Daffy v Southern Star Designer Windows Pty Ltd
[2014] VCC 2274
•1 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-02513
| KEVIN ADRIAN DAFFY | Plaintiff |
| v | |
| SOUTHERN STAR DESIGNER WINDOWS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26, 27 and 29 November 2014 | |
DATE OF JUDGMENT: | 1 December 2014 | |
CASE MAY BE CITED AS: | Daffy v Southern Star Designer Windows Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2274 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Admitted serious injury – work relationship – credit of the plaintiff
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Briginshaw v Briginshaw [1938] HCA 34; Ansett Australia Ltd v Taylor [2006] VSCA 171
Judgment: Leave granted to the plaintiff pursuant to s134AB of the Accident Compensation Act 1985 to commence proceedings at common law in respect of loss of earning capacity and pain and suffering damages in respect of injury suffered during the course of his employment with the defendant on or about 14 October 2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D Clements QC with Mr S R McCredie | Lennon Mazzeo |
| For the Defendant | Mr P B Jens SC | Hall & Wilcox |
HIS HONOUR:
1 This is an application pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”) whereby the plaintiff seeks leave to issue proceedings for common law damages for pain and suffering and economic loss. The injury identified by the plaintiff and accepted by the defendant is prolapse of the disc at L5-S1 which occurred on or about 14 October 2010.
2 The defendant concedes that the consequences for the plaintiff are serious with respect to both pain and suffering and economic loss. The sole issue in the case, therefore, is whether the plaintiff has discharged the onus of proof in establishing that the injury arose out of or in the course of his employment with the defendant, particularly on 14 October 2010.
Paragraph (a) background
3 In 2007, the plaintiff was appointed general manager of Southern Star Designer Windows Pty Ltd. The company produces windows and glass doors for domestic homes from premises in Progress Street, Dandenong South. There were approximately twelve employees working at the site in 2010.
4 The plaintiff alleges that the work was fast-paced and when they were busy with orders they would regularly work on the factory floor carrying and loading windows and doors ready for delivery. He alleges that each step of the process was physical with the component parts being screwed together at work stations, then lifted into the area where they were glazed before being carried and loaded into stillages ready for delivery.
5
He stated that the completed windows and doors differed in size and weight. The most commonly produced windows were 2.5 metres high and
1.8 metres wide and he estimated that they weighed approximately
50 kilograms single glazed and approximately 75 kilogram double-glazed.
6 The plaintiff owned an approximate 20 per cent shareholding in the defendant company, for which he had paid approximately $300,000.
7 By October 2010, the plaintiff was in dispute with the other shareholders and the managing director with respect to accounting practices to do with the company, which he said, was to his – that is the plaintiff's – financial disadvantage.
8 In and around October 2010, the plaintiff stated he performed more manual work in the factory due to the recent resignation of a factory supervisor.
The dispute
9 The context of the dispute arises out of the following circumstances:
(i)
The plaintiff attended a general practitioner, Dr Shahbaz, on
6 October 2010 complaining of sciatic-type symptoms which he had noticed coming on whilst on a ride-on mower on 5 October 2010.
He was prescribed Mobic and Panadeine Forte;
(ii) At work on 8 October 2010, the plaintiff told Allison Laurens-Tearle, an administrative assistant employed by the defendant, of his symptoms. Ms Laurens-Tearle made an appointment for the plaintiff with her chiropractor, Dr Platt, for the same day. The plaintiff did not relate his symptoms to his employment, either to Ms Laurens-Tearle, or in his own mind, at that stage;
(iii) Dr Platt took a history of the onset of back pain and leg pain three days earlier. He noted the prescription of anti-inflammatories and Panadeine Forte;
(iv) The plaintiff returned to work until 14 October 2010 with continuing symptoms. Although engaged in lifting in the factory, he did not relate his symptoms to that activity;
(v) On 14 October 2010, there was a deterioration in the plaintiff's condition which was described by him as “catastrophic” and recorded in the St Vincent’s Hospital notes on 15 October 2010 as “yesterday very severe”;
(vi) The plaintiff alleges whilst at work on 14 October 2010 in the course of lifting, he suffered a sudden worsening of symptoms such that he had to leave work and seek medical treatment;
(vii)
The plaintiff alleges he told two administrative assistants,
Allison Laurens-Tearle and Cassandra Toohey, of his work injury on that same day. Ms Laurens-Tearle, who gave evidence in this proceeding, has “no recollection” of such a report;
(viii) The plaintiff attended Dr K Wilson on 14 October 2010 accompanied by his wife. He was in considerable pain and distress. Dr Wilson has no note of the work incident but has written a history that the pain started a week ago and "worse last night". She said in cross-examination that had she been told of a work injury, she probably would have noted it;
(ix) The plaintiff was taken by ambulance to St Vincent's Private Hospital that same day, under referral from his brother, who was an infectious diseases physician at the hospital. He was placed under the care of neurosurgeon, Mr Paul Daniel Smith;
(x) Neither in the admission notes taken by Mr Smith nor in his clinical notes between 15 October 2010 and 18 October 2010 is there a record of a work-related injury;
(xi) The plaintiff returned to work after a number of weeks on what could perhaps be described as light duties. Ms Laurens-Tearle says neither to her, nor to a number of people in her presence, did the plaintiff relate his symptoms to a work injury during this period;
(xii) Due, it would appear, to the ongoing accounting dispute with the other directors, the plaintiff was dismissed in May 2011;
(xiii) On 29 July 2011, the plaintiff submitted a claim for weekly payments of compensation and medical and like expenses. In that form, he nominated Allison Laurens-Tearle and Cassandra Toohey as persons to whom he had reported the injury;
(xiv) In the employer's report of injury, the defendant has stated that Amanda Laurens-Tearle has no recollection of any such report and that Cassandra Toohey is his sister-in-law; otherwise it is silent as to whether Cassandra Toohey has a relevant recollection;
(xv) The claim was disputed and went to a conciliation conference, following which the defendant agreed to make payments pursuant to the Act which I am told to date amounted to some $300,000 and are presently ongoing;
(xvi) It is common ground that at no stage did the plaintiff enter a report of his injury in the company's Injuries’ Register.
10 It is against this background that the defendant submits that I should not be satisfied that the plaintiff's admitted injury occurred in compensable circumstances.
The evidence
11 The plaintiff gave sworn evidence and was cross-examined. Although suffering symptoms whilst at work between 5 October and 13 October 2010, he did not seek to implicate that employment in his oral testimony. However, he gave explicit evidence that there was a severe deterioration in his condition on 14 October 2010 when, in the course of lifting a window frame at work, he suffered an acute onset of severe back and leg pain which he described as “catastrophic”.
12 The plaintiff maintained he reported the work injury to Allison Laurens-Tearle and Cassandra Toohey on the same day.
13
Although testifying that she had no recollection of any such report on
14 October 2010, which I accept, Ms Laurens-Tearle has no recollection of the plaintiff being at work between the time of her referral to the chiropractor on 8 October 2010 and his return to work after hospitalisation. There is no dispute that the plaintiff attended work up until, and including, 14 October 2010.
14
The plaintiff himself has no recollection of the history given by him to
Dr Wilson on 14 October 2010 as he was in severe pain. Dr Wilson, although making the admission concerning her notes referred to earlier, stated in evidence-in-chief that she had an independent recollection that on
14 October 2010, the plaintiff's wife told her that the injury had occurred “whilst lifting at work”. The plaintiff agreed that at no relevant time, both before or after his dismissal in May 2011, had he made an entry in the Injury Register at work.
15 His explanation was as follows:
(a) There was a culture within the company that workers were discouraged from making WorkCover claims and the practice was for the company to pay medical expenses incurred by work injuries out of company accounts. No explicit explanation was sought concerning this practice, but I infer that WorkCover claims would affect premiums paid by the company. In any event, the plaintiff stated that his MRI scan taken on 15 October 2010 was paid out of the company accounts consistent with this practice;
(b) The plaintiff was in dispute with fellow directors at the time and he did not wish to ‘rock the boat’ by making a claim which was counter to company culture. Accordingly, when he overheard his wife tell the managing director on the telephone on about 15 October 2010 that the injury happened at work, he was “annoyed”. The treating neurosurgeon, Mr Smith, agreed he made no note either on admissions, or later in the ward, that the injury was work related. He agreed in cross-examination that had he been told of a catastrophic event on 14 October 2010, he probably would have made a note, but in circumstances where a condition developed over a period of time, maybe not. In any event, he wrote a report to the referring to doctor on 18 October 2010 to the following effect:
“As you know, Kevin has a history of obstructive sleep apnoea and is a bit on the heavy side and has quite active work involved in the window industry. He presented after a few weeks of niggly back, as he put it, with a 10 day history of severe right-sided classical S1 distribution sciatica.”
16 Therein there are three specific matters mentioned which appear to be of some clinical significance which are:
(a) Sleep apnoea;
(b) Heavy build;
(c) Quite active work involved in the window industry.
17 The third matter is not in Mr Smith’s handwritten notes but must have been part of the history related by the plaintiff. Further, Mr Smith said in cross-examination at Transcript 109 that he recollected that work relationship was communicated to him in the first few weeks to two months of treating him.
Submissions
18 The defendant submits that the lack of a contemporaneous record of a work relationship to the injury, prior to the WorkCover claim in July 2011, is fatal to the plaintiff's claim. In particular, counsel submits it is extraordinary that a general manager would not place a record of a serious injury occurring at work in the Injury Register. Further, the absence of affidavits from the plaintiff's wife or Cassandra Toohey invited the inference that their evidence would not have assisted the plaintiff's claim and I could more readily accept competing evidence from defence witnesses.
19 The defendant’s counsel concedes, however, in final submission, that the plaintiff cannot be mistaken regarding the event of 14 October 2010 and its alleged work relationship, and, accordingly, the plaintiff would have to be knowingly making a false claim. In such circumstances, he concedes fairly that the evidentiary onus shifts to him in making such an allegation of fraud and, in any event, the principles of Briginshaw v Briginshaw[1] would apply.
[1][1938] HCA 34
20 The plaintiff submits that the lack of a contemporaneous record is not fatal to the plaintiff's case, as his putative reluctance to complain to third parties is consistent with the company culture, as explained by him, and consistent with him not wishing to exacerbate his dispute with the managing director and the other directors.
21 Further, counsel submits that the lack of a contemporaneous note of a work relationship diminishes in its effect, because there is no alternative taken by any medical practitioner which would explain the injury.
22 In terms of a failure to serve affidavits from the plaintiff's wife and/or Cassandra Toohey, it is submitted that the inference able to be drawn is of little effect, because Allison Laurens-Tearle has no recollection of any statement made by the plaintiff between 8 October 2010 and his return to work after hospitalisation.
23 In any event, it was not until the second day of hearing that the second statement of Amanda Laurens-Tearle was sought to be placed in evidence which prompted the request for her to attend for cross-examination on the third day.
24 In addition, Senior Counsel for the plaintiff submits it was never put to the plaintiff he dishonestly made his claim. Further, is it submitted that the clinical entries made on 11 October and 13 October 2010 by the chiropractor to the effect of being “a lot better” and “better”, respectively, lead credence to the allegations of an acute episode occurring on 14 October 2010.
25 It is also submitted that the fact that the plaintiff required the payment for his MRI scan out of the company accounts is consistent with his evidence concerning a company culture with respect to WorkCover claims.
26 Further, counsel submits that the principles laid down in Ansett Australia Ltd v Taylor[2] apply in this case because the decision regarding acceptance of the claim was a “considered decision”. Further, having identified Cassandra Toohey as the plaintiff’s sister-in-law, there was no suggestion she had no recall of the report of injury.
[2][2006] VSCA 171
Findings
27 The plaintiff was extensively cross-examined by experienced counsel. My impression of him was that at all material times he was attempting to honestly recall past events.
28 Further, I am satisfied that his explanation for not entering his injury in the Injury Register, whilst hardly laudatory in itself, was nonetheless credible in the circumstances of this case, as already outlined.
29 I am also satisfied that the plaintiff related the circumstances of his injury to his wife who, in turn, communicated the work relationship to the managing director in a telephone call witnessed by the plaintiff on or about 15 October 2010. I further accept he was annoyed with his wife for communicating this information.
30 In particular, the plaintiff could have implicated lifting episodes at work prior to 14 October 2010 if he was inclined to be dishonest in making his claim.
31 In all the circumstances of this case, I am satisfied that the plaintiff has honestly attested to an event at work on 14 October 2010 which has significantly contributed to the serious injury admitted by the defendant. Leave will be granted to the plaintiff to issue proceedings at common law for damages for pain and suffering and economic loss arising out of injury to his lumbar spine suffered in the course of his employment in October 2010 and I will hear the parties as to any consequential orders.
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