injury” at the time that the application is heard;[10]

(c)must given reasons which are as extensive and complete as the Court will give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[11]

(d)notes that has been asserted that the question of whether an “injury” satisfies the narrative test is largely a question of impression and value judgment.[12]

[9]See s134AB(38)(h) of the Act

[10]See s134AB(38)(j) of the Act

[11]See s134AB of the Act; the Justice Legislation Amendment (Miscellaneous) Act 2012 (Act No 68 of 2012) repealed s134AE, with the repeal coming into operation on 1 January 2013

[12]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at [628]; Sabo v George Weston Foods [2009] VSCA 242 at [67]

The issues

10      Senior Counsel for the defendant informed the Court that the critical issues were:

(a)an issue of causation as to when the injury occurred, which is associated with credit issues; and

(b)although noting that there was no unanimity as to the capacity of the plaintiff, the position of the defendant was that the plaintiff has a capacity to perform suitable employment earning more than 60 per cent of his “without injury earnings” as defined within the Act.

11      In response to a question from the Court, I was informed that there was not much issue in relation to pain and suffering if the plaintiff should so establish the causation of a relevant compensable injury.[13]

[13]See generally Transcript (“T”) 30, L19-28

The evidence of the Plaintiff

12      The plaintiff adopted his affidavits sworn 1 July 2009[14] (“the first affidavit”) and on 16 November 2012[15] (“the second affidavit”) to be “correct”.[16]

[14]See Exhibit 2, pages 30-34 PCB

[15]See Exhibit 2, pages 34.1-34.9 PCB

[16]T33, L30

13      By way of his first affidavit, the plaintiff gave the following pertinent evidence:

·He is forty-two years old, having been born in January 1971.

·He commenced employment with the defendant as a stevedore in about 2001.

·During the course of his employment with the defendant on 7 July 2003, he suffered a “serious injury to my right hip”.  At the time of injury, he was involved in loading of containers on the ship at Appleton Dock at night, and during the course of such work, fell from a hatch cover to the deck of the ship.

·Following the injury, he returned to work with the defendant, but continued to experience pain and discomfort in his right hip.

·On 21 November 2003, he experienced a worsening of his right hip condition when he bent down to pick up a piece of timber.

·He made incident reports for the incidents on 7 July 2003 and 21 November 2003.  He also made a WorkCover claim in respect to a right hip injury following the incident on 21 November 2003.

·The orthopaedic surgeon, Mr R Brink, performed surgery on his right hip on 21 May 2005.

·He ceased work with the defendant in or about January 2007 as a result of “the injury”.  He continues to be restricted in the nature and duration of the type of work he is able to do.

·The Medical Panel has determined he is only able to work a maximum of 15 hours per week in his current employment and he continues to remain in receipt of weekly payments of compensation.

·He continues to experience pain in his right hip and he has been advised that he will require a total hip replacement.  He is trying to cope with his symptoms as long as he can to avoid the need for surgery.

·His ability to walk, climb, bend, lift or twist is now very restricted, and standing or sitting for long periods is no good for him.

·His recreational and domestic activities are considerably restricted because of the injury.

·He is devastated that he is no longer capable of undertaking the work he did with the defendant, which he enjoyed very much.

·He believes that as a result of his injury, he has suffered a very considerable loss of income, and this loss is ongoing.  He had no intention of retiring early and planned to work beyond sixty-five years of age.

14      By way of his second affidavit, he gives the following pertinent evidence:

·He notes that his lawyers obtained the clinical notes of his treating medical practitioners and with the benefit of such notes, he is able to provide further details of the injury and treatment that he has undertaken.

·In relation to the injury on 7 July 2003, he confirms he was working at Appleton Dock on the afternoon shift.  He describes the circumstances surrounding the injury as follows:

“…I was involved in unloading containers on a ship called the Tasman Chief.  I was required to check a twistlock on a container in Bay 23/25, which was not unlocking properly.  As I was walking across the deck, I was distracted by two workers that were walking underneath the container that was being lifted by a crane.  As I warned the workers of the container overhead, I stepped into a gap in the deck, that I did not see.  I dropped about 4 – 6 feet to the lower deck.  I took the weight of the fall on my right leg, before falling to my left.  As a result of the fall my major concern was pain in my left elbow and knee.”[17]

[17]See Exhibit 2, page 34.2 PCB

·On 8 July 2003, he attended MedicAid Family Medical and Accident Centre and his major concern was his left elbow.  The doctor at the centre arranged for him to undergo an x‑ray of his left elbow at the Geelong Hospital, which he understands revealed no abnormality.

·Over time, his left elbow and knee pain subsided but he noticed increasing pain centred around the outside of his right hip.

·On 21 November 2003, he experienced significantly worse hip pain.  He describes the circumstances of such occurrence as follows:

“… I was required to lift gluts, which are pieces of 4” x 4” timber, approximately 4 feet in length.  During the lifting of the timber I felt a piercing sensation in my hip.”[18]

[18]See Exhibit 2, page 34.2 PCB

·He was unable to continue work and was seen initially by the onsite first aid worker who directed him to go and see a doctor. 

·On 22 November 2003, he attended Dr Nan at the MedicAid Family Medical Accident Centre, who provided him with a certificate to be off work for about five days.  He also prescribed Vioxx and arranged for an x‑ray of the right hip to be undertaken at the Geelong Hospital.  That x‑ray also involved his pelvis and lumbar spine.

·The WorkCover co-ordinator of the defendant recommended that he attend the defendant’s doctor at the Bridge Street Clinic at Port Melbourne, and on 24 November 2003, he consulted Dr Bloom at the Bridge Street Clinic.  Dr Bloom recommended that the plaintiff remain as active as he could and that he should try to lose some weight. 

·When he further attended Dr Nan at the MedicAid Family Medical Accident Centre on 27 November 2003, his symptoms had improved but he still had pain in his right hip.  Dr Nan recommended that he continue to take Vioxx, and he was provided with a further certificate for alternative duties with no heavy lifting.

·On 1 December 2003, he returned to the Bridge Street Clinic, where he was seen by Dr Dvash.  At the time of such consultation, he was working full time driving forklifts but continued to suffer from significant pain in his right hip.  Dr Dvash treated him with an injection of local anaesthetic and cortisone in the right hip and also recommended that he seek physiotherapy at work.  He also provided an anti-inflammatory gel and tablets.  Dr Dvash certified him fit for modified duties but he was to avoid squatting and climbing activities.

·On his return to work, he was at times required to undertake heavy lifting and at “one stage” he was required to lift some heavy beams with a co‑worker but was unable to cope with this activity because it caused his hip pain to worsen.

·On 4 December 2003, he lodged a WorkCover claim in respect to his right hip injury and such claim was accepted.

·On 5 December 2003, he again attended Dr Dvash, who provided him with a certificate that he could continue to drive the forklift but there was to be no repeated bending or lifting greater than 5 kilograms.

·Because of continuing symptoms in his right hip, he was referred to the orthopaedic surgeon, Mr Shay Zayontz, who he initially saw on 24 December 2003.  Mr Zayontz arranged for him to undergo an MRI scan on 28 January 2004 and subsequently, he received a telephone call from Mr Zayontz that there was nothing he could for him “surgically”.

·He continued to attend the Bridge Street Clinic for prescriptions and certificates and became increasingly “frustrated” due to his ongoing right hip and ultimately sought a referral to the orthopaedic surgeon, Mr Rodney Brink. 

·He first attended Mr Brink on 30 November 2004, at which time Mr Brink recommended arthroscopic surgery.  Mr Brink recommended that the surgery be undertaken by Mr David Young, an orthopaedic surgeon experienced in that type of surgery.  He underwent such surgery on 21 May 2005 and he understands such surgery involved arthroscopic acetabuloplasty and debridement of the bony rim lesion.  He was in hospital overnight before being discharged.

·When initially reviewed by Mr Brink, he was advised that it was likely that at some stage in the future he would need a hip replacement.  He was off work after the surgery for about two weeks and ultimately, Mr Brink certified him fit for normal duties but was told that he should permanently try to avoid heavy lifting, high impact and crouching in confined places. 

·After the surgery, he initially obtained a “pretty good result” and although he was still suffering pain in his right hip, it was not as bad as it was prior to the surgery.  He did have flare-ups and required pain relief and anti-inflammatory medication.  He also notes that he sometimes used “alcohol to help me cope with my symptoms”.

·He was very keen to continue working for the defendant but notes that as time went on, his right hip pain became worse.

·On 8 January 2007, he again consulted Mr Rodney Brink, who prescribed Naprosyn, Panadeine Forte and Tramadol to help cope with his symptoms.

·As he had moved from Belmont to Lara, Mr Brink recommended he attend Dr Davies at the Lara Medical Centre, who he initially saw on 16 February 2007.

·In late 2006, he was required to undergo an assessment to ascertain whether he could continue working as a stevedore, and in about January 2007, he was advised that due to his level of restrictions, the defendant was unable to locate suitable duties for him.

·He was subsequently put onto WorkCover payments and was “very upset by this decision” as he had worked very hard to remain at work with the defendant, notwithstanding his ongoing symptoms.

·He continued to seek treatment from Dr Davies until about October 2007. 

·In about April 2007, he moved to Bendigo, where he purchased the leasehold of the New Victoria Hotel in Eaglehawk.  He initially continued to travel from Bendigo to Lara to see Dr Davies but eventually commenced to consult with Dr Daw, a general practitioner at the Bendigo Community Health Services.  He first attended Dr Daw on or about 12 May 2008. 

·He lived and worked at the hotel over a period of about three years, during which time he was the owner/manager and was able to determine what duties he could undertake.  He undertook mainly clerical duties whilst running the hotel, as there was “no way” he would be able to cope with unrestricted duties as a barman.

·The business was not successful and he lost a substantial amount of money and ultimately he was evicted in about late 2010.  Dr Daw arranged for him to undergo further x‑rays of his right hip and pelvis on 9 July 2009, 24 November 2010 and 26 March 2012. 

·He was unable to be referred back to Mr Brink, who was unwell, and he was referred to an orthopaedic surgeon, Mr Williams, who he first consulted on 7 June 2011.  At that time, Mr Williams recommended that he undergo a manipulation under anaesthetic and an injection of cortisone, and this treatment was undertaken on 9 August 2011.

·As time has gone on, he has become depressed, anxious and frustrated and has been prescribed anti-depressant medication.  Furthermore, he has also seen a counsellor due to problems with alcohol and financial difficulties.

·After being evicted from the hotel, he undertook some work as a labourer on and off for a short period.  He subsequently obtained work operating earthmoving equipment, but this only lasted six weeks as he was unable to cope sitting for lengthy periods and climbing in and out of the trenches and machinery.  Such work came to an end in or about May 2011.

·He then had some casual intermittent labouring work until about December 2011 but struggled with the physical requirements of such work.

·In 2012, he started to work with a friend at his butcher’s shop, initially on a voluntary basis, and he is now working about 12 hours per week. 

·He is currently prescribed Effexor and from time to time he takes painkillers to help cope with his symptoms.

·He continues to suffer from pain in his right hip, which travels from the side of the hip to his buttock region, and the pain in constant.  The intensity of the pain varies from day to day and his ability to sit, stand or walk for lengthy periods remains restricted.

·He struggles to walk up and down stairs or use ladders and has difficulty squatting or crouching.

·As time goes by, he feels his symptoms are gradually getting worse and he has a four-year-old daughter who he struggles to play and interact with as he would like to. 

·He lives in a rental house with his wife and daughter and only has a very restricted ability to undertake home maintenance and gardening activities. 

·Prior to suffering the injury, he used to particularly enjoy sailing and playing golf, which he is no longer able to undertake.

·He is concerned about the prospect of a hip replacement at a young age.  He understands hip replacements do not “last forever” and he may require more than one hip replacement in his lifetime.

·As a result of his injury, he will never be able to return to work in unrestricted duties as a stevedore.  Furthermore, over the years he has always relied on his ability to undertake manual-type work to earn a living and does not believe he has a capacity to return to full-time work because of his ongoing symptoms.  He believes “at best” he will be capable of working on a part-time basis in the future.

·He completed the equivalent of Year 12 at Belmont High School and after leaving school undertook an apprenticeship as a chef.  He has worked as a chef in Melbourne, Geelong and Queensland, and also has worked in mines, restaurants and a hospital.

·In 1999, he suffered an injury to his low back in Queensland and subsequently lodged a claim and received a settlement of such claim in April 2005.

15      Beyond his affidavit material, the plaintiff also gave further viva voce evidence-in-chief.  Initially he was asked whether he had any memory of pain in his right hip after a back injury he suffered in 1999, to which he answered “No”.  In particular, the following evidence was given:

Q:“If there are records that you complained of pain in your right hip on 5 August and 4 September 2000, what do you say about that?---

A:I saw them yesterday when I was with you.

Q:What do you say about whether or not those reports are likely to be accurate or correct?---

A:They would be right.

Q:I should say August was hip and September was groin.  The same comment[s] apply, you believe they’d be right?---

A:Yes.

Q:If it records you as reporting a hip pain of eight out of ten at that time, what do you say about whether that’s likely to be right?---

A:If it’s there, it’s right.”

HIS HONOUR:

Q:“I want to understand this.  What you are being asked is these earlier reports before your accident as a stevedore, and you are being asked, as I understand it, it’s being read back to you what the doctors have recorded.  Are you saying that recording is an accurate recording, is that what you said?---

A:Not really because it’s a different pain altogether, it’s through the same location but the pain I’ve got from when I fell off the ship was in the side of my hip.  The pain I got from before was going from my back all the way down to my ankle and it was all through my leg.

Q:I want you to take your time and tell me the best you can.  Prior to when you fell as a stevedore, what this claim is all about, as far as you are concerned did you ever have any right hip pain?---

A:No.”[19]

[19]T34, L5-29

16      The plaintiff also gave evidence that following the July 2003 incident when he fell through one of the hatches, he experienced a “grinding feeling” in his right hip.  In particular, the following evidence was given:

Q:“You said you had a grinding feeling.  Was there any other sensation there?---

A:Not in my hip.

Q:Was the grinding feeling comfortable?---

A:No.

Q:Was it painful?---

A:Yes, it hurt but I didn’t want to lose my job so I didn’t - - -

Q:Did you attend the Medicaid Clinic in 2001 and 2002 when you had problems in Geelong, any medical problems?---

A:Yes.”[20]

[20]T36, L19-29

17      The plaintiff was also shown a Statement of Claim dated June 2003 filed on his behalf in relation to the back injury suffered by him Queensland in 1999.  The plaintiff gave evidence that he had only seen that document the day before and prior to that, had no knowledge of it whatsoever.  In particular, he was questioned about the allegation contained in such Statement of Claim that he “had suffered and continues to suffer with pain in his right leg” and said such allegation was not “accurate”.

18      Furthermore, the plaintiff was queried about the allegation in the Statement of Claim that he was previously a “keen golfer” up to the 1999 back injury but could no longer play golf because of the back pain.  When asked whether such was the case, the following evidence was given:

A:“No, I could play golf.”

MR HARRISON:

Q:“How often were you playing golf before you ’99 injury?---

A:Three or four times a week.

Q:What sort of handicap?---

A:Down to the low – high two’s.

Q:Does that mean 20 something?---   

A:No, single handicap.

Q:What sort of handicap were you on after - - -.”

HIS HONOUR:

Q:“What, you were playing off 2 or 3?---

A:Yes, 2.8 was the best I got to.”

MR HARRISON:

Q:“What were you playing after the ‘99 injury?---

A:Probably about the 20, 21 mark.”[21]

[21]T38, L1-10

19      The plaintiff was also queried about the assertion in the Statement of Claim that he was not working since the back injury in 1999.  The plaintiff gave evidence that he had returned to Townsville and had taken up a position at La Cucina, and later returned to Geelong, where he started performing part-time work driving forklifts at a wharf.  At the time of his injury in July 2003, he was a guaranteed wage earner working nearly full-time hours.

20      The plaintiff also gave evidence that he is working currently for “Meat Matters”, which is a business owned by a friend, and he initially started there because his friend was worried about his “wellbeing”.  The friend had initially supplied him during his time at the hotel, and at the time of his eviction, he owed such friend a considerable amount of money.  When he commenced working, it was essentially to pay off the debt.  He is now getting paid, working about 12 hours per week over three or four days.  He gets paid $250 a week gross and has been doing such work since March 2012.  He only commenced to be paid from approximately October 2012.  In particular, the following evidence was given:

Q:“How do you cope with it?---

A:I struggle through.

Q:Do you reckon you could do five days a week, eight hours a day on a delivery van?---

A:No.

Q:Why not?---

A:It’s just too hard on me, it hurts me too much.

Q:Hurts what?---

A:My hip.

Q:Which hip?---

A:The right one.”[22]

[22]T40, L15-20

Further material

21      Before setting out the cross-examination of the plaintiff by Senior Counsel for the defendant, I consider that it is appropriate to set out various materials relied on by the defendant to establish that the plaintiff had right hip pain and restriction prior to his injury on 7 July 2003 and furthermore, to set out the treatment undertaken by the plaintiff in respect to his right hip injury.  Such matters were referred to in the cross-examination of the plaintiff. 

(a)       The previous back injury

22      The plaintiff suffered a back injury on or about 21 April 1999 when employed as a chef/general kitchenhand by a company which supplied catering services at the Century Zinc Mine site in Lawn Hill, Queensland.  I refer to various documents relevant to such claim:

(i)Records from the Mount Isa Base Hospital recording that the plaintiff attended that hospital on 23 April 1999 complaining of “back pain”.  He was given a certificate off work and underwent an x‑ray of the lumbosacral spine.[23]

[23]See Exhibit 7, pages 130-135 PCB

(ii)A letter from Dr Jackson to “Whom it May Concern” dated 27 April 1999 recording that the plaintiff had a “muscular back problem sustained at work”.[24]

[24]See Exhibit 7, page 136 PCB

(iii)A CT scan of the lumbar spine undertaken on 17 May 1999 which revealed a minor annular bulge at the L4-5 level and a minor annular bulge at the L5-S1 level where there is a central disc protrusion extending slightly to the right of midline where compromise of the right descending S1 nerve root is noted.[25]

[25]See Exhibit 7, page 137 PCB

(iv)A report from Dr Paul Patane dated 7 June 1999, who notes that the plaintiff consulted his practice on 8 May 1999 complaining that he had injured his low-back three weeks prior to the consultation.  Examination revealed mild muscular spasm in the lumbar spine and bilateral restricted straight leg raising.  There was no neurological deficit.  He arranged for the CT scan to be undertaken on 17 May 1999.

When reviewed on 5 June 1999, the symptoms had “greatly reduced” and Dr Patane certified him fit to return to work on modified duties.

A further report from Dr Paul Patane dated 29 January 2001 to WorkCover Queensland notes that Dr Patane last consulted with the plaintiff on 4 September 2000.  In that consultation, Dr Patane records that there was discussion about the plaintiff’s recent visit to a neurosurgeon, and the plaintiff mentioned “he had some right groin soreness.”  (my emphasis).

Dr Patane notes that the plaintiff had also consulted him earlier that year on 16 May 2000 with complaints of back pain “on and off” and Dr Patane notes that he was also showing signs of “depression”;[26]

[26]See Exhibit 7, pages 138-139 PCB and page 165 PCB

(v)A report from the orthopaedic surgeon, Mr R J Gibberd, who initially examined the plaintiff on 8 June 1999 on behalf of WorkCover Queensland.[27]  Mr Gibberd obtained a history that the plaintiff was lifting heavy bags out of the wheelie-bin on 21 April 1999 and, after jerking one particular bag, felt a twinge in his lower lumbar spine and later, quite severe pain radiating down the right leg.  The plaintiff also gave a past history of stiffness in the lower lumbar spine.

[27]See Exhibit 7, report dated 9 June 1999, pages 140-141 PCB

Examination at that time revealed some pain on lumbar movement, restricted back movement, an absent right ankle jerk and a possible decrease of sensation of the right S1 dermatome.  Furthermore, there was restricted straight leg raising on the right side.

Mr Gibberd examined the previous CT scan which he thought confirmed sequestration of the L5-S1 disc on the right side.  He considered that the plaintiff was “genuine in his complaints” and he had definite organic signs of an L5-S1 sciatica as a result of the work injury. 

Mr Gibberd further examined the plaintiff on 4 November 1999.[28]  During examination at that time, Mr Gibberd records in particular, that the hips were clinically normal and that “flexing the hip and knee did not increase the pain.  He had a normal hip joint.  He could walk comfortably on heels and toes.”  (my emphasis).

[28]See Exhibit 7, report dated 5 November 1999, pages 144-145 PCB

(vi)A physiotherapy management plan dated 11 October 1999 seemingly detailing treatment for spinal mobilisation.

(vii)A report from Dr I S Fraser dated 13 October 1999 addressed to WorkCover Queensland.[29]  Dr Fraser records that the plaintiff was seen by his locum on 8 May 2009, 14 May 2009, 24 May 2009 and 4 June 2009.  Dr Fraser actually examined the plaintiff on 1 October 1999.  From the notes of his locum and his own examination, he records the plaintiff was complaining of low-back pain.  Examination revealed reduced bilateral straight leg raising and normal reflexes.

[29]See Exhibit 7, page 143 PCB

(viii)A report from Dr I N Clarke dated 2 January 2000 addressed to WorkCover Australia, wherein he records that he examined the plaintiff on one occasion on 17 November 2000, at which time he complained of a back injury which had been suffered in 1999.  At that time, he wished a referral to a psychiatrist.[30]

[30]See Exhibit 7, report dated 2 January 2000, page 146 PCB

(ix)CRS physical upgrade report completed on 23 June 2000 which records that the plaintiff was referred by his “case manager” to clarify his “current status” and provide advice on rehabilitation strategies.[31]

[31]See Exhibit 7, report dated 23 June 2000, pages 147-148 PCB

Examination undertaken by the physiotherapist (Riri Santoso) revealed “normal” left and right hips. (my emphasis).  Examination did reveal tenderness throughout the lumbar spine and some restriction of lumbar spine movement.

(x)A functional capacity evaluation report undertaken by an occupational therapist, Ms Robyn Cording, on 5 August 2000.[32]

[32]See Exhibit 7, report dated 13 September 2000, pages 154-159 PCB

The plaintiff gave a history that he injured himself on 20 March 1999 and the injury was described by him as a lower back muscular ligamentous strain with a disc bulge at L5-S1.  The occupational therapist records the plaintiff experiencing pain in his low back and “he gets pain in his right hip”. (my emphasis).  The occupational therapist states that the right hip pain “could be a possible strain and he has been provided with exercises and stretches to assist in diminishing this pain”.

The occupational therapist records that physical examination of the plaintiff demonstrated a reduced range of motion in forward trunk bending, lateral trunk bending, right hip abduction and adduction and right knee extension.  (my emphasis).

The occupational therapist records that the plaintiff, 24 hours post assessment, rated his “right hip pain as 8 out of 10”.  (my emphasis). 

The occupational therapist also records that when walking, the plaintiff was observed to walk on the flat at a fast pace with a large arm swing and a “limp” for ten minutes.  Furthermore, when talking of “controls” of the foot/leg, the occupational therapist notes “due to right hip pain it would appear that his capacity would be reduced.”  (my emphasis).

(xi)Report of the psychiatrist, Dr William Rowe, addressed to Queensland WorkCover in respect to an examination on 6 December 2000.[33]

[33]See Exhibit 7, report dated 13 December 2000, pages 160-164 PCB

At that examination, the plaintiff gave a history of pulling bags of rubbish out of a wheelie-bin when he jerked his back and felt pain in his back.  In particular, when he straightened up, the pain was worse and he felt some discomfort down the right leg.

(xii)Report from the orthopaedic surgeon, Dr John Maguire, who examined the plaintiff on 11 December 2003.  Such a report was for medico-legal purposes in relation to the back injury.

Dr Maguire obtained a history of the plaintiff lifting a bag out of the wheelie-bin on 21 April 1999, during which time he hyperflexed when one of the bags became stuck, causing him severe and sudden pain in the low-back region.  Further, there was an associated right leg pain which he described as “severe”.  Dr Maguire noted that the plaintiff complained of a constant aching in the lumbosacral region, together with periodic right leg pain and numbness.  Approximately one to two times a month he gets “significant spasm and pain the lower back region”.  Dr Maguire also noted that he was on WorkCover for an unrelated injury.  (Most probably the right hip injury in Victoria.)

Examination revealed tenderness at L5-S1, significant spasm of the right paraspinal muscles, limited flexion, reduced lateral flexion and reduced bilateral straight leg raising, although worse on the right side.  Furthermore, there was found decreased ankle jerk on the right compared to the left and sensory changes of the lateral fall of the right foot and weakness of eversion of the foot, consistent with injury to the S1 nerve root.  In a later report dated 12 February 2004, Dr Maguire notes that he examined the CT scan dated 13 May 1999 which, according to him, revealed moderately large disc protrusion from the central right paracentral with irritation of the transiting S1 nerve root.  He considered such finding to be consistent with the neurological deficits that he noted on examination.

(xiii)Report of the orthopaedic surgeon, Mr William G Doig, who examined the plaintiff on 28 May 2004 on behalf of solicitors in Queensland.[34]  No history was given to Mr Doig of any hip injury or hip complaints following the low-back injury.

[34]See Exhibit 7, report dated 31 May 2004, pages 175-176 PCB

(xiv)Report of Dr Carl Grace dated 29 June 2004.[35]  Dr Grace notes that he first consulted with the plaintiff on 14 October 2000 when he was complaining of back pain due to a back injury which occurred on 21 April 1999.  He was later seen on 23 February 2001 and 19 April 2001 for totally unrelated conditions.  The plaintiff was seen by his locum, Dr David Soo, on 27 July 2001 with complaints of low-back pain.

[35]See Exhibit 7, pages 178-179 PCB

In particular, the plaintiff consulted Dr Grace on 8 July 2003 complaining of having a fall at work injuring his left elbow.  An x‑ray was arranged on 8 July 2003 at the Geelong Radiological Centre which demonstrated no injury to that joint.  Dr Grace notes that between 8 July 2003 and 31 May 2004, the plaintiff was seen on some six occasions, and on most of these occasions the conditions were totally unrelated to his previous back problem, although he did on several occasions continue to complain of low-back pain.

(xv)The Statement of Claim filed on behalf of the plaintiff on 25 June 2003 in Townsville in relation to the back injury suffered by him in 1999.  It alleged, in part: 

– he had suffered and continues to suffer pain and stiffness in the right hip

– he was previously a keen golfer but can no longer play golf because of back pain

– because of his injuries he has been unable to work for the whole time, in the heavier chef-type positions.

The Statement of Claim is signed by solicitors and was settled by counsel.

(b)    Various radiological examinations undertaken by the Plaintiff

(i)CT scan of the lumbar spine dated 17 May 1999.[36]  Such scan, as already indicated, showed a minor annular bulge at the L4-5 level but no focal protrusion, whereas at the L5-S1 level, there is a minor annular bulge with disc protrusion extending slightly to the right of the midline where compromise of the right descending S1 nerve root is seen.

[36]See Exhibit 3, page 35 PCB

(ii)CT scan of the lumbar spine dated 1 August 2001.[37]  Such scan was reported as showing no abnormality of significance.

[37]See Exhibit 3, page 36 PCB

(iii)Plain x‑ray of the left elbow dated 8 July 2003.[38]  The x‑ray is reported as showing no bony injury demonstrated and no joint effusion.

[38]See Exhibit 3, page 37 PCB

(iv)X-ray of the pelvis and right hip and lumbosacral spine dated 22 November 2003.[39]  Views of both hips, and in particular views of the right hip, show preservation of the joint space of the right hip.  In particular, the reviewer states:

[39]See Exhibit 3, page 38 PCB

“…An additional ossicle is seen in relation to the lateral margin of the right acetabulum, I suspect this is a normal variant and is unlikely to be causing symptoms.  No bony lesion is seen.”

(v)MRI scan of the right hip dated 28 January 2004 (on referral from Mr S Zayontz).[40]  The MRI scan is said to have shown:

[40]See Exhibit 3, page 39 PCB

“… a 14 x 12 x 8mm ossification with a corticated margin in the region of the anterolateral acetabular labrum.  A cleft of high signal between this and the adjacent lateral acetabular margin is present.  This suggests there is either a deficient acetabular labrum in this location or there is an associated basal labral tear.  There is also associated mild subchondral cystic change and subchondral bone oedema in the anterolateral acetabular roof with thinning of the acetabular cartilage. 

There is no evidence of trochanteric bursitis or other significant periarticular pathology.”

(vi)X-ray of the pelvis and right hip (referred by Mr R Brink) dated 9 January 2007.[41]  Such x‑ray reveals an ossific fragment projected at the anterior superior aspect of the right femoral neck.  Associated with this the lateral margin of the acetabulum on the right appears deficient.  These findings raise the possibility of a prior fracture of the acetabular rim.  Associated with this there appears to be mildly reduced joint space in the lateral aspect of the right hip joint although there is no other osteoarthritic change.  The left hip joint was essentially normal.

(vii)X-ray of the right hip dated 9 July 2009.[42]  The reviewer notes that a free bone fragment is located superior to the greater trochanter on the right and likely related to prior trauma.  There are mild bilateral degenerative changes of hip joints with no acute fracture or destructive lesions seen.

(viii)X-ray of the pelvis and both hips on 24 November 2010.[43]  The reviewer notes the comparison with the earlier examination in 2009 confirms the presence of minor osteoarthritic change, particularly in the weight bearing aspect of the right hip with no evidence of interval trauma.

(ix)X-ray of the pelvis and right hip dated 26 March 2012.[44]  The reviewer notes coarse calcification is noted on the lateral capsular margin of the right hip and may be the result of past trauma.  The hip joint revealed minimal osteoarthritic change.

(x)CT scan of the lumbar spine dated 27 March 2012.[45]  The reviewer concluded that the scan showed L5-S1 degenerative change with no significant disc prolapse or nerve root compression.

[41]See Exhibit 3, page 41 PCB

[42]See Exhibit 3, page 42 PCB

[43]See Exhibit 3, page 43 PCB

[44]See Exhibit 3, page 45 PCB

[45]See Exhibit 3, page 46 PCB

(c)    The medical treatment of the Plaintiff in relation to his right hip

23      As I have already noted earlier in this judgment, Dr Carl Grace, in a report dated 29 June 2004,[46] records that the plaintiff attended at the MedicAid clinic in Geelong on 8 July 2003, reporting that he had a fall at work injuring his left elbow.  An x‑ray undertaken on the same day demonstrated no injury to that joint.  I note the following attendances:

[46]See Exhibit 7, pages 178-179 PCB

(i)In a report from Dr A Nan (also from the MedicAid clinic) dated 3 November 2004,[47] it is recorded that the plaintiff attended that clinic on 22 November 2003 with “marked limping and complaining of severe pain in his right hip … .”.  Dr Nan obtained a history that it was caused by “heavy lifting at work the previous day”.  Furthermore, the plaintiff, at that time, gave a history of having employment-related back problems with another employer.

[47]See Exhibit 4, pages 47-48 PCB

Examination at that time revealed tenderness at the front of the right hip joint with limited painful movement.  Dr Nan referred the plaintiff for x‑ray of the pelvic bones, hip joints and lumbosacral region, which revealed, according to him, a normal pelvis and hip joints but some abnormality in the lumbar spine.  Dr Nan diagnosed a sprained right hip joint and prescribed anti-inflammatory medication. 

On review on 27 November 2003, the plaintiff reported that he had improved a great deal with only mild discomfort remaining.  Dr Nan advised him to continue with the anti-inflammatory medication and suggested alternative duties with no heavy lifting for one week.

(ii)A report from Dr Paul Mestitz from Barwon Health[48] records that the plaintiff came to the Emergency Department of the Geelong Hospital on the afternoon of 22 November 2003 to undergo an x‑ray of his pelvis, right hip and lumbosacral spine on referral from his medical practitioner.

[48]See Exhibit 4, page 54 PCB

(iii)The plaintiff also relies on reports from the Bridge Street Clinic dated 24 November 2003[49] and 22 March 2005.[50]

[49]See Exhibit 4, pages 49-53 PCB

[50]See Exhibit 4, page 55-58 PCB

The plaintiff attended the Bridge Street Clinic on 24 November 2003 and gave a history to Dr Bloom that he was employed at P & O Ports the previous two years as a part-time stevedore, working on latchings, as well as performing forklift work and some clerking.  He was averaging about 30 hours of work per week.  Furthermore, he gave a history that on 21 November 2003, at work, while straightening up from picking up a glut, he felt very sharp stabbing pain in the vicinity of his right hip.  Such pain persisted and eventually started radiating down his right leg to his right calf.  He had attended his local clinic, had been referred for x‑rays and commenced on anti-inflammatory tablets.  Although his condition had “significantly improved”, he still felt persisting intermittent pain in the vicinity of the right thigh.

In particular, he gave a history that he had injured his low back in a lifting accident some four-and-a-half years ago and he had been informed that he had a “disc bulge at the L5-S1 region”.  However, the low back had improved over a period of approximately six months, but since that time, he had suffered some intermittent pain in his low back.  In particular, the plaintiff gave the following history:

“Approximately two months ago, whilst working for P&O Ports, he stepped into a space on the deck of a ship and fell a height of approximately 6 feet onto his right foot and right side.  He knocked his left elbow on some steel on the way down.  Since that time he has complained of some pain in his right knee, but he feels that he has recovered from the bulk of the injuries sustained in that fall.”[51]

[51]See Exhibit 4, page 50 PCB

Examination of the right hip revealed tenderness at the origin of the gluteal muscles and just behind the greater trochanter of the right hip.  There was unrestricted and pain-free range of movement of the right hip.  Dr Bloom inspected the hip x‑rays undertaken on 22 November 2003 and considered they demonstrated evidence of an ossicle lying adjacent to the upper part of the right hip, although “of doubtful significance”.

Dr Bloom diagnosed the plaintiff to be suffering from some low-back pain and pain “in the region of his right hip”.  He considered that the exact diagnosis was not “fully clear” but believed the pain was most likely referred from his low back into the hip and his leg, although there was no evidence of nerve root compromise or neurological deficit.

Dr Bloom considered the plaintiff fit for work but with some medical constraints.

The plaintiff re-attended the Bridge Street Clinic on 1 December 2003 when it was noted that his low-back pain had improved but he was having ongoing problems with his right hip relating to his posture.  At that time, examination by Dr Dvash revealed tenderness over the posterior aspect of the right hip with full range of movements, although pain on extension and rotation movements only.  At that time, Dr Dvash diagnosed an inflamed right hip, and the plaintiff was treated with an injection of local anaesthetic and Celestone Chronodose, also further prescriptions of anti-inflammatory medication.  Dr Dvash notes that there was no particular improvement in the right hip condition and the plaintiff was given WorkCover certificates to perform modified duties.  Dr Dvash ultimately referred the plaintiff to the orthopaedic surgeon, Mr S Zayontz, who arranged for an MRI scan of the right hip and later informed both the doctor and the plaintiff that he did not consider than operation on the right hip was necessary at that time.

Dr Dvash notes that in February 2004, the plaintiff was working 12-hour shifts and travelling three hours a day and this was causing increasing pain in the right hip and he was advised to lose weight.  Later still, Dr Dvash referred the plaintiff to the orthopaedic surgeon, Mr Brink.

Dr Dvash was of the opinion that the plaintiff suffered a right hip injury as a result of the incident at work in November 2003 and that such work was a significant contributing factor to that injury. 

(iv)The plaintiff relies on a report from the orthopaedic surgeon, Mr Shay Zayontz, dated 2 December 2004.[52]

[52]See Exhibit 4, pages 64-66 PCB

Mr Zayontz examined the plaintiff on 24 December 2003 and obtained the following history:

“Mr Carter was 32 years of age when I first saw him.  He worked as a Fork lift driver on the wharf.  Two to three months prior to his presentation to me he had a fall at work from a height of approximately six feet, on a ship.  Approximately two months later, on 21st November 2003, he was lifting two pieces of timber.  He ‘grabbed the muscle up the back’.  Since that time he has had a right hip jabbing pain.  He had two cortisone injections as well as physiotherapy had no relief.”

The plaintiff complained of pain posterior to the greater trochanter which was causing particular difficulty when he was driving to work from Geelong.  Examination revealed tenderness over the posterior aspect of the greater trochanter to palpation and there was pain in that region on forceful abduction of the hip.  After viewing the earlier x‑rays, which revealed a bone fragment over the lateral aspect of the right hip joint, Mr Zayontz considered that the differential diagnosis for the pain in the hip was either trochanteric bursitis, although it was possible he may have a “labral tear or pain associated with degenerative changes in the hip”.  Mr Zayontz arranged for the plaintiff to undergo an MRI scan of the right hip which revealed a small area of ossification in the anterior lateral acetabular labrum.  He noted that there was an abnormal signal in the labrum that suggested an associated labral tear.  Furthermore, he considered that there degenerative changes in the anterolateral acetabular roof.  Mr Zayontz concluded:

“In summary, Mr Carter presented to me on 24th December 2003 as a 32 year old gentleman with a one month history of right hip pain.  This commenced after lifting two pieces of timber at work.  Subsequent investigations revealed that the pain is most likely to be related to early degenerative changes in the right acetabulum.  No orthopaedic intervention was required.”[53]

[53]See Exhibit 4, page 65 PCB

(v)The orthopaedic surgeon, Mr Rodney Brink, initially consulted with the plaintiff on 30 November 2004 on referral from Dr M Dvash at the Bridge Street Clinic.  The plaintiff relies on a series of medical reports and letters from Mr Brink to Dr Dvash dated 2 December 2004,[54] 24 May 2005,[55] 11 July 2005[56] and 22 August 2005.[57] He further relies on the operation report of Mr David Young and Mr Rodney Brink dated 21 May 2005,[58] and various other reports of Mr Brink dated 21 February 2006,[59] 6 February 2007,[60] 6 February 2007,[61] 7 February 2007 (to Dr Mark Davies),[62] 8 May 2007[63] and 24 May 2007.[64]

[54]See Exhibit 4, pages 67-68 PCB

[55]See Exhibit 4, page 71 PCB

[56]See Exhibit 4, page 72 PCB

[57]See Exhibit 4, page 73 PCB

[58]See Exhibit 4, pages 69-70 PCB

[59]See Exhibit 4, page 74 PCB

[60]See Exhibit 4, page 75 PCB

[61]See Exhibit 4, page 76-77 PCB

[62]See Exhibit 4, page 78 PCB

[63]See Exhibit 4, page 79 PCB

[64]See Exhibit 4, pages 80-81 PCB

At the initial consultation, Mr Brink and obtained the following history:

“In November 2003 he was walking on the deck of a New Zealand maritime vehicle and failed to notice that a steel flap on the deck had been removed, so he fell down through a height of about 6 feet, landing on the right foot, jarring the hip.  He landed with the knee straight and hurt his elbow.  After a couple of weeks the elbow was getting better, but the hip was getting worse and has remained troublesome as described above.”[65]

[65]See report dated 2 December 2004, page 67 PCB

He also gave a history that he could not play any more than 13 holes of golf without pain and by the end of 18 holes he is very sore.  The hip pain is aggravated by sitting in cold weather and eased by warmer weather and swimming.  He limps after walking when he first gets up from sitting and he has been forced out of his recreational weekly sailing with the Royal Geelong Yacht Club.

At work he had to cut back his activities and can pretty much only drive a forklift as he can no longer drive bobcats and excavators into holes because he cannot climb up and down ladders.  Furthermore, he was no longer able to work as a general hand down below or on the wharf doing certain jobs.  Squatting was impaired. 

Mr Brink examined the plain x‑ray of the hip on 20 November 2003, which he considered revealed a normal looking hip and acetabulum but a superior lateral ossicle which was confirmed after viewing the MRI scan taken on 28 January 2004.

Examination showed that his hip flexion was only mildly reduced compared to the other side, and he concluded:

“He has radiological appearances which appear well established two weeks after the injury and are therefore of uncertain significance in relationship to the injury.  However, there is a clear cut history of injury with significant symptomology since the injury which would logically be expected to have been produced by a significant force involved in the injury in a fall through six feet. . .”[66]

[66]See report dated 2 December 2004, page 68 PCB

Mr Brink recommended arthroscopic surgery, which was undertaken in conjunction with the orthopaedic surgeon, Mr David Young, on 21 May 2005.  The operative findings involved a degenerative labrum with significant flaking articular cartilage antero superiorly with approximately one third of articular cartilage lost on the superior weight bearing area of the acetabulum.  A large mobile acetabular was encountered and moderate synovitis present in the joint.  Such findings represented a Grade II Rim lesion.[67]

[67]See report dated 21 May 2005, PCB 69

In a later report,[68] Mr Brink interpreted such findings to be consistent with a stress fracture of the rim of the acetabulum with traumatic full thickness articular chondral damage adjacent to the stress fracture.  Mr Brink noted that the plaintiff experienced a dramatic reduction in his pain after the surgery and the plaintiff was keen to get back to work as soon as possible. 

[68]See report dated 24 May 2005, PCB 71

When reviewed on 22 August 2005,[69] Mr Brink notes that he discharged the plaintiff and certified him to return to work on his normal work duties but with a recommendation that he permanently avoids very heavy lifting and heavy impact loading and crouching in confined spaces, or other activities that required him to go to extremes of range of movement of his hip joint.

[69]See report dated 22 August 2005, PCB 73

In his report dated 6 February 2007,[70] Mr Brink opines that the right hip condition of the plaintiff is related to the incident of “2003” and is still related to or contributed to by that employment.

[70]See report dated 5 February 2007, PCB 75

Mr Brink subsequently notes that although the plaintiff did well initially, there had been some inevitable deterioration and that the plaintiff was progressing towards a post-traumatic osteoarthritic hip.  In response to a request from the return to work co-ordinator with the defendant, Mr Brink noted that the plaintiff had early osteoarthritis which was post-traumatic and that condition would make it difficult for him to stand or walk for more than a short time, move quickly or twist and turn in confined spaces.  Furthermore, anyone with an arthritic hip would be advised to avoid heavy lifting, jarring and twisting.  In particular, he considered that any office duties would be safe and comfortably tolerable for him to perform.[71]

[71]See report dated 6 February 2007, PCB 76

Seemingly, Mr Brink last saw the plaintiff on 7 February 2007.

In a report dated 24 May 2007, Mr Brink states in part:

“Apparently this man was asymptomatic prior to the fall which produced his pain.  The fall was in November 2003.  MRI scan in January 2004 revealed an acetabular labral lesion and tear, mild subchondral cystic change and thinning of articular cartilage.  There was an ossicle of bone at the antero-lateral acetabular margin with increased signal extending between the ossicle and the bony acetabular margins suggesting a tear at the base of the labrum.  There may have been some pre-injury asymptomatic degeneration of the area of the hip joint, but it is impossible to know if this was the case or not. 

Certainly the nature of the injury was such as to produce acute damage to the hip or severely aggravate pre-existing asymptomatic degenerative change.”[72]

[72]See report dated 24 May 2007, PCB 80

(my emphasis).

Furthermore, Mr Brink confirmed that the plaintiff would require a total hip replacement if and when symptoms increase to a point where he is not happy with the situation, although he was not certain when that would be but suspected, that it would be within the next few years.

(vi)The plaintiff also relies on medical reports from Dr M Davies at the Lara Medical Centre.[73]  Dr Davies commenced to treat the plaintiff as his general practitioner from 16 February, 2007.  Dr Davies notes that the plaintiff was on WorkCover for an injury to his right hip which he sustained, having fallen 2 metres through a cargo hatch and landing on his right foot.

Dr Davies noted that the plaintiff experienced pain on a daily basis and there was some limitation in the range of movement of the right hip joint.

Dr Davies was of the opinion that the plaintiff could not return to his pre-injury duties although he had some capacity for work.  He noted that the plaintiff was unable to squat, found stairs difficult and was struggling to stand for more than 40 to 60 minutes without a break.  Furthermore, Dr Davies was of the opinion that the plaintiff was likely to require further surgery in the future, specifically a right hip replacement arising from the injury.

(vii)The plaintiff also relies on medical reports from his current treating general practitioner, Dr Chris Daw, who is based at the Bendigo Community Health Services.[74]

Dr Daw is of the opinion that the condition of the plaintiff has stabilised but his pain in the hip may get worse as the osteoarthritis progresses.  In particular, Dr Daw considered the plaintiff was restricted in his ability and precluded by pain in bending, lifting, twisting or stooping; pushing, pulling or lifting; repetitive pushing; repetitive or prolonged use of right hip; kneeling, squatting or crouching; prolonged walking or standing; walking up inclines or down declines and using steps or ladders.  He considered that the plaintiff was not restricted in manual dexterity although he considered that he has no capacity for suitable employment due to “chronic pain”.  The prognosis for the hip pain is for it to become “worse”, leading to a hip replacement.  As at 19 November 2012, Dr Daw was of the opinion that the plaintiff had the capacity to perform light duties such as driving or office duties on a part-time basis of 15 to 20 hours per week and that would continue into the foreseeable future.

[73]See Exhibit 4, reports dated 7 August 2007, page 50 PCB and report dated 8 May 2008, pages 61‑62 PCB

[74]See Exhibit 4, report dated 30 May 2012,page 63 PCB and report dated 19 November 2012, page 63.1 PCB

24      The plaintiff also relies on the reports of the orthopaedic surgeon, Mr H D W Williams.[75]  Mr Williams gave evidence and was cross-examined by Senior Counsel for the defendant.  Mr Williams adopted his two reports.  Mr Williams examined the plaintiff on 7 June 2011, 9 August 2011, 25 August 2011 and on 20 November 2012. 

[75]See Exhibit 4, report dated 29 June 2012, pages 82-83 PCB and report dated 28 November 2012,  page 83.1-83.2 PCB

25      Mr Williams noted in his reports that the plaintiff gave a history of increasing pain in his right hip and that he had experienced an injury to his right hip in 2003 when he “fell down the hatch in a ship”.  Mr Williams notes that he was not involved in the initial management and has no specific details regarding that injury, although he did note that the plaintiff did not seek treatment specifically until 2004, after which followed an arthroscopy of his right hip. 

26      When initially seen in June 2011, the plaintiff described increasing pain in the region of the right great trochanter radiating to the right groin and the anterior part of the right thigh.  The pain was particularly “distressing” and kept him awake at night.  Furthermore, his walking distance at that time was approximately 100 yards and he had difficulty bending down to his feet to put on his shoes and socks.  At that time, he was assisting a builder but was unable to climb ladders.

27      An x‑ray at that time revealed some minor degenerative changes in the right hip joint and in particular, some superolateral joint space loss.  There was also some calcification evidence in the lateral soft tissues at the joint of uncertain significance.

28      Mr Williams diagnosed the plaintiff to be suffering from early degenerative change in the right hip and arranged for him to undergo manipulation under anaesthetic and a cortisone injection into the hip, which was undertaken on 9 August 2011.  When reviewed on 25 August 2011, the plaintiff described some improvement in his hip symptoms and considered he could be a bit more active at that time.  Mr Williams considered at that time, that the likelihood would be that the plaintiff may require a total hip joint replacement if the degenerative change was to progress, which was likely. 

29      When reviewed on 20 November 2012, examination revealed evidence of an irritable and painful right hip with a positive Trendelenburg’s sign and a generally reduced range of movement of the right hip.  An examination of a plain x‑ray taken in March 2012 suggested that his condition was deteriorating, which was the likely cause of events with any sort of degenerative arthritis.  He considered that for management purposes, it would be reasonable for the plaintiff to have a further manipulation under anaesthetic and cortisone injection to the right hip.  When specifically queried on the physical capacity of the plaintiff, Mr Williams stated:

“With regard to Mr Carter’s physical capabilities and employment prospects in the future, in my opinion these are somewhat limited.  I believe he should not undertake heavy manual work that involves carrying loads greater than 10 kg and he should avoid activities that involve lifting, twisting, bending, stooping, kneeling, squatting or crouching.  He is unable to walk or stand for prolonged periods, he is unable to use steps or ladders effective and is best advised to avoid these activities.  He may be able to undertake light duties involving heavy loads (less than 10 kg) and work reduced hours and I would suggest shifts of three to four hours at a maximum.  If at some stage Mr Carter were to have hip replacement surgery, then he should remain with a weight restriction; however, his duration of activity could probably increase to normal hours.  In other words, I feel he would be best advised to permanently avoid heavy manual labour in the future.  … .”[76]

[76]See Exhibit 4, page 83.2 PCB

30      At the time of his last examination, Mr Williams had further information involving investigative reports and correspondence from various doctors.  In particular, Mr Williams stated:

“I would add at this point that there is some evidence that Mr Carter had pre-existing radiological evidence of degenerative change in his right hip that must have been present prior to the fall of July 2003.  I would concur with the view of Mr Rodney Brink, from his earlier reports, that such radiological evidence of degenerative change was not specifically caused by the fall; however, there is a clear relationship between the fall and the onset of symptoms.  This is not an unusual situation and we frequently see patients present with such x‑ray changes that must have been developing for some time and then a specific insult might lead to ‘unmasking’ of the underlying degenerative change of acute symptomology.  As Mr Carter was not in the habit of falling down and landing on his feet and at a considerable distance of 6 feet, apart from in the course of his work, the injury and the nature of his hip problem are clearly related to his employment.”[77]

[77]See Exhibit 4, page 83.1 PCB

31      In particular, Mr Williams considered that the plaintiff would be incapable of working as a stevedore or as an industrial chef.  Furthermore, in terms of his social, domestic and recreational activities, he considered the plaintiff to be “moderately restricted at this time” and noted that the plaintiff does not undertake active sports such as golf or going for regular walks due to his hip condition.

32      During his evidence-in-chief, Mr Williams confirmed that earlier that day, he had been informed that subsequent to the incident in July 2003, there was the incident on 21 November 2003 when he was picking up timber gluts when he felt a sharp stabbing pain in his hip.  Having been made aware of that further history, he expressed the view that that did not alter his opinion.

33      Mr Williams was also queried in evidence-in-chief in relation to the MRI scan of the right hip undertaken by the plaintiff on 28 January 2004.  In particular, he stated:

A:“… In the comments section of that report, he initially describe[d] a – well, a small ossification, which is a small piece of bone, approximately a centimetre in diameter.  That could be a pre-existing finding, not necessarily related to any trauma.  A … signal between that and the adjacent acetabulum margin suggesting a deficient acetabulum labrum.  And a tear that is consistent with a more traumatic event such as jarring or sudden movement of the hip joint.  And then the final point that’s made is the associated mild subchondral cystic change and subchondral bony oedema with thinning of the acetabular cartilage.  We’d generally associate those of a more longstanding nature, those findings.”

HIS HONOUR:

Q:“When there’s a tear, a labral tear, Mr Williams, is that something you’d know about when it occurred?---

A:You wouldn’t specifically know about that.

Q:It’s not like a … describe when you’re playing football and one of your - you know, one of your tendons goes in your leg and you know about it straight away.  Nothing like that?---

A:It wouldn’t be that similar sort of sensation and to differentiate purely upon symptoms, you couldn’t say that a certain symptom has led to the – are consistent with the labral tear or a certain set of symptoms are consistent with the degenerative change and subchondral oedema cartilage thinning.

Q:Also you mentioned when you find – that finding, is it – you said that’s more consistent with a traumatic origin, is that correct?---

A:Yes I do believe that.

Q:Is that in any way governed – is the age of the person relevant to that type of consideration, perhaps someone in their sixties might have a – you might be less inclined to say that or is that ---?---

A:Certainly.  That appearance could develop with increasing age and longstanding hip arthritis.”[78]

[78]T211, L8 – T212, L10

34      Under cross-examination, Mr Williams gave the following pertinent evidence:

·That he did not examine the MRI films but relied on the report of the radiologist, and that the radiologist expressed part of his opinion to be either a degenerative condition or a basal labral tear with no particular preference.

·If it was a degenerative condition, it would be less likely to be associated with trauma.

·He would do over 100 hip replacements a year and would have done in excess of 600 hip replacements over the last fourteen years, although he does not solely undertake hip arthroplasty surgery.

·He obtained a history that the plaintiff did take Voltaren for “pain” and he seemed to be taking that on a regular basis.

·He obtained a history that the hotel venture entered into by the plaintiff failed “not necessarily due to his physical incapacity”.  Mr Williams accepted that as described by the plaintiff, the hotel was a failed enterprise rather than failure brought about by complaints arising from his right hip.

·He accepted that it would be relevant to know whether or not the plaintiff had problems with his hip before the fall, although someone can have degeneration of a hip which is asymptomatic until a traumatic event.

·When the report of the occupational therapist was put to him in relation to the examination of 5 August 2000 – and in particular the complaints of right hip pain – he accepted that it is probable such complaints were other than just referred pain from the back into the hip.  Later, he said it was possible, and when pushed by the cross-examiner, he ultimately stated “unable to say one way or the other”.[79]

[79]T230, L7-8

·Mr Williams stated specific L5-S1 pathology would cause pain in the foot or the calf.  He did note that, however, if it was due to facet joint degenerative change or disc pain in itself, then that could easily be felt just in the right-hand side of the midline into the buttock region, which an occupational therapist might describe as hip pain or a patient may well describe as hip pain.

·When informed of certain movements giving rise to the pain in the right hip, Mr Williams accepted it may well be right hip pathology productive of pain.  In particular, Mr Williams accepted that the movements of hip abduction and adduction can only occur at the hip joint and there can be no contribution from the lumbar spine.  If such movements are reduced, then it is more indicative of hip pathology.

·Mr Williams also accepted that a complaint of right groin soreness on 4 September 2000 would be suggestive of right hip pathology, although it could be explained by a lumbar problem, although generally not at the area of L5-S1.

·Mr Williams also accepted that it was “more likely to be the hip” when the occupational therapist found the hip to wobble when he was standing on one leg.

·Mr Williams described the plaintiff as “fairly stoic”.

·The Court queried Mr Williams in relation to pre-existing symptoms and the following evidence was given:

HIS HONOUR:

Q:     “Just so I’m clear about that, Mr Williams.  There seems to be three separate aspects;  there’s, one, a complaint of right hip which I suppose, from human experience he might complain of pain but we can probably locate where it is but we’d have no idea what’s causing it, I can understand that, but there’s the complaint of right hip pain, there is the right groin pain later by the GP, the history of that which as I understood it you said was a symptom which is consistent with right hip pain, but that’s likely to be low lumbar pain symptom?---

A:     Yes.

Q:     And the third thing was the reduced abduction and adduction of the right hip, another factor which would suggest right hip pathology at the time; is that fair?---

A:     Yes, that’s correct.

Q:     So there are a mixture of signs and symptoms I suppose, to some degree, aren’t there?---

A:     Well, there is, certainly, and there’s also an impression of just increasing symptomology in his right hip, however, come back to the point of the occupational therapist in 2000, at just purely on the basis of that report then, I’d like to maintain my version of possible cause of hip pathology causing symptoms or contributing to his symptoms.”[80]

[80]T249, L12 – T50, L2

·Later in his evidence, Mr Williams was asked:

HIS HONOUR:

Q:     “And the point you’re making there, Doctor, is – and I’m using my words, you’ll no doubt tell me if I’ve got this incorrect.  If the event that – the fall in the hold or even indeed the picking up episode in November 2003 was the beginning of his symptoms to his – in his right hip area, your view is that that suggests, even though there may be an underlying pre-existing condition it was quiescent and that particular trauma has rendered an asymptomatic condition symptomatic and thus traumatically imposed.  On the other hand, if I took the view that this man has had a hip condition from 2000 or 2001 - - - ?---

A:     Yes.

Q:     --- when the functional evaluation occurred and it’s evolving over time, what we’re really seeing now is just a constitutionally bad hip, are we?---

A:     Well, yes.”[81]

[81]T260, L5-19

·Later in his evidence, Mr Williams was cross-examined in relation to whether or not he would have expected symptoms “immediately” after the alleged fall by the plaintiff into the hold of the ship on 7 July 2003.  The following evidence was given:

MR MELDRUM:

Q:     “No – all right.  He was not – if – I put to you, would you agree with – you have agreed already with this proposition, that a fall from a height certainly of six foot, less likely from three to foot, correct?---

A:     Yes.

Q:      Is quite likely if it produced the signs that were seen on the later radiology, including interpretation of some it as damage to the rim of the labrum, it’s likely that there would have been immediate significant pain?---

A:     It is more likely, yes.

Q:     More likely.  And that is what he says, he would have expected the hip to be painful immediately, that’s what you would say you’d expect?---

A:     Yes.

Q:     Then if it was found His Honour that it was not until 2004 that he starts to complain of hip, would you agree that it’s hip degeneration was very slowly progressing and he was in fact experienced, that’s - - -.”

HIS HONOUR: 

Q:     “Yes, that’s right, I think it’s 8 July ‘03 and 22 November ’03  isn’t it?”

MR MELDRUM: 

A:     “Yes. 

Q:     But if it was – it – if the hip replacement - sorry.  If only when picking up from the squat was there any significant pain, it is likely that the fall has not been a significant cause of the pain, has it, four months later?---

A:     Four months later, it’s – it’s possible – well, I’m not sure how to answer this question.  The fall remains the most significant trauma to his hip during that time, and it’s possible that he had been not moving his hip with the same range of motion during that three month period and then with the incident in November 2003 he suddenly has stretched his hip joint capsule which had previously not been stretched since this fall, then that might cause him to develop symptoms at that time.”

HIS HONOUR:

Q:     “See, one of the things, Doctor, and this is not particularly your problem, it’s ultimately my problem, but in general terms the evidence before me is that the plaintiff – and this is from the plaintiff – had no hip symptoms prior to July 2003, prior to the, if I can call it the fall episode, and after the fall episode he said he did have symptoms in the right hip area, and indeed, throughout that period from July to November 2003 although he continued to work he said, he effectively protected himself calling other workers and amongst themselves for him to avoid work?---

A:     Yes.

Q:     And throughout that period of time there’s no, at least, attendance on any doctors as I understand it, complaining of hip pain or anything akin to that, and indeed, there is a attendance on a doctor during that period of time for reasons that aren’t connected with anything to do with this, and then we have the incident, if I can call it the piece of wood incident, whether he’s bending or squatting, and thereafter there is a report of right hip pain and it’s not long after the MRI scans start and a variety of things start to happen?---

A:     Yes.

Q:     In that scenario, can you comment at all what role if any, or may or may not or even probable about the fall in July 2003?---

A:     It wouldn’t – it wouldn’t be uncommon for, sort of, minor symptoms to start up, as he suggested, and for this to accelerate, and with a certain rapidity within increasing – with continued use, so I think I’d remain – to my mind it remains probable that the injury in 2003 July  was the most significant event.”[82]

(my emphasis).

[82]T265, L4 – T267, L1

35      Under re-examination, Mr Williams gave evidence that the operative finding made by Mr Young and Mr Brink in May 2005 of a “Grade 2 ring lesion” is a “labral tear”.  Mr Williams did comment that he would have preferred if there was an express reference to a labral tear, but notes the MRI scan findings are more suggestive of a “traumatic shearing type event”.  He considered such an event would have been caused by the heavy fall.

36      Mr Williams was also referred to the report of Mr Ian Jones wherein Mr Jones noted it is uncertain that the pain in the right hip referred to by the occupational therapist emanated from the right hip or from the lower back.  Mr Williams agreed that he was also unable to say.

37      Mr Williams was also informed of various other medical examinations in relation to the back without there being any mention of hip pain.  Mr Williams opined that it would appear that if there was any right hip pain, it was far less of a problem than the low back condition.

The medico-legal reports relied on by the Plaintiff

38      The plaintiff relies on the following medico-legal examinations:

(a)Examinations by the general surgeon, Mr K Brearley, on 11 August 2010[83] and on or about 21 June 2012;[84]

(b)By the orthopaedic surgeon, Mr John O’Brien, on 16 July 2012;[85] and

(c)By the orthopaedic surgeon, Clinical Associate Professor B Love, on 16 October 2012.[86]

[83]See report dated 11 August 2010, Exhibit 4, pages 80-89 PCB

[84]See report of same date, Exhibit 4, pages 90-95 PCB

[85]See report of same date, Exhibit 4, pages 96-100 PCB

[86]See report dated 17 October 2012, Exhibit 4, pages 103-104.2

39      Mr Brearley obtained a history of the plaintiff tripping and falling into an open hatch where he fell “about 2 metres”, landing heavily on his right leg.  Furthermore, he obtained a further history of ongoing pain in his right hip and that on 21 November 2003, it became “suddenly worse” when he bent over to pick up a piece of timber.  He thereafter described his various treatments from Mr Zayontz and Mr Rodney Brink leading to the arthroscopy on 21 May 2005.

40      At the time of examination, the plaintiff described constant pain of variable degree in his right hip made worse by standing, and walking and sitting for a long period.  He was only able to stand and walk for about 30 minutes or so without having a great increase in pain.  Attempted lifting and bending and stooping worsened his pains and he tends to limp most of the time.

41      Mr Brearley had various radiological reports but no actual films.

42      After his first examination, Mr Brearley was of the opinion the plaintiff suffered a tear of the acetabular labrum of the right hip.  Furthermore, he was of the opinion that there was an aggravation of his symptoms on 21 November 2003.

43      Mr Brearley was of the opinion that the plaintiff does not have the capacity to perform his pre-injury duties in an unrestricted manner and such is a permanent state.  However, he considered that at the time of the first examination, the plaintiff was capable of performing suitable employment on a full-time basis.  He would not be able to lift anything above 15 kilograms and should avoid climbing stairs, and would be unable to do any heavy manual labour.

44      He considered the prognosis to be “not good” and that the likelihood is that he would develop osteoarthritis of his right hip, develop increasing pain and stiffness and almost “certainly” require total hip joint replacement.

45      When later seen in June 2012, the plaintiff gave a history that he had had “gradually worsening pain” in the right hip.  On examination, Mr Brearley noted that the plaintiff was walking with a very marked limp, favouring the right leg, and he also noted that examination revealed a deterioration in the range of movement of the right hip. 

46      He confirmed his earlier diagnosis and considered that there had been a deterioration in his condition since the first examination.  He considered that the condition is not stabilised totally, in that there is a probability that he will have a total hip joint replacement in the foreseeable future.

47      He was further of the opinion that the plaintiff is “seriously limited” in activities such as bending, lifting, twisting and stooping; pushing, pulling or lifting; repetitive pushing, pulling or lifting; prolonged use of the right hip; kneeling, squatting or crouching; prolonged sitting, walking or standing; walking up inclines or down declines; using steps or ladders or manual dexterity. 

(a)   The Claim Form dated 4 December 2003;[133]

[133]See Exhibit E

(b)   Job descriptions put to the plaintiff in cross-examination;[134]

(c)   The first aid service casualty report in relation to an incident on 21 November 2003;[135]

[134]See Exhibit F, pages 153-162 DCB

[135]See Exhibit 10

Analysis of the evidence

117     The plaintiff asserts that on or about 7 July 2003 during the course of his employment with the defendant, he suffered a right hip injury, resulting in permanent impairment of the right hip and consequences which are “serious” within the meaning of the Act, both in relation to pain and suffering and pecuniary loss.  Of course, the plaintiff has the onus to discharge the establishment of a “serious injury” within the meaning of the Act in relation to the right hip.

118     The overwhelming consensus of medical opinion of recent times, based on the symptoms complained of by the plaintiff, physical signs exhibited by the plaintiff and various radiological studies, is that the plaintiff suffers symptomatic osteoarthritis in the right hip which will ultimately cause him to have a hip replacement.  In such context, the defendant raises the following issues:

(a)   Whether such undoubted hip condition has been caused or contributed to by any injury during the course of the plaintiff’s employment with the defendant and in particular, any injury on 7 July 2003.  In this respect, the defendant alleges that the right hip condition suffered by the plaintiff is essentially a degenerative condition which has been evolving since 1999 or 2000, and employment has played no role in causing or aggravating such condition;

(b)   That in any event, the plaintiff has a residual capacity for “suitable employment” within the meaning of the Act, the income from which would not entitle him to satisfy the pecuniary loss requirements of the Act.

119     The plaintiff and the defendant each rely on a large number of doctors’ opinions, some of whom have been treating doctors of the plaintiff, and many others who offer medico-legal opinions.  The spectrum of opinions from such doctors ranges from the right hip condition being a degenerative condition, with employment playing no role in its aetiology, through to the “injury” on 7 July 2003 either causing damage to the right hip (involving a labral tear brought about by the trauma on that day) and/or aggravation of asymptomatic pre-existing degenerative change in the right hip.  Insofar as it is opined by those doctors alleging a work contribution to the hip condition, such work contribution manifests itself in the production of symptoms in the right hip earlier than otherwise would have occurred and/or the ultimate need for right hip surgery to be brought forward as a result of the “injury” on 7 July 2003. 

120     Consistent with the general nature of serious injury applications, only the plaintiff and one of the treating specialists (Mr H Williams) were cross-examined.  I have read all the medical opinions in detail and have attempted to set out the crux of the various specialist opinions. 

121     The matter is also made more complex when one considers that the plaintiff lodged a Claim for Compensation in respect to an “injury” involving his right hip following an event in November 2003 when he experienced severe pain in his right hip after rising from a squatting position during the course of his employment.  Such claim was accepted and compensation paid pursuant to the provisions of the Act.

122     One of the critical issues raised by the defendant is the credit of the plaintiff.  The defendant submits that the plaintiff is an untruthful witness and that in the circumstances of this matter, his credit is very important when coming to assess whether or not he has suffered an “injury” as alleged.  I accept that in the circumstances of this matter, the credit of the plaintiff is particularly important.

123     Before turning to that issue, I do find that the plaintiff is a forty-three-year-old married man with a young child from his present marriage and two children from previous relationships.  He commenced employment with the defendant as a stevedore in or about 2001 and was effectively terminated on 8 August 2008 after being advised by the defendant that he was unable to perform all his employment duties required of him due to his right hip injury.  Furthermore, during the course of such employment, the plaintiff was required to perform clerical work, forklift driving, driving of excavators and general stevedoring work.  In particular, such work involved working on a variety of ships and being in and out of holds, climbing of ladders, bending and carrying gluts – pieces of wood which held items in place in ships’ holds.

124     I also find, consistent with the Incident Report dated 8 July 2003, the plaintiff, on 7 July 2003, was walking across a deck and failed to notice a gap in the deck and dropped through such gap, approximately 4 feet, landing on his feet on the lower deck.  I did not understand the defendant to be challenging the occurrence of such incident.

125     I also find that following the occurrence of such “incident”, such events occurred:

(a)   That the plaintiff consulted Dr Grace on 8 July 2003 complaining of having a fall at work, injuring “his left elbow”.  An x-ray was arranged on that day, which demonstrated no injury to that joint.  Furthermore, Dr Grace, or one of his colleagues, consulted with the plaintiff on at least one occasion between 8 July 2003 and November 2003, at which time no mention was made of any right hip condition;

(b)   The plaintiff attended Dr A Nan at the MedicAid clinic on 22 November 2003 demonstrating marked limping and complaining of “severe pain in his right hip”.  At that time, Dr Nan obtained a history that it was caused by “heavy lifting at work the previous day”;

(c)   The plaintiff attended Barwon Health and underwent an x-ray of his pelvis, right hip and lumbosacral spine on 22 November 2003;

(d)   The plaintiff attended, at the request of his employer, the Bridge Street Clinic on 24 November 2003 and gave a history to Dr Bloom that on 21 November 2003, he felt “very sharp stabbing pain” in the vicinity of his right hip.  At that time, the plaintiff gave Dr Bloom a history of approximately two months prior to his consultation he had fallen a height of approximately 6 feet onto his right foot and right side.  The plaintiff made reference to some pain in the right knee but considered that he had largely recovered from any injury sustained in that fall;

(e)   That the plaintiff completed a first aid service casualty report on or about 21 November 2003 for the defendant, wherein he stated:

“That while working in shed picking up wooden blocks (gluts) as he was lifting up he felt pain from his hip down his right leg to his foot.  Patient previously (two months ago) hurt legs and knees in another accident.”[136]

(f)   That the plaintiff had suffered an earlier back injury on 21 April 1999 when employed as a chef/general kitchenhand by a company which supplied catering services at the Century Zinc Mine in Queensland.  In respect to a claim made for such injury, the plaintiff attended, amongst others, an orthopaedic surgeon, Dr John Maguire, on 11 December 2003 for the purpose of a medico-legal examination.  At that time, Dr Maguire obtained a history of ongoing back problems with no complaint of any right hip injury problems, although Dr Maguire did note that the plaintiff was on WorkCover in Victoria for an unrelated injury.

[136]Exhibit 10

126     Those acting for the defendant submit that the plaintiff is not a creditable witness.  In particular, reference was made to the following matters in support of such submission:

(a)   The inconsistent histories that the plaintiff has given to various doctors as to the distance of the fall in the hold on 7 July 2003, with the “high point” being the history to Mr Kudelka of a fall of 10 feet;

(b)   The absence of any complaints of right hip pain either at or around the time of the alleged injury on 7 July 2003 or at any time prior to the complaint of hip pain on 22 November 2003 following the lifting of the gluts;

(c)   First aid service casualty report, to which I have already referred, which makes no suggestion that the plaintiff had hurt his hip or had suffered any symptoms in his hip following the incident on 7 July 2003;

(d)   That when the plaintiff did commence to complain about right hip symptoms after picking up the gluts in November 2003, there was no reference initially to any doctor (Dr Nan and Dr Bloom) of ongoing right hip pain since the incident in July 2003;

(e)   That in respect to his claim for the earlier back injury, there was no indication to any doctors that he had suffered right hip problems from July 2003, or for that matter, from November 2003, which suggested, according to the defendant, that the plaintiff was deliberately asserting to one camp the difficulties in relation to his back injury, whereas he was asserting to another camp the difficulties of his right hip from November 2003 and minimising any back complaint.

127     Senior Counsel for the plaintiff submitted that although the plaintiff may well be an unreliable witness, he was not a dishonest witness.  He submitted that the plaintiff gave frank answers and, on several occasions, gave answers which were against his interests – for example, his comments about what he did at the hotel in terms of day-to-day activities and his disclaiming that the hotel failed because of his hip injury, but rather for such matters as damage to the hotel and his drinking habits.

128     I had the advantage of observing the plaintiff over a long period of cross-examination and after a careful consideration of his evidence, I have come to the view that the plaintiff was at all times attempting to give honest and accurate answers to the questions posed to him.  I accept the submission of Senior Counsel for the plaintiff that on several occasions the plaintiff gave evidence that was against his interests.

129     I do accept that the plaintiff was an inaccurate historian when relating histories to various doctors.  Seemingly, the plaintiff gave a history that the fall was in November 2003 rather than July 2003, and there was a variety of distances given to various doctors about how far he fell.  I do note that the plaintiff expressly disclaimed ever informing Mr Kudelka he fell 10 feet, although he accepted that he did tell doctors that he fell about 2 metres, which he equated to about 6 feet.  The plaintiff noted that he had been in many holds over the years and could not remember precisely the depth of the particular hold into which he fell.  He did accept that he filled in the initial incident report, wherein he asserted it was about 4 feet.  Furthermore, he does not recall what he told Dr Nan or Dr Bloom.  In my view, as pointed out earlier in this judgment, the credit of the plaintiff is important.  As I already stated, I consider that the plaintiff was a creditable witness in giving evidence before me.

130     The defendant also relied on certain histories and complaints allegedly made to health professionals by the plaintiff prior to his employment with the defendant to support the proposition that the plaintiff had experienced right hip pain from about 1999 onwards, which was consistent with a degenerating right hip rather than one caused or aggravated by the incident on 7 July 2003.  In particular, the defendant relies on:

(a)   A report from Dr Paul Patane dated 29 January 2001 wherein it is alleged that the plaintiff mentioned “he had some right groin soreness”.  Evidence was later given by Mr Huw Williams that such a complaint would be more likely consistent with a right hip condition rather than a low-back lesion;

(b)   A functional capacity evaluation report undertaken by an occupational therapist on 5 August 2000, when it was recorded that the plaintiff gets “pain in his right hip”.  Furthermore, the occupational therapist recorded that right hip abduction and adduction was reduced and indeed, Mr Williams gave evidence that such a reduced range would be consistent with some type of hip pathology.  Furthermore, the occupational therapist noted that 24 hours post assessment, the plaintiff rated his “right hip pain as 8 out of 10”.  The occupational therapist noted that there was some restriction as to his capacity “due to right hip pain”.

(c)   The statement of claim filed on behalf of the plaintiff on 25 June 2003 wherein it is asserted that the plaintiff continues to suffer pain and stiffness in his right hip.

131     Mr Williams was cross-examined by Senior Counsel for the defendant as to whether or not such symptoms and signs would be consistent with a right hip degenerative condition.  Furthermore, reference was made to the MRI scan of the right hip undertaken on 28 January 2004, which would suggest some degenerative change in the right hip area.

132     After a consideration of all of the evidence, I am not satisfied that the plaintiff was suffering from about 1999 and thereafter symptoms in his right hip emanating from right hip pathology.  I have come to such view for the following reasons:

(a)   The plaintiff denies that he was suffering any right hip symptoms prior to July 2003;

(b)   It must be stressed that in the period from 1999 to 2003, the plaintiff had experienced a low-back lesion involving impingement on the right side, giving rise to right-sided sciatica and indeed, in his evidence-in-chief, the plaintiff made clear the differences between the type of pains that he was experiencing in relation to his right leg as a result of the back injury and the pain that he experienced as a result of his right hip injury;

(c)   When Dr Patane obtained a history that the plaintiff has some “right groin soreness”, there is no suggestion by that doctor that there is any right hip condition and indeed, he only speaks of low-back problems;

(d)   When seen by an orthopaedic surgeon, Mr R J Gibberd, on 8 June 1999, in relation to his back injury, he considered that the plaintiff was “genuine in his complaints” and had definite organic signs of an L5-S1 sciatica as a result of the earlier work injury.  Furthermore, when re-examined by Mr Gibberd on 4 November 1999, he notes that the hips were clinically normal and that “flexing the hip and knee did not increase the pain.  He had a normal hip joint.  He could walk comfortably on heels and toes;”

(e)   When examined by a physiotherapist in June 2000, examination revealed “normal” left and right hips, although tenderness through the lumbar spine and some restriction of lumbar spine movement;

(f)   Although I accept that Mr Williams fluctuated to some degree in his views about whether or not such signs and symptoms as reported over that period could constitute right hip pathology, I came to the view that he ultimately was of the opinion that it was possible but he was unsure.  Such an opinion is consistent also of that of Mr Ian Jones, who opined that it is “uncertain” whether the pain in the right hip referred to by the occupational therapist emanated from the right hip or from the lower back.  Similarly, Dr Mary Wyatt noted that the functional capacity review in 2000 is “hardly indicative of hip problems prior to the described fall in 2003 and in fact his employment as a stevedore”;

(g)   Although appreciating that Mr Clive Jones was of the opinion, seemingly based on the above matters, that the plaintiff was experiencing right hip pain from about 1999 onwards, he is essentially alone in that opinion.  Although, Mr Dunin, on being made aware of such material, comes to a similar opinion, it would appear that his opinion is largely based on what he calls the “affidavit of the plaintiff”, wherein it is alleged that the plaintiff had such hip problems prior to 2003.  Of course, the reference to the “affidavit” is a reference to a Statement of Claim in relation to the low-back injury drawn by Counsel, no doubt on the basis of the occupational therapist’s report.  The plaintiff gave evidence that prior to the subject hearing, he had never seen such Statement of Claim or had any knowledge particularly of it.  Accordingly, the opinion of Mr Dunin based on the alleged “affidavit” is significantly weakened in my view.

133     After a consideration of all of the evidence, I have come to the view that the fall in July 2003 caused a labral tear to some degree and probably aggravated pre-existing quiescent degenerative changes in the right hip, causing the plaintiff to have symptoms in the right hip area shortly after the incident in July 2003 earlier than otherwise would have occurred, and furthermore, has brought forward the requirement which seemingly is universally accepted, that the plaintiff will ultimately have to undergo right hip surgery because of his condition.

134     I have come to such view for the following reasons:

(a)   I accept the plaintiff when he says that shortly after the occurrence of the incident in July 2003, he commenced to experience a grinding feeling of pain in his right hip area, necessitating him to modify the type of work that he undertook.  In this respect, although there was no formal certification, I accept that the plaintiff did arrange either with one of the “bosses” and/or in an informal way avoided the heavier aspects of stevedoring work which required going up and down ladders and the like;

(b)   The evidence of the initial treating surgeon (Mr Brink), and indeed the later treating surgeon (Mr Williams), would suggest that it was likely that the trauma brought about by the fall in July 2003 caused a tear in the labrum and aggravation of pre-existing degenerative change.  It is to be noted that when Mr Brink initially examined the plaintiff on 30 November 2004, he obtained the history that the fall occurred in November 2003 rather than July 2003.  However, when one reads a description of the incident, there is no doubt that it is a reference, in my view, to July 2003;

(c)   Seemingly, Mr T J Russell was the first specialist to examine the plaintiff on behalf of the defendant.  At such examination on 10 February 2004, Mr Russell obtained a clear history of the incident in July 2003 (although reported as a couple of months prior to November 2003), and in particular, obtained a history that right hip pain and soreness commenced “a few weeks later” after the fall through the deck.  Mr Russell also obtained a history of acute pain in November 2003 after picking up pieces of wood.  He had available to him the MRI scan and was later informed that the fall may well have been only 4 feet.  Notwithstanding, he was of the opinion that it was likely the fall gave rise to a labral detachment and a fall would be far more traumatic than rising from a squatting position in November 2003;

(d)   When examined by Dr C Jander on 30 June 2004, he also considered that the plaintiff had a “possible labral tear”.  He noted that labral tears are “usually caused by a direct trauma as in a fall”.  Furthermore, when examined by Dr Andrea James on 31 December 2004, she obtained a history of falling approximately 6 feet and suffering a labral tear due to the work injury;

(e)   I note that Mr Brearley, after obtaining a history and making an examination of the plaintiff on 11 August 2010, was of the opinion that the plaintiff had suffered a tear of the acetabular labrum of the right hip as a result of the fall in July 2003;

(f)   Mr O’Brien, after obtaining a history and making an examination on 16 October 2012 was of the opinion that the plaintiff had osteoarthritis in the right hip, secondary to the trauma precipitated by the fall in July 2003;

(g)   Mr Love, after obtaining a history and making an examination of the plaintiff on 16 October 2012, was ultimately of the opinion that the surgical findings of Mr Brink, on balance, were caused by the “industrial accident” – that is to say, the fall in July 2003;

(h)   Similarly after Mr Ian Jones obtained a history and made an examination of the plaintiff on 19 March 2012, he accepted that the fall could possibly reflect an aggravation to a congenital anomaly of the growth in the hip socket and possibly trauma to the margin of his joint and femoral head;

(i)    Also, I note that it was the opinion of Mr Dunin that the symptoms suffered by the plaintiff, which occurred “within several months after sustaining a significant fall” are due to a combination of pre-existing constitutional factors and subsequent exacerbation by the fall at work.  I have already commented on Mr Dunin’s further opinion in relation to the material supplied by the defendant to support the contention that the plaintiff had suffered right hip symptoms since 1999.

135     The defendant raised the issue that if some type of labral tear did occur in July 2003, one would have expected greater symptoms and disability at that time.  Such a view is supported by Mr Jones, who stated he would have expected the hip to be painful “immediately” after the fall.  Furthermore, Dr Wyatt was of the opinion that if the fall in 2003 had been a “major factor”, one would have expected “substantial trauma and particular difficulties at the hip at that time”.

136     Perhaps with the exception of Mr Clive Jones, there appeared to be a consensus of medical opinion that a fall onto your right leg could do damage to a right hip.  Furthermore, it is to be noted that:

(a)   although Mr Polke would have “expected” for the plaintiff’s symptoms to have been present immediately after the trauma, he did note, after obtaining further information, “it would appear that the elbow pain dominated on 8 July 2004 and his hip pain was likely to have been intermittent and not a major concern on that day”;

(b)   Mr Ian Jones was of the opinion that although he would have expected the plaintiff to experience more pain after the incident in July 2003, he asserted that “on the other hand” such an incident may have aggravated the acetabular to the point where it became symptomatic and that there may have been suffered some chondral damage to the femoral head;

(c)   Mr Dunan, although commenting that it would be “usual” to expect symptoms to occur within a day or two of the fall in July 2003, he does note that the plaintiff did complain of general soreness after the fall in July 2003.  Even when told that the plaintiff did not report hip pain to a doctor until November 2003, he comments it makes it “difficult” to know how significant the injury was in July 2003, but goes on to state:  “… a fall of two metres would cause significant forces across a hip joint, making it more likely that it would bring on the symptoms of previous degenerative changes earlier, than had such a fall not occurred”.

137     Accordingly, I find that the plaintiff has suffered a compensable right hip injury arising out of, or in the course of, his employment on 7 July 2003.  Furthermore, I consider that such injury has resulted in a degree of permanent impairment in that there is restriction of movement of the right hip and painful symptoms which inhibit not only a wide variety of work activities, but also recreational activities such as golf, lawn bowls and sailing.  Furthermore, I consider that such condition is deteriorating and will lead ultimately to a right hip replacement earlier than one would have expected absent the fall in July 2003.

138     I consider it appropriate to initially decide whether the plaintiff satisfies the requirements to obtain leave to claim “pecuniary loss damages”.

139 In relation to the issue of pecuniary loss, s134AB(38)(e)(i) of the Act requires the plaintiff to establish that as at the time of the hearing of the application, he “has a loss of earning capacity … of 40 per cent or more” measured “as set out in (f)”.  The measurement of the claimed loss of earning capacity as described by paragraph (f), necessitates a comparison of two matters:

(a)      what the plaintiff is earning, whether in suitable employment or not, or capable of earning in suitable employment at the date of hearing (“after injury earnings”); and

(b)      the income that the plaintiff was earning or is capable of earning “during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred” (“without injury earnings”).

140     In both cases, the income is limited to gross income from personal exertion and is to be annualised.

141 Section 134AB(38)(e)(ii) of the Act requires the plaintiff to establish that he will, after the date of hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more”.

142     Section 5(1) of the Act defines “suitable employment” to mean:

“… in relation to a worker, means employment in work for which the worker is currently suited—

(a)     having regard to—

(i)the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and

(ii)     the nature of the worker's pre‑injury employment; and

(iii)     the worker's age, education, skills and work experience; and

(iv)    the worker's place of residence; and

(v)     any plan or document prepared as part of the return to work planning process; and

(vi)    any occupational rehabilitation services that are being, or have been, provided to or for the worker; and

(b)      regardless of whether—

(i)     the work or the employment is available; and

(ii)the work or the employment is of a type or nature that is generally available in the employment market.”

143     In the circumstances of this matter, the parties agree that the “without injury earnings” of the plaintiff are $56,845.00, of which 60 per cent is $34,107.00 or $655.90 per week.

144     There is no issue that the plaintiff is unable to perform his pre-injury duties.  Indeed, the defendant terminated the plaintiff as from 8 August 2008 on the basis that he was unable to perform all duties required of him due to his right hip injury.  The plaintiff is presently working for “Meat Matters”, delivering meat to various outlets in the Bendigo area.  He is working approximately 12 hours per week and is paid $250 gross per week.

145     The critical issue is the nature and extent of any suitable employment that the plaintiff can physically undertake as a result of his right hip injury.  Those acting for the plaintiff submit that, in truth, the plaintiff has no greater capacity to perform suitable employment than what he presently demonstrates, whereas those acting for the defendant say that the plaintiff has a capacity to perform various types of fulltime employment and, in particular, such jobs as a café or restaurant manager, a delivery driver, a railway assistant, or a car park attendant.

146     I make the following general comments:

(a)   I have formed the view, after consideration of all the evidence that in no way can it be said that the plaintiff is “shy” of performing work.  In this sense, he carried on with a deteriorating hip, performing work with the defendant until he was ultimately terminated because he was unable to perform all duties.  He gave evidence that he was upset about being terminated in such circumstances.  Thereafter, he engaged in running a hotel, wherein he did perform various activities as and when required.  Furthermore, he has applied himself assiduously to his present delivery work.  I note that Senior Counsel for the Defendant, in his closing address, stated, correctly in my view, that the defendant was “not really critical of him as to his appetite for work”.

(b)   It must be borne steadily in mind that, as a result of his right hip injury, the plaintiff has painful symptoms and restriction of movement of the right hip.  The occupational physician, Dr Wyatt, who examined the plaintiff on behalf of the defendant, noted that the plaintiff would have no capacity for work which required him to be standing continuously, squatting regularly, doing significant manual handling or high impact activities, and that he should also avoid being required to repetitively step, such as in and out of trenches, up and down stairs or in and out of vehicles.

(c)   When queried about whether he could perform his present work five days a week, six hours a day, the plaintiff was not confident that he could work such hours, although he noted he was willing to try and does not want to lose any job just because he is in pain.  He gave evidence that he is “barely coping”, and when on some days he has to do many deliveries, he finds that he has to go to bed when he gets home and sometimes he is in bed at 5.30 or 6.00 at night.  Furthermore, he has to take pills to be able to sleep given the hip pain.

(d)   It must also be appreciated that the plaintiff is working in a reasonably “protected” environment in that he is working for a friend, who initially assisted him to help him out, and that he has the ability, in general terms, to perform the work at his own pace, allowing for rests between jobs. 

(e)   When pushed, the plaintiff considers that he could perform about 20 hours per week performing his present duties.

147     The present general practitioner of the plaintiff, Dr Chris Daw, considers the plaintiff is extremely restricted in the activities that he can undertake and, as at 19 November 2012, was of the opinion that the plaintiff had a capacity to perform light duties such as driving or office duties on a part-time basis of 15 to 20 hours per week, and that would continue into the foreseeable future.  Similarly, when the last treating specialist, Mr Hugh Williams, re-examined the plaintiff on 20 November 2012, he was of the opinion that the plaintiff may be able to undertake light duties which do not involve lifting, twisting, bending, stooping, kneeling, squatting, crouching, walking or standing for prolonged periods.  In particular, he was of the view he was unable to use ladders or steps.  He suggested that he may be able to undertake duties of 3 to 4 hours a day at a maximum.

148     Although there is no doubt that the plaintiff has acquired skills to run a café and/or a kitchen, has the ability to drive excavators and various equipment, and indeed perform work as a delivery man, his present capacity to perform such work is severely restricted because of ongoing pain and restriction of the right hip.  After a consideration of all the evidence, I am of the opinion that the plaintiff has a capacity to perform “suitable employment” of no more than 20 hours per week and is incapable now and into the foreseeable future of generating an income from suitable employment of $34,107.00 per annum (or $655.90 per week).  In this respect, I note that, according to the material relied on by the defendant, a fulltime café or restaurant manager earns $950.00 per week and a fulltime delivery driver would earn $860 fulltime per week.

149     Accordingly, I do find that the plaintiff has satisfied the requirements of the Act in relation to pecuniary loss and, accordingly, applying the principles set out in Advanced Wire & Cable Pty Ltd & Anor v Abdulle[137] and Acir v Frosster Pty Ltd,[138] I determine that the plaintiff has satisfied the requirements of the Act in establishing leave being granted to bring common law proceedings for both “pain and suffering damages” and “pecuniary loss damages” in respect of the right hip injury that was suffered on or about 7 July 2003 with the defendant.

[137][2009] VSCA 170 at paragraphs [60]−[64]

[138][2009] VSC 454

150     Perhaps for completeness, I should add that, in any event, I consider that the evidence was overwhelming in establishing that the plaintiff had suffered “pain and suffering” consequences resulting from his right hip impairment.  Indeed, as I understood the position, the defendant, although not formally conceding such position, accepted that if there was a compensable injury, such consequences could well satisfy the narrative test in relation to pain and suffering.

Conclusion

151 Pursuant to s134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for both pain and suffering damages and pecuniary loss damages in respect of a right hip injury suffered by him on or about 7 July 2003.

152     I will hear the parties on the question of costs.

ANNEXURE A

1         The plaintiff tendered the following documents:

Exhibit 1:

·Incident report dated 8 July 2003

·Acceptance notice dated 21 June 2007

Documents found at pages 7 – 16 Plaintiff’s Court Book (“PCB”).

Exhibit 2:

·Affidavit of the plaintiff sworn 1 July 2009

·Affidavit of the plaintiff sworn 16 November 2012

Documents found at pages 30 – 34.10 PCB.

Exhibit 3:

·CT scan lumbar spine dated 17 May 1999

·CT scan lumbar spine dated 1 August 2001

·X-ray left elbow dated 8 July 2003

·X-ray pelvis, right hip, x‑ray lumbosacral spine dated 22 November 2003

·MRI scan of right hip dated 28 January 2004

·X-ray pelvis/right hip dated 9 January 2007

·Right hip radiological investigation dated 9 July 2009

·Pelvis and both hips radiological investigation dated 24 November 2010

·Hip injection and manipulation under anaesthetic dated 9 August 2011

·X-ray pelvis and right hip dated 26 March 2012

·CT scan lumbar spine dated 27 March 2012

Documents found at pages 35 – 46 PCB.

Exhibit 4:

·Medical report of Dr A Nan dated 30 November 2004

·Medical report of Dr M Bloom dated 24 November 2003

·Medical report of Barwon Health dated 10 December 2004

·Medical report of Dr M Dvish dated 22 March 2005

·Medical reports of Dr Mark Davies dated 23 April 2007, 7 August 2007 and 8 May 2008

·Medical reports of Dr Chris Daw dated 30 May 2012 and 19 November 2012

·Medical report of Mr Shay Zayontz dated 2 December 2004; Medical reports of Mr Rodney Brink dated 2 December 2004, 24 May 2005, 11 July 2005, 22 August 2005, 21 February 2006, two reports dated 6 February 2007, 7 February 2007, 8 May 2007 and 24 May 2007

·Operation report of Mr Rodney Brink dated 21 May 2005

·Medical report of Mr H Williams dated 29 June 2012 together with supplementary report of Mr Williams dated 28 November 2012

·Medico-legal reports of Mr K Brearley dated 11 August 2010 and 21 June 2012

·Medico-legal report from Mr J O’Brien dated 16 October 2012

·Medico-legal reports from Mr B Love dated 17 October 2012 and 12 November 2012

Documents found at pages 47 – 104.2 PCB.

Exhibit 5:

·Clinical notes from MedicAid Family Medical Accident Centre

Documents found at pages 104.3 – 104.8 PCB.

Exhibit 6:

·Summary of income tax returns;

·Vocational assessment dated 15 November 2006

Documents found at pages 105 – 127 PCB.

Exhibit 7:

·Clinical records of Mt Isa Base Hospital

·Letter to Dr Jackson dated 27 April 2009

·Report of Dr Morgan Evans dated 17 May 2009

·Report of Paul Patane dated 7 June 2009

·Report of Dr Gibberd dated 9 June 2009

·Physiotherapy management plan dated 11 October 2009

·Report of Dr Fraser dated 13 October 2009

·Report of Dr Gibberd dated 5 November 2009

·Report of Dr I Clark dated 2 January 2000

·CRS Australia – physical upgrade report dated 3 July 2000

·CRS Australia – vocational assessment report dated 27 July 2000

·CRS Australia – functional capacity report dated 13 September 2000

·Report of Dr William Rowe dated 13 December 2000

·Report of Dr Paul Patane dated 29 January 2001

·Report of Dr John Maguire dated 17 November 2003

·Report of John Maguire dated 12 February 2004

·Report of Dr William Doig dated 31 May 2004

·Report of Dr Carl Grace dated 29 June 2004

Documents found at pages 129 – 179 PCB.

Exhibit 8:

·Letter of termination dated 12 August 2008

Document found at page 180 PCB.

Exhibit 9:

·Correspondence from Messrs Wisewould Mahony to Mr A Dunin dated 21 May 2012

Document found at pages 181 – 182 PCB.

Exhibit 10

·First aid casualty report

2         The defendant tendered the following documents:

Exhibit A:

·Certificates of Capacity dated 8 July 2003 from Dr M Marchesani.

Exhibit B

·Letter from Slater & Gordon to Mr H Williams dated 11 May 2012

·Letter from Slater & Gordon to Mr H Williams dated 16 November 2012.

Exhibit C:

·Medical reports of Mr Zayontz dated 6 January 2004 and 18 February 2004

·Report of Mr A Dunin dated 19 July 2011

·Letter from the defendant’s solicitors to Mr Dunin dated 13 November 2011

·Report of Mr Dunin dated 13 October 2011

·Letter to Mr Dunin dated 8 August 2011

·Report of Mr Dunin dated 19 July 2012

·Letter to Mr Dunin dated 21 May 2012

·Report of Mr C Jones dated 10 September 2010

·Reports of Mr C Jones dated 8 August 2010, 9 July 2012 and 7 November 2012

·Letter to Mr C Jones dated 20 June 2012 and 18 October 2012

·Reports of Dr M Wyatt dated 6 October 2012 (and letter to Dr Wyatt dated 13 August 2012) and report of Dr Wyatt dated 29 October 2012 (and letter to Dr Wyatt dated 18 October 2012);

·Reports of Mr Polke dated 20 May 2008, 5 November 2009 and 7 August 2012 (including letters to Mr Polke dated 29 October 2009 and 12 July 2012)

·Reports of Mr I Jones dated 21 March 2012 and 19 June 2012 (together with letters to Mr I Jones dated 19 March 2012, 21 May 2012 and 4 June 2012)

·Report of Mr D Conroy dated 12 September 2006

·Report of Mr P Kudelka dated 7 July 2008

·Report of Dr Tureck dated 21 July 2008

·Report of Dr Nathar dated 29 May 2007

·Reports of Mr T J Russell dated 10 February 2004, 2 March 2004 and 3 June 2004

·Report of Mr P Scott dated 22 January 2005

·Report of Dr Jander dated 8 July 2004

·Report of Ms Andrea James dated 6 January 2006

·Reports of Dr Chan dated 12 April 2005, 19 April 2005 and 4 May 2006

·Reports of Dr Miller dated 20 February 2006 and 22 December 2006

·Report of Dr Gee dated 10 June 2004

Documents found at pages 11, 12, 15 – 135 of the DCB.

Exhibit D:

·Functional capacity evaluation dated 5 August 2000

·Statement of Claim dated 25 June 2003

Documents found at pages 136 – 146 DCB.

Exhibit E:

·WorkCover Claim Form dated 4 December 2003

Document found at pages 150A – 150C DCB.

Exhibit F:

·Job descriptions put to plaintiff in cross-examination

Document found at pages 153 – 162 DCB.

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