Cook v Equipment and Service Co Pty Limited

Case •

[2015] NSWDC 397

•

21 October 2015

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Cook v Equipment & Service Co Pty Limited [2015] NSWDC 397
Hearing dates:19-21 October 2015
Date of orders: 21 October 2015
Decision date: 21 October 2015
Jurisdiction:Civil
Before: Neilson DCJ
Decision:

Leave to the plaintiff to commence proceedings against the defendant claiming damages under MACA

 

Proceedings transferred back to Albury

 

Plaintiff to file and serve a statement of claim in the form attached to the notice of motion, filed on 20 February 2015, within 14 days

 

Defendant to file and serve a defence to the statement of claim within 28 days of service of the statement of claim

 

Listed for directions at the next civil sittings of the District Court at Albury

 

Liberty to either party to apply to the Registrar at Albury for any earlier directions hearing or status conference

 Costs of the notice of motion are the defendant's costs in the cause
Catchwords: MOTOR ACCIDENTS COMPENSATION - Application to commence proceedings after expiration of limitation period of 3 years – Non-statutory considerations when applying the statutory provisions – Whether full and satisfactory explanation of delay – Plaintiff’s personal circumstances – Plaintiff’s dealings with lawyers – Plaintiff living, working and injured in Western New South Wales
Legislation Cited: Motor Accidents Compensation Act 1990
Category:Procedural and other rulings
Parties: Wayne George Cook (Applicant)
Equipment & Service Co Pty Limited (Respondent)
Representation:

Counsel:
Mr I Judd (Applicant)
Ms K Balendra (Respondent)

  Solicitors:
Simpson Law (Applicant)
Turks Legal (Respondent)
File Number(s):2015/53697
Publication restriction:No

Judgment

  1. HIS HONOUR: There is currently before me here at Griffith a "Notice of Motion" filed at Albury on 20 February 2015. That notice of motion was listed for hearing at Albury on 2 March 2015. The "Notice of Motion" is in fact an originating process. The defendant filed an appearance on 25 February 2015. On 2 March 2015, when the notice of motion was first returned at Albury, short minutes of order were made at Albury listing the motion for hearing at the Griffith sittings of this Court on 1 June 2015. Subsequently, the date is not at all clear from the documentation in the file, the motion was transferred from the Griffith District Court to the Sydney District Court. The matter was then listed for hearing in the District Court at Sydney on 17 August 2015. On that day it became before my colleague Gibson DCJ, who spent some considerable time hearing evidence given by the plaintiff and hearing addresses. Eventually her Honour granted an adjournment to the plaintiff, an adjournment which she indicated she thought the plaintiff ought seek, and set the matter down for hearing at the sittings at Griffith commencing on 19 October 2015. Her Honour, at that stage, ordered the plaintiff to pay the defendant's costs occasioned by reason of the vacation of the hearing date of the notice of motion.

Irregularity excused

  1. The "Notice of Motion" would formerly have been called an originating notice of motion. Such is now an obsolete procedure. The proceedings ought to have been commenced by a summons. However the defendant does not take that point and I excuse the irregularity. I will treat the "Notice of Motion" filed at Albury on 20 February 2015 as a summons.

Relief sought

  1. The primary prayer for relief is that the plaintiff have leave, pursuant to ss 109 and 72 of the Motor Accidents Compensation Act 1990, to issue a statement of claim against the defendant in accordance with the draft statement of claim annexed to the originating process. The proposed statement of claim alleges that on Friday, 1 April 2005 at approximately 4.30pm, the plaintiff was working at premises used by the defendant at Kiakatoo Road, Condobolin, with other employees of the defendant, namely Mr Dylan Howarth and Mr Daniel Gordon, when Mr Howarth drove a forklift identified as "an army green coloured motorised 4 tonne forklift", which was carrying a tractor wheel. As Mr Howarth approached the plaintiff driving the forklift, behind the plaintiff, the tractor wheel fell off the forklift and struck the plaintiff on the back and the leg. According to the proposed statement of claim, the tractor wheel was estimated to have weighed 500 kilograms.

  2. This is, on its face, a claim for damages by an employee against his employer. However the proposed statement of claim makes it clear that the relief claimed is damages pursuant to the Motor Accidents Compensation Act 1999. I understand that the defendant maintains that this was not an accident covered by the Motor Accidents Compensation Act 1999 ("MACA") but that cannot be agitated on this application. The plaintiff does not seek, in the alternative, damages against his employer modified by the Workers Compensation Act 1987 as in force at the time of the accident alleged on 1 April 2005.

Relevant legislation

  1. Pursuant to s 72 of MACA, a claim must be made within six months after the relevant date for the claim. The relevant date here is 1 April 2005. Section 72 otherwise regulates how a claim is to be made. It is common ground that a claim was not made in accordance with s 72(1) in that the claim that was made was made much longer after 1 April 2005 than is permitted by the statute. The claim was not in fact made until it was forwarded to the relevant insurer under cover of a letter of 3 March 2014. However, the late making of claims is governed by s 73 of MACA. Section 73(4) is in the following terms:

"The insurer loses the right to reject a late claim on the ground of delay if the insurer:

(a) does not, within 2 months after receiving a claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or

(b) does not, within 2 months after receiving an explanation for the delay, reject the explanation.”

The insurer did neither of the things provided in pars (a) and (b) of subs (4) and accordingly has lost the right to reject the plaintiff's late claim for damages under MACA. That is very properly conceded by learned counsel for the defendant. Accordingly, the plaintiff needs the leave of the Court to proceed under s 109 of MACA.

  1. Section 109(1) provides that a claimant is not entitled to commence proceedings in respect of a claim more than three years after the date of the motor accident to which the claim relates, except with the leave of the court in which the proceedings are to be taken. Subsection (2) provides for the postponement of the running of time in certain circumstances that are not here relevant. Subsection (3) provides this:

"The leave of the Court must not be granted unless:

(a) the claimant provides a full and satisfactory explanation to the Court for the delay, and

(b) the total damages of all kinds likely to be awarded to the claimant if the claimant succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134 as at the date of the relevant motor accident."

It is clear from s 109(5) that this limitation provision replaces the limitation provision contained in the Limitation Act 1969. Accordingly, the plaintiff must provide to the court a "full and satisfactory explanation" for his delay and also must establish the monetary threshold provided by s 109(3)(b). That monetary threshold, I am told, is $85,250.

Non-statutory considerations

  1. The first thing I should say is this. Section 109(3) does not of itself provide that the only matters that the plaintiff must prove in order to obtain the leave of the court are the two matters contained in it. Unless those two matters are proven, the court cannot grant leave. However, the court, in my view, ought not grant leave if other matters are not adequately proven. For example, I believe it is otiose to grant leave to anybody to proceed after the expiration of a limitation period if there is no arguable cause of action. The granting of leave in those circumstances would be otiose. In accordance with ordinary principles relating to the limitation provisions, I would also be extremely reluctant to grant leave if the defendant were able to demonstrate actual prejudice.

  2. In the current proceedings, the plaintiff appears to me, on what I have read, to have a good cause of action. That is, it is certainly an arguable case and one which is very hard to see being defeated in part, let alone in whole. Furthermore, as will become clear when I discuss the circumstances of the plaintiff's accident, the defendant cannot prove any actual prejudice at all. The relevant actors in the plaintiff's injury, Mr Gordon and Mr Howarth, are alive and have provided statements to the defendant. A responsible officer of the defendant, who supervised the plaintiff's employment, is also available and has provided a statement. The tractor in question, whilst unregistered, existed at the time the matter was investigated by the defendant and photographs of it are readily available to the parties and copies of those photographs, albeit that those copies are poor, have been provided to the Court. Accordingly, the only real impediments to the plaintiff obtaining the leave he seeks are the two matters contained in s 109(3).

The plaintiff’s background

  1. The plaintiff's background and education are relevant to the delay in the commencement of proceedings. The plaintiff was born in Young on 26 September 1955. He is currently 60 years old. His family moved from Young to the Sydney metropolitan area when the plaintiff was in primary school. He then attended high schools in the Northern suburbs of Sydney. His last high school was the Beacon Hill High School. The plaintiff left school in year 10. He did not finish year 10. I assume therefore that he did not obtain the School Certificate.

  2. The plaintiff's first job was work with a furniture removalist moving furniture. Clearly that could only have been labouring work because the plaintiff at the age of 16 was too young to drive a pantechnicon. Indeed, he was too young to drive any form of vehicle. The plaintiff worked as a furniture removalist for about six years. He was still living with his family during that period of six years. The family then moved to Port Macquarie, as his parents had bought a caravan park there. The plaintiff then worked in his parents' caravan park for about six years. He then took up work as an interstate truck driver for about five years.

The plaintiff’s job

  1. In the 1980s he obtained work which eventually led to his obtaining the qualification of a diesel motor mechanic. His first job as a diesel motor mechanic was working on farm machinery for a period of about nine years. In 2001 the plaintiff moved to Lake Cargelligo. On 18 June 2001 he obtained work as a mechanic with the defendant. The plaintiff's affidavit suggests that his period of employment with the defendant commenced in 2002, but the records of the defendant tell me otherwise. The plaintiff was to work with the defendant until 9 March 2006.

  2. The plaintiff worked for the defendant at Condobolin. The distance between Lake Cargelligo and Condobolin is 95 kilometres. The plaintiff travelled about one hour each morning to work and drove for another hour each evening home from work. The defendant had premises in Condobolin itself, those premises being a showroom, machinery display area and workshop. The defendant also had the property at Kiakatoo Road, which was on the "edge of town". The premises at Kiakatoo Road were used when it was necessary to work on "larger equipment".

The accident

  1. On 1 April 2005, the plaintiff went to the Kiakatoo Road premises to work on a four wheel drive Allis Chalmers tractor. That was a large tractor with a "dual wheel set up", which meant that it had two wheels on the side of each of its two axles. A photograph of a similar type vehicle is photograph number 8 in a factual investigation carried out on behalf of the defendant, which is exhibit D to the affidavit of Adele Louise Fletcher, the solicitor for the defendant. A photograph of one of the wheels of a similar type of wheel that was involved in the plaintiff's accident is photograph number 9 in the same factual investigation report. The caption to the photograph estimates that the weight of the wheel with the tyre on it is between 130 and 180 kilograms and that the height of the wheel itself is a height of an average man, that is about 5'10" using old terminology, perhaps 180 centimetres high.

  2. On 1 April 2005 the plaintiff was working with Daniel Gordon, and Mr Howarth, whom the plaintiff called an apprentice. According to the same factual investigation report, Mr Howarth's first Christian name is spelt D-Y-L-A-N and his surname is H-A-W-O-R-T-H. At the time Mr Howarth made his statement on 16 February 2015, he was 27 years old. Ten years ago he would have been about 17. He would have been a very young man. In his statement he said that he worked for the defendant not as an apprentice but as a "yard labourer".

  3. I shall shortly quote from Mr Haworth's statement but I need to explain a few things. The first is that Mr Howarth described the property at Kiakatoo Road, Condobolin, as "the block". The forklift is described in the factual investigation report as a Massey Ferguson frontend loader to which forks were attached such that the front end loader could work as a forklift "but it also had arms which go up and down at an angle or straight up and down depending on how [the operator] operated the levers". Photographs of this piece of plant are numbered 4, 5, 6 and 7 in the factual investigation report. The first of those photographs describes the Massey Ferguson as being approximately 35 years old and it is still being in use at the insured's premises at Kiakatoo Road, Condobolin.

  4. Mr Howarth's statement contains this:

"[7] At the time of the accident in 2005, I have been operating the Ferguson since 2003. As far as I am aware, none of the forklifts at the company were registered for road use. As far as I am concerned, I was competent to operate the Ferguson and Wayne Cook was confident in me operating it.

[8] On the day of the accident, which was in 2005, I was working with Wayne at the block and what happened was that Wayne had to fit a tyre and wheel to a tractor that he was repairing. I assume I would have got a tyre and a wheel for Wayne somewhere in the workshop at the block and I used the Ferguson to pick it up and then take it back.

[9] It had forks like a forklift, but being a frontend loader it had the arms which can go up and down at angle or straight up and down depending on how I operated the levers.

[10] That day I would have loaded the tyre and wheel on. I don't recall how I did it, but I do recall being at the tractor and Wayne being there and I drove up with the wheel on the Ferguson, stopped, lowered the forks and as I did so it might have been too fast or it could have been too low and the wheel and tyre fell forward off the forks and I can't recall whether Wayne was standing facing the tractor or whether he was leaning or squatting. He could have been doing something up on the tractor.

[11] I remember it fell forward and hit him on one of his legs and the force of it pushed him over. I am not sure how much a wheel weighs. I jumped off the machine and made sure he was okay. He sat there for a bit because he was a bit stunned or shocked."

It would appear that Mr Howarth committed casual acts of negligence in the process of unloading the wheel from the piece of plant that he was operating. He either lowered the forks too quickly or they could have been lowered too low. It was his operation of the piece of plant that caused the wheel to fall off and strike the plaintiff.

  1. Another way of looking at it, is that the system of work which the defendant ought to have instituted should have made Mr Howarth, as the operator of the plant, ensure that there was no one in front of him who might be struck as the tyre was being loaded off the piece of plant, bearing in mind that the wheel being lowered from the piece of plant could act erratically and move forward when let off that part of the piece of plant which was carrying it. I do not need at this juncture to determine whether the accident arose out of use or operation of a motor vehicle. I have been told by Mr Judd, for the plaintiff, without demur from counsel for the defendant, Ms Balendra, that at the time that this accident occurred it was not necessary that the vehicle be driven on a public road.

  2. According to the plaintiff, he remained seated after being struck by the wheel and permitted Mr Gordon and Mr Haworth to finish the work on that day. The plaintiff then obtained a lift with Mr Gordon to take him back to Lake Cargelligo as the plaintiff was in no condition to drive. I note that Mr Gordon still lives in Lake Cargelligo. Mr Gordon's statement only confirms that an event occurred in which the plaintiff's leg, at the least, was struck by a tractor wheel, but Mr Gordon was unclear in his recollection as to what caused the wheel to fall and hit the plaintiff's body. From Mr Gordon's statement, it is clear that he is not in a position to rebut either what Mr Howarth admits or what the plaintiff says as to the cause of the plaintiff's accident.

Treatment

  1. The plaintiff said that the accident occurred on a Friday. 1 April 2005 was indeed a Friday. The plaintiff's statement said that he had to wait until the following Monday to see a medical practitioner. However, medical records that were subsequently obtained indicate that the plaintiff first went to see Dr Richard Tabba at the Lake Cargelligo Medical Centre in Canada Street, Lake Cargelligo on Wednesday, 6 April 2005. Dr Tabba's computerised recordkeeping is exiguous. All that his notes contain for the year 2005 are prescriptions that he made and tests that he ordered. I know that on Wednesday, 6 April 2005, Dr Tabba prescribed Keflex, a strong antibiotic, and ordered pathology tests. He issued a certificate bearing date 6 April 2005. That certificate answered the question "how the injury occurred" with this:

"Heavy object fell down on his left calf causing skin and tissue infection."

The management plan was rest, antibiotics and a dressing. Subsequent medical certificates issued by Dr Tabba up until 10 June 2005 only describe an injury to the plaintiff's left calf with a subsequent infection and abscess and ulceration leading eventually to cellulitis of the left leg requiring surgery. The medical certificate of 10 June 2005 certified the plaintiff as fit for his pre-injury duties on 14 June 2005.

  1. Annexure A to Mr Cook's first affidavit is the first page of his workers compensation claim form. The second page of that document is exhibited in the factual investigation report that is annexed to Ms Fletcher's affidavit, but, unfortunately, it is illegible. The claim for compensation indicates the plaintiff did not start work on 7 April 2005. Accordingly, it appears the plaintiff finished work on Friday, 1 May 2005, probably worked on Monday 4, Tuesday 5 May and Wednesday, 6 April 2005, but on that day he went to see Dr Tabba, obtained the certificate and did not start work on Thursday, 7 April 2005.

  2. The claim for compensation refers not only to a damaged left calf muscle but to a damaged back. There is no reference in any of Dr Tabba's certificates to a back injury, nor can one discern from his electronically made notes in 2005 anything that suggests a back injury. However, it is to be noted that not all of the plaintiff's visits to Dr Tabba are recorded in the computerised clinical notes. For example, there is a certificate bearing date 9 April 2005 but no corresponding record in the clinical notes. There is also a certificate dated 6 May 2005, but no entry for that date in the clinical notes. The same can be said for 20 May 2005 and certificates given on 30 May 2005 and 10 June 2005.

  3. After the "clearance certificate" for 14 June 2005, the next record of the plaintiff’s attending upon the Lake Cargelligo Medical Centre is an attendance by the plaintiff on 5 September 2005 when he was prescribed Seretide and Ventolin, two prescriptions usually given to those suffering from asthma. The plaintiff saw Dr Tabba on 24 January 2006 about high blood pressure and complained of a sore throat and a headache. The reason for the visit, according to Dr Tabba, was high blood pressure, but it is probably more likely the plaintiff went to complain about a sore throat and headache and the doctor diagnosed hypertension. There were further attendances upon Dr Tabba for hypertension on 27 January 2006 and Dr Al Khemesy on 31 January 2006. On 13 February 2006 the plaintiff saw Dr Al Khemesy about pain in his right shoulder which had been severe for the previous four days. The plaintiff also had some shortness of breath and felt a bit dizzy. The plaintiff attended on two further occasions in February 2006, for his shoulder condition.

  1. On 21 April 2006, the plaintiff went back to the Lake Cargelligo Medical Centre and complained to Dr Tabba about his right knee. There is an attendance upon Dr Tabba on 8 August 2006 for sinusitis. On 13 September, the plaintiff complained to Dr Tabba about his right knee again. There was no further attendance reported in 2006.

  2. On 15 May 2007, the notes record that the plaintiff saw Dr Bardauil with respiratory complaints, including a sore throat and a nasal discharge. On 21 May 2007 the plaintiff had an attendance of Dr Bardauil about pain in his left leg which was referable to the injury currently in question, and the plaintiff told the doctor that his left leg was still giving him pain and discomfort. Dr Bardauil prescribed an ultrasound of the plaintiff's left leg. Approximately a fortnight later, Dr Bardauil prescribed Keflex again. On 12 October 2007, the plaintiff again complained of pain in his left calf and Digesic was prescribed. I understand that to be a painkiller. The plaintiff was examined by Dr Tabba on 16 November 2007 and the consultation appears to have mainly concerned the plaintiff's cardiac condition or a suspected cardiac condition. There was a general medical examination on 30 November 2007 by Dr Tabba which only records that the plaintiff was "feeling good in himself" but prescribed some medication. It is unclear for what.

  3. On 29 January 2008, the plaintiff saw Dr Bardauil and complained of pain in his right knee and also "calf pain". One might infer that that was a complaint of pain in the left calf. The doctor prescribed a number of medications, mainly painkillers, and referred the plaintiff to Dr Warwick Huntsdale. There is no report before me from Dr Warwick Huntsdale of Wagga Wagga. Dr Huntsdale is an orthopaedic surgeon. All I know about that consultation is a history recorded by Dr Alan Hopcroft who examined the plaintiff at the request of his current solicitor on 13 August 2014. That history is this:

"The patient was reviewed by Dr Warwick Huntsdale, orthopaedic specialist in Wagga Wagga on 25 February 2008 but the patient felt that consultation was cursory and dismissive."

I do not know about what symptoms the plaintiff complained of to Dr Huntsdale. On 22 August 2008, the plaintiff complained to Dr Tabba about being overweight and feeling tired and having pain in his joints and having a heaviness in his chest. The plaintiff told the doctor that he would like to lose weight and discussed with Dr Tabba an operation to help him lose weight. It would appear that by 22 August 2008 the plaintiff was gaining weight and was concerned about it. This is highly relevant and I shall return to it.

  1. Records were made of the plaintiff’s attending at the Lake Cargelligo Medical Centre on 3 September 2008, 4 September 2008, 7 May 2009 and 12 May 2009 and the only entry which gives me any information whatever is that the plaintiff was concerned about "morbid obesity" on 7 May 2009. There was an attendance upon Dr Tabba on 1 September 2009 for bronchitis. On 4 December 2009, the plaintiff complained to Dr Bardauil at the Lake Cargelligo Medical Centre about his left leg, specifically mentioning the left knee and the heel. Whether that is related in some way to the plaintiff's left calf injury I do not know. There was also a reference to left knee pain on 10 December 2009 and 21 December 2009. However, the same notes record that on 4 January the plaintiff felt that his knee pain was better and that he was "back to normal".

  2. However, on 19 April 2010 there was a complaint of back pain. There was no knee pain and no sciatica. X-rays were ordered. I know that the X-rays were performed on 5 May 2010 by Dr Albert Gutman at Dr Bardauil's request. That is the first recorded medical complaint of back pain.

  3. An issue in these proceedings will obviously be whether the plaintiff injured his back in the accident on 1 April 2005 and, if so, whether his back symptoms persisted up until they started to be documented. However, the workers compensation claim form made on or shortly after 7 April 2005 clearly indicates a back complaint. Clearly I have not had the benefit of a full hearing. However there is really no major challenge to the plaintiff's credibility and a tribunal of fact could well accept that the plaintiff's statements that he had back pain at the time of the accident on 1 April 2005 and that it was persisting when he made his claim for workers compensation and, albeit that he was returned to work, he continued to have back symptoms. One cannot assume, when one looks at the records of the Lake Cargelligo Medical Centre, that all the plaintiff's complaints were recorded. One could not even assume that all his attendances were recorded. The Lake Cargelligo Medical Centre may no longer exist, as the plaintiff's second affidavit tells me. Some records of the lake Cargelligo Medical Centre wound up in storage with the local council. He did not know why that had happened. Mr Simpson, the plaintiff's solicitor, in his affidavit sworn on 25 September 2015, annexes the records of that centre but it is clear that they were produced by an officer of the Lachlan Shire Council.

Post-accident work

  1. The plaintiff did return to work on 14 June 2005. Paragraph 15 of the plaintiff's first affidavit is this:

"The work with the defendant was really too heavy for me after the injury. My back was always sore and so was my left leg. I had to look around for light work as there was no light work available with the defendant."

It is clear that the plaintiff's work for the defendant required him to work, inter alia, large items of plant used in farming. The plaintiff resigned his employment with the defendant on 9 April 2006. He then found employment with Lake Tyre and Exhaust in Lake Cargelligo itself. The plaintiff worked for that company between 3 April 2006 and 26 October 2007. The plaintiff described the work for that employer as being "light vehicle" mechanical work. However, that employer ran out of work because of the drought and that led to the plaintiff’s being retrenched on 20 October 2007.

  1. The plaintiff then spent five months "looking for suitable work". On 25 March 2008 he found work with a business known as Cornish's at Condobolin. That is an agricultural machinery business. The plaintiff worked for it as its service manager. In par 18 of his first affidavit the plaintiff said this:

"Working as service manager meant that I did not have to work 'on the tools', so the work was much lighter than the work I had been doing. But again, effects of drought saw me laid off from this job after about two years."

In fact, he was laid off on 7 January 2010. Not only was the plaintiff laid off, but the "shop" in which he was working closed, meaning either that Cornish’s has closed or their service business closed. The plaintiff has not found work since. The plaintiff then obtained Newstart Allowance from the Commonwealth of Australia.

  1. One should note that the plaintiff’s first complaint about problems with obesity was on 22 August 2008, some five months after had started working for Cornish's. One must also note that the first recorded complaint of low back pain was after the plaintiff had finished at Cornish's. After 19 April 2010, there are records of complaints about the plaintiff's back and also his left leg and of the need to diet. On 11 October 2010, the notes of the Lake Cargelligo Medical Centre indicate the plaintiff was considering going onto a disability pension. He was examined by Dr Bardauil for that purpose on 5 November 2010. According to the plaintiff's affidavit, he obtained the Disability Support Pension in early 2011 because the condition of his back and the condition of his left leg were getting progressively worse.

Consideration (1)

  1. The plaintiff's working for the defendant doing, inter alia, heavy mechanical repair work between returning to work on 14 June 2005 and stopping work on 9 March 2006, some nine months later, is not, in my view, inconsistent with the plaintiff’s having continuing complaints of low back pain. Indeed, his giving away that job is consistent with a desire to find lighter work. There was no challenge to the plaintiff's description that his work with Lake Tyre and Exhaust commencing on 3 April 2006 persisting until 26 October 2007 was lighter mechanical work which he appears to have been able to do. That work ran out because of economic conditions in the "bush" because of drought. The plaintiff then looked for work and eventually found the work at Cornish's, and that was even lighter work than the work he had done with Lake Tyre and Exhaust. The plaintiff's case, however, is that his back pain continued and because his back pain interfered with his ability to do things, he put on weight and his weight gain became morbid leading to a large increase in his weight leading to a need to have gastric banding surgery which the plaintiff hopes to undergo shortly. Again, the plaintiff's obesity increasing after he stopped work with Lake Tyre and Exhaust and requiring medical intervention when he is working at Cornish's is quite consistent with the plaintiff's allegation that because of back pain he limited his activity and that led to his weight gain.

  2. Of course, it might be argued that the plaintiff's weight gain caused the back pain, but that has not been submitted nor was the plaintiff challenged in that regard.

The plaintiff’s dealings with lawyers

  1. It has been said on behalf of the defendant that the plaintiff's failure to seek legal advice after he needed to give up his job with the defendant and his failure to seek legal advice after he lost his job at Lake Tyre and Exhaust and his failure to seek legal advice after he lost his job with Cornish's is not satisfactory, that a man in the plaintiff's position would have sought legal advice when his income was removed because the plaintiff says his employment was being affected by his back pain. However, it must be borne in mind that the period of unemployment between the defendant and Lake Tyre and Exhaust was short, a period from 10 March until 2 April 2006, a period of less than four weeks. The proximate cause for the plaintiff's losing his job with the Lake Tyre and Exhaust, was not back pain as such, or obesity as such, but the drought. No-one in the country would think of seeing a lawyer because he or she lost work because of a drought. The same observation can be made of the loss by the plaintiff of his work with Cornish's.

  2. The defendant also submits that the plaintiff's failure, after losing his job at Cornish's, to make any approach to lawyers is hardly satisfactory, but things go at a more leisurely pace in the country than they do in the city. As the plaintiff's obesity because worse and his back symptoms appeared to have become worse because now they were being reported and recorded, the plaintiff sought firstly the disability support pension. After obtaining the pension, the plaintiff then sought assistance from lawyers. In his affidavit of 18 September 2015, the plaintiff said this about seeking legal assistance:

"[2] Between the time of my accident on 1 April 2005 and until the time I consulted CMC Lawyers of Market Street, Sydney, in [or] about February 2011, I did not think I had any right to make a claim for compensation and as such I did not approach a solicitor or seek legal advice during this period.

[3] In my affidavit of 13 April 2015, I set out from pars 12 to 19 inclusive what I did between the time of my accident and when I first sought legal advice in early 2011 regarding my entitlements. During that period, my focus was on managing my injuries and getting back to work. I had, during that period, expected to recover sufficiently from my injuries to resume a normal working and social life. However, it became apparent to me by about late 2010 that that was not going to be the case. In late 2010 or early 2011 I saw an advertisement on local television from lawyers in Wagga Wagga about compensation law. While I cannot remember the name of this legal firm, I can recall that the advertisement posed a question to the following effect, 'Are you getting all you're entitled [to] following a workplace accident'.

[4] Not knowing whether I was receiving all my entitlements, I was prompted by the ad to search the internet for compensation lawyers and that is when I found the name CMC Lawyers in Sydney. I then contacted CMC Lawyers by phone. This would have been in early 2011.

[5] My dealings with CMC Lawyers was [sic] always by phone and correspondence. I never met them face to face. After an initial phone conversation with one of their female solicitors, as far as I can recall all other phone calls were to secretaries, I would say that I probably had less than half a dozen phone conversations with anyone at CMC Lawyers and these were mostly initiated by me following them up. My phone conversations with CMC Lawyers were all short in duration.

[6] At para 26 of my earlier affidavit when I set out the circumstances which led me to want to seek further legal advice after CMC Lawyers completed my claim. Before contacting Mr Simpson, I had a conversation with someone from the CGU Insurance which had been handling my compensation claim. That person told me that I should get another lawyer. I asked that person 'how do I do that'. He said to contact the 'Law Services Office', which I did. I now know that the formal name for the Law Service Office is the WorkCover Independent Review Office (WIRO). After phoning WIRO and being shuffled from one person to the other, I was given a list of names of lawyers to contact and Mr Simpson's name was the first name on the list. I then rang and spoke to Mr Simpson and being happy with the phone call, I decided to engage his services to assist me with my claim. This was in late November 2013. What then followed is set out in my earlier affidavit from para 26 onwards."

  1. A number of documents concerning the plaintiff's interaction with CMC Lawyers are annexed to the plaintiff's first affidavit. The first is what is described as a "fact sheet" which is essentially a synopsis of workers compensation benefits made by CMC Lawyers that that firm appears to send to clients. And the second part of that synopsis is a number of frequently asked questions to which standard answers are provided. The document clearly refers to weekly payments of compensation if a person cannot work or can only work reduced hours or in light or selected work and talks of a position where an employer does not have lighter work or reduced work hours to offer to that employer's injured worker. It does not specifically refer to the case where a worker is out of work with a reduced earning capacity but has not sought alternative work from the employer in whose employment he was injured. In other words, it is not specifically directed to the circumstances in which the plaintiff found himself after being laid off both by Lake Tyre and Exhaust and Cornish's because of drought.

  2. Another document is a document headed "client statement". It appears to be an internal document made by the firm and perhaps sent to the plaintiff by CMC Lawyers for his approval. The document has been dated 20 May 2011 by Mr Cook and he has initialled each page. Typed on the second page of the document in answer to the question, "Injuries" is the matter, "injury to leg". Underneath that is a question, "Continuing problems", which has been answered with, "Pain and restriction of movement to leg." There is also a question on the last page, "Subsequent injury", in which has been added in handwriting, "also back pain". It is unclear to me whether the words "also back pain" were made by the solicitor or made by Mr Cook. If they were made by Mr Cook, then it indicates that his back pain came on after the event, that is, after the injury of 1 April 2005, however there was a complaint of a back injury on 7 April 2005 at least. However, the important word is the adverb "also". That means additionally and would not be necessary to put that in if the back pain merely came on after the event and was unrelated. The adverb seems to suggest to me that the plaintiff also developed back pain as a result of the leg injury. At least it ought to have put CMC Lawyers on notice that there was a potential claim in respect to the back, but that does not appear to have happened.

  3. Another document was a letter sent by CMC Lawyers to the plaintiff on 11 May 2011, which spoke of weekly payments, medical and treatment expenses and lump sum entitlements. It may be that the form, dated by the plaintiff 20 May 2011, was annexed to the letter of 11 May 2011, hence the plaintiff's dating it 20 May and sending it back.

  4. CMC Lawyers did arrange for the plaintiff to be seen by Dr John Garvin at his rooms in Wagga Wagga. That examination was on 1 April 2005. The third paragraph of Dr Garvin's history of the consultation of 1 April 2005 is this:

"He went on to state that he thought that the "boys" removed the wheel at the back of his knee/left calf muscles. He recalls that he was in pain, that is, "a bit of pain", but he could still hobble around. He also noticed pain affecting his lower back at the time in the centre of his lower back, but he told me that he was not sure whether this was related, he went on to tell me that he "never got much better" since this injury. He stated that, in fact, neither his lower back nor his left leg got much better following the injury."

In the fifth paragraph of the same history, Dr Garvin records the plaintiff's attendances upon Dr Tabba. This was part of that history:

"He told me that he complained to this doctor regarding his back pain as well, but the doctor did not look at his back."

Under the heading "Current Symptoms", Dr Garvin recorded a history that the plaintiff's lower back pain was worse and that sometimes he noticed that pain all day and all night. Dr Garvin also recorded that every other day the pain was at a level of nine and a half out of ten intermittently. The plaintiff was taking six Panadol Osteo tablets per day for his back pain but having no other treatment.

  1. Dr Garvin examined the plaintiff's back. His examination findings concerning the back are these:

"Examination of the lumbar spine revealed that posture appeared normal. Extension was slightly restricted and associated with pain affecting the lower back. Forward flexion was such that he was able to place his fingertips to a level of the knees and associated with pain affecting the lower back. Lateral flexion to the left and right was such that he was able to place his fingertips to the level of the knees and movements to both left and right were associated with pain. Rotation appeared full. He told me that there was pain on rotation to the right...

He mentioned at this time that he had suffered from weight problems all his life, especially after giving up smoking and injuring his left leg.

Straight leg raising while being seated at the side of the examination couch was to 80 degrees bilaterally. Rotation of the hips was associated with "a bit of a strain on the back". There was restriction of movement of the hips and knees, most probably secondary to his morbid obesity."

The findings on examination go on to give the range of the movements of the plaintiff's lower limbs and other findings concerning the lower limbs. Unfortunately, Dr Garvin did not have the benefit of the plaintiff's low back X-rays.

  1. The diagnosis provided by Dr Garvin was of a crushing or shearing injury to the plaintiff's left calf and also probably a strain of the plaintiff's left knee. He said nothing about the diagnosis of the plaintiff's low back complaint, nor does he say anything about its relationship to the injury presently in question.

  2. Dr Garvin diagnosed a 4% whole person impairment, in essence because of the damage to the plaintiff's left calf muscle. This report was clearly provided by CMC Lawyers to the workers compensation insurer, CGU. They made the plaintiff an offer of $5,000 which represents the sum applicable for 4% WPI. The plaintiff was advised to accept that offer and he did so. On 18 August 2011, CMC Lawyers wrote to the plaintiff solicitor advising him that his claim for permanent impairment had been "successfully concluded" by the agreement to pay $5,000. The document then continues thus:

"Your Workers Compensation insurer has conceded that you have suffered a permanent impairment as reflected in the medical report prepared by Dr Peter Conrad".

There is no evidence the plaintiff ever saw Dr Peter Conrad. He had been examined by Dr John Garvin. The misreference to the doctor clearly indicates that little care, skill and consideration was given to the plaintiff's case by CMC Lawyers. The letter goes on to provide the plaintiff with documentation that he should sign in order to obtain the sum of $5,000.

  1. One thing that CMC Lawyers did do was to put, on 11 May 2011, the workers compensation insurer on notice that should the plaintiff establish that he had "a 15%" WPI that they intended to claim "common law damages". I assume that what is meant by that is that if the plaintiff could establish 15% WPI they would make a claim for damages as modified by the Workers Compensation Act 1987. The threshold under the workers compensation legislation is 15% WPI but under MACA it is only 10% WPI.

  2. In his first affidavit, the plaintiff said this:

"[25] I have to wear a compression stocking on my left leg each day and I take medication daily for my injuries. This includes Tramal 50 milligrams and Panadol Osteo. The accident has led me to lead a sedentary lifestyle which has impacted further on my health and I have put on a lot of weight as a result.

[...]

[28] In late November 2013 and being completely despondent about my situation, I obtained further legal advice from Peter Simpson of Simpson Law..."

  1. I have already recited how the plaintiff came to consult Mr Simpson. It is abundantly clear that the plaintiff was never told by CMC Lawyers that he may have a potential to claim damages under MACA, although he had not yet established any ability to claim damages under the workers compensation scheme. That advice was only given to him by Mr Simpson.

  2. Mr Simpson, in his affidavit of 18 September 2015, has set out at some length, commencing at par 9, what he made of the plaintiff's initial instructions and of the documentation that the plaintiff was able to provide to him from CMC Lawyers and his perception of what the plaintiff's entitlements might be and what subsequently occurred. That information is, in my view, full and satisfactory.

Further medical evidence

  1. Amongst other things, Mr Simpson arranged for the plaintiff to be seen by Dr Hopcroft. Dr Hopcroft saw the plaintiff at Albury on 13 August 2014. Dr Hopcroft tells me that the X-ray of 5 May 2010 shows moderate narrowing of the L2-3 disc and moderate osteophytosis at that level and in the lower thoracic spine and also involving L1-L2 and L3-L4. Dr Hopcroft expressed this view:

"The patient has carried a significant injury to his left calf from the work related incident of 04 April 2004 and the ongoing and significant left sided limp has rendered symptomatic a low grade lumbar spondylitic problem and has incurred some non identifiable radicular symptoms into both legs as a result of those changes."

According to Dr Hopcroft's thesis, the plaintiff's low back condition is not primarily caused by the event of 1 April 2005, but is secondary to the injury to the left calf caused by that event. The history recorded by Dr Hopcroft is that the low back pain came on within probably a week of the accident now in question. According to Dr Hopcroft, the patient has a WPI of 5%, but that has to be reduced to 4% because of some pre-existent degenerative changes due to, one would think, constitutional spondylosis or degenerative disc disease, another way of expressing it.

  1. The defendant has qualified Dr James Vote, an orthopaedic surgeon. Dr Vote examined the plaintiff on 23 April 2005. The history accorded by Dr Vote is that given by the plaintiff in these proceedings, that is, his noticing back pain at a time of the event 1 April 2005 and of the plaintiff’s continuing to suffer lower back pain since that time. Dr Vote also has a history of the plaintiff's weight increase. There is a little discrepancy in that history with Dr Hopcroft's history on the same issue.

  2. According to Dr Garvin's report of 4 July 2011, following upon his examination of the plaintiff on 20 June 2011, the plaintiff then weighed 210 kilos, having reduced from 235 kilos some six or seven months earlier. On 13 August 2014, Dr Hopcroft noted that the plaintiff was 216 kilos. When the plaintiff saw Dr Vote on 23 April 2015 he weighed 230 kilos and was looking to have gastric surgery, as I have earlier stated.

  3. When Dr Vote examined the plaintiff, he found very marked swelling of the left calf with localised oedema and a significant area of discolouration and induration measuring approximately 12 centimetres X 12 centimetres at the site of the surgery which had been practised to relieve the initial haematoma. Dr Vote thought that there was some sensory loss distal to that pathology in the dermatome of the sural nerve. Nevertheless, the plaintiff's ankle movements were satisfactory. Dr Vote thought that the plaintiff had been a suffered of lymphoedema which caused significant swelling of the lower limbs due to a lymphatic disorder, but he thought that on the left side that had been "grossly exacerbated" by the haematoma caused by the initial injury and the need for the subsequent surgery. It is clear to me that Dr Vote is of the opinion that the lymphatic disorder was a constitutional one.

  4. As far as Dr Vote was concerned, he thought it probable that the plaintiff had some degree of degenerative change at both the L4-5 and the L5-S1 areas of the low back, although there was no radiological investigation at those levels. Dr Vote expressed a number of opinions in answer to specific questions, a number of those opinions are these:

"I would consider that without the injury he sustained on 01/04/2005, he would in all likelihood have been able to continue working in his pre injury capacity as a Motor Mechanic. He would not appear to have had any problems with his back in a symptomatic sense prior to that incident."

I would consider that his limited work capacity at this point of time is almost exclusively related to his physical injury in relation to his back and left leg. He has put on weight since the accident, but he has always been a very big man with lower lymphoedema but this did not seem to impact upon his to ability work. I understand that he is looking to get gastric banding or similar surgery carried out in Melbourne.

He would appear to be able to do light work, partly ambulatory and part sedentary and has done so since that time.

I do not think he is currently capable of performing his pre injury duties and I do not see him getting back to pre-injury duties".

Dr Vote is a very experienced and well respected orthopaedic surgeon. I have been reading his reports now since 1976. A report from such an eminent orthopaedic surgeon deserves respect. Dr Hopcroft is a general surgeon, not an orthopaedic surgeon. Dr Vote has no problem in ascribing the plaintiff's back problem to the injury of 1 April 2005, nor does he have any problem in saying that the plaintiff is now unfit to do the full work of a motor mechanic’s work, for example, work on heavy machinery. Indeed, he does not say that the plaintiff could work on light mechanical work such as the work the plaintiff did for Lake Tyre and Exhaust, rather he believes that the only type of work that the plaintiff could do is the sort of work he did for Cornish's at Condobolin. That work no longer exists.

Wage loss

  1. One of the problems that the plaintiff faces, however, is that the work with Cornish's was well remunerated. By looking at par 31 of the plaintiff's first affidavit, I can ascertain that during a period of 18 months the plaintiff was working for Cornish's he earned approximately $88,000 which works out as $1,128 per week gross. A real question is what the plaintiff would be earning in work as a heavy motor mechanic. Annexure K to the plaintiff's first affidavit is some intelligence about wages for mechanics in 2015. The average weekly total earnings in mid-2014 for motor mechanics were $1,084 giving an approximate annual income of $56,400. However, work was advertised as being available in Sydney for heavy vehicle diesel mechanic which remunerated up to $40 per hour which indicates for a 38 hour week an annual salary of $79,040 gross which is $1,520 per week gross. However, work is available in Brisbane for mobile mechanics that could return as much as $100,000 per annum gross and work is available in Perth for heavy vehicle mechanics returning up to $90,000 per annum gross.

  2. Another thing to bear in mind is the plaintiff's educational background. I have to accept that he had the ability to work as a service manager for Cornish's in Condobolin. However whether such work is any longer available in that part of the State is a matter of some conjecture. The problem is that these days work of a service manager often requires good computer skills and managerial training, and it has to be borne in mind that although the plaintiff is a qualified tradesman, he is a person who does not even have the School Certificate.

Consideration (2)

  1. The submissions of the defendant concerning the explanation given by the plaintiff as being full and satisfactory, are based largely on a preconception or a priori view that anyone injured would automatically complain and push it actively to ascertain and enforce his or her rights. This, if I may be permitted to say so, is a “city centric” view. This is not how life is lived in the country. One does not go to the hotel to be told by one's drinking mates to go and see solicitor X or solicitor Y to get a good result, because solicitors of that nature are few and far between in places such as Condobolin and Lake Cargelligo. Equally, those who have experienced the need for such expert attention by lawyers or suffered circumstances requiring the need for such expert attendance by lawyers are not many.

  2. The plaintiff clearly believed that he could get better whilst doing the work at Cornish's. He was clearly getting worse, albeit that it was perhaps the lightest work he had ever done. Then, when his condition continued to deteriorate after leaving Cornish's, he sought medical treatment, obtained the disability support pension and then saw lawyers but recovered the princely sum of $5,000 and had no physical contact with those lawyers at all, nor was he provided with any advice, for example, that he should sue for weekly payments. Even if he were given that advice, trading weekly payments for a disability support benefit is not something that most injured workers would do because a workers entitlement under the disability pension is better than his entitlement to weekly payments, even at the full statutory rate, under the Workers Compensation Act 1987.

  3. It is clear that the plaintiff may have had discussed with CMC Lawyers a common law action but not one governed by the MACA. The plaintiff has not given evidence before me in person, but he did give evidence before my colleague Gibson DCJ. In cross-examination by learned counsel for the defendant, Ms Balendra, it is clear that the plaintiff did not understand whatever advice was being given to him by CMC Lawyers. Consider this evidence:

"Q. Do you remember them mentioning at all about timing?

A. Vaguely.

Q. Do you remember whether they said anything to you about time limits affecting your claim?

A. No, I don't remember that.

Q. Do you remember discussing with them the circumstances of your accident?

A. Yes.

Q. Do you remember what they told you about the types of claims that you had in relation to your accident?

A. No, I don't because it was all pretty confusing.

Q. You have no recollection of any of these conversations, is that right?

A. I do remember the conversation with some somebody down there, but didn't completely understand, you know, what it was all about, so.

Q. When you say you remember this conversation, you remember having a conversation?

A. I remember having a conversation, yes.

Q. But you don't remember the contents of it?

A. No.

Q. You don't remember whether they could have told you anything about the different types of claims you could have?

A. No."

In other words, the plaintiff found the advice that he was given "confusing" and found it hard to understand. One can easily accept that, when the conversation was over the telephone or the advice was given in writing, given the plaintiff's background and education. It was only when the plaintiff sat down and talked with Mr Simpson at length that something eventuated.

  1. I am persuaded on the balance of probabilities that the explanation given by the plaintiff for his delay in seeking legal advice from Mr Simpson is full and satisfactory and I am satisfied on the balance of probabilities that what Mr Simpson has done for the plaintiff since that time is also satisfactorily and fully explained.

The monetary threshold

  1. The remaining question becomes whether the monetary threshold, has been reached. Annexed to Ms Fletcher's affidavit is a supplementary report of Dr Vote of 12 May 2015. It says this:

"Thank you for your letter of 01/05/2015. I accept your comments with regard to the assessment of Mr Cook. I have reviewed the guidelines as set out in AMA4 and referencing AMA4, p 290, Table 2, in relation to skin and scarring, Mr Cook falls into class 1 attracting a 4% whole person impairment.

In relation to his sural nerve damage, again, referencing AMA4, Table 6.8, p 89, he has a 1% impairment. Therefore, his final whole person impairment is 5% as considered under the AMA4 guidelines."

The 4% WPI given by Dr Vote for the scarring and skin damage to the plaintiff's calf is the same as that made by Dr Garvin. Dr Vote has then added a further 1% WPI because of damage to the sural nerve which is explained in the doctor's finding on examination which I have already quoted. Dr Vote does not make any comment one way or the other about the plaintiff's whole person impairment referable to his low back condition. If it were the same, and I use the subjunctive mood advisedly, as Dr Hopcroft's assessment, one would find a further 4% WPI. And if one added that to Dr Vote's 5% WPI one would come to 9% WPI. However, it is clear that the plaintiff's low back pain needs further investigation. It is clear from the report of Dr Vote himself that the plaintiff needs further investigation of his low back, that is perhaps a further plain X-ray, a CT scan or an MRI scan of the low back and it is difficult for the doctors at present state to determine the extent of the plaintiff's low back condition because of his obesity. If the plaintiff does have the gastric surgery and does lose weight, findings on examination may be more exact and the doctors may arrive at a further assessment of the plaintiff's back condition which might give him a higher WPI for the back than 4%. Furthermore, bearing in mind the date of the plain X-ray, five years after the event, it is difficult to determine whether the radiological abnormalities noted in Dr Hopcroft's report were caused by the event of 1 April 2005 or were a longstanding, pre-existing condition. It is very difficult to know, and one might be able to find medical evidence to suggest that these were the result of the injury rather than some pre-existing condition. If the plaintiff does have further investigations and the like, it is quite possible that he cross the threshold to claim for non-economic loss and, if he did so, in my view the plaintiff would recover almost the same as or greater than the monetary threshold with which I am presently concerned. However, the only way I can look at the problem is by considering economic loss.

  1. Looking at the matter conservatively, it appears to me that if I allow the plaintiff a net weekly loss of $400 per week, the net weekly loss from 8 January 2010 until today, a period of over five years and nine months, the loss is $119,600 without allowing anything for the future for a man who is currently 60 years of age, and would, but for injury, have worked for a further seven years. Furthermore, no allowance has been made for periods of his unemployment for the short period of less than four weeks between the plaintiff's leaving the defendant and starting work with Lake Tyre and Exhaust, but there was a period of some five months unemployment between Lake Tyre and Exhaust and working for Cornish's. Furthermore, the economic information before me does not allow me to ascertain whether there might have been any economic loss whilst the plaintiff was working for Lake Tyre and Exhaust compared with what he would have been earning had he stayed in the employ of the defendant, although such economic material as there is does seem to suggest the plaintiff earned more working for Cornish's than he would have earned had he continued working with the defendant.

  2. However, looking at those matters and looking at past economic loss only, and taking a very conservative approach, bearing in mind that if the plaintiff be totally incapacitated at the current time, although Dr Vote does not say so, he could recover probably $1,000 per week net, and even if one reduced that to $800 per week net, one would double the past economic loss to be over $200,000, again without allowing anything for the future. One must also bear in mind that the plaintiff has been granted a disability support pension so that some medical practitioners, at least Dr Bardauil and the Federal Government Medical Officer clearly believed the plaintiff is 85% incapacitated. In these circumstances, I am satisfied on the balance of probabilities that the plaintiff has established that he will obtain damages greater than the statutory threshold established by s 109(3)(b) of MACA.

Orders

  1. Accordingly I grant leave to the plaintiff to commence proceedings against the defendant claiming damages under MACA.

  2. I transfer these proceedings back to Albury.

  3. I order, the plaintiff to file and serve a statement of claim in the form attached to the notice of motion, filed on 20 February 2015, within 14 days.

  4. I order the defendant to file and serve a defence to the statement of claim within 28 days of service of the statement of claim.

  5. The statement of claim may be filed in these proceedings bearing the plaint number of the initiating notice of motion.

  6. Listed for directions at the next civil sittings of the District Court at Albury.

  7. Liberty to either party to apply to the registrar at Albury for any earlier directions hearing or status conference.

  8. Costs of the notice of motion are the defendant's costs in the cause.

**********

Decision last updated: 30 June 2016

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

1