Gordon v Hansson
[1988] TASSC 102
•18 October 1988
Serial No B34/1988
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Gordon v Hansson [1988] TASSC 102; B34/1988
PARTIES: GORDON, Robert Charles
v
HANSSON, Leonard J
FILE NO/S: WC502/1986
DELIVERED ON: 18 October 1988
JUDGMENT OF: Green CJ
Judgment Number: B34/1988
Number of paragraphs: 11
Serial No B34/1988
List "B"
File No WC502/1986
ROBERT CHARLES GORDON v LEONARD J HANSSON
REASONS FOR JUDGMENT GREEN CJ
18 October 1988
The plaintiff claims workers' compensation from the defendant. The quantum of the plaintiff's claim has been agreed subject to liability in the sum of $2,828.00 made up of medical and travelling expenses together with $2,736.00 being weekly payments at the rate of $342.00 per week from 5 September 1986 to 31 October 1986.
I find that on Wednesday 20 August 1936, the plaintiff was a worker within the meaning of the Workers' Compensation Act 1927 employed by the defendant as a driver. I find that on that day, the plaintiff was driving a truck in the course of his employment with the defendant. As a result of a malfunction, the plaintiff drove the truck into Crotty and removed a diesel tank and drained and flushed it out. The plaintiff gave evidence that the tank was very heavy and as he lifted it back onto its runners, he felt a sharp stab of pain in his lower back. He said that the pain persisted as he drove the truck during the remainder of that day. The next day he was stiff and in pain but did a normal day's work. He was not rostered to work on the Friday or Saturday. On Sunday 24 August, the plaintiff saw Dr Dubetz who formed the opinion that the plaintiff was suffering from sprained lumbar ligaments and lower longitudinalis muscle inflammation and spasm. Dr Dubetz was of the opinion that the plaintiff's condition was consistent with his having suffered an injury on 20 August in the circumstances described by the plaintiff. Dr Dubetz's opinion was based upon the plaintiff's complaints and history and upon objective indications which he observed on his examination of the plaintiff. Dr Dubetz also gave evidence which would support a finding that the plaintiff was unfit to return to work until 31 October.
The defendant admitted that he had made payments to the plaintiff of amounts equal to his normal wages during the weeks ending 25 August, 1 September and 8 September. In the defendant's wages book the word "compensation" appears against the plaintiff's name under the heading "hours worked daily" for the period 21 August to 5 September. The defendant said that the payment for the first week represented wages and that the payment for the second week was made because of a union threat. However, the defendant did not claim that the payment he made for the third week was for wages or was made under duress and was not able to say why he made that payment although he denied that it was paid because he accepted liability to pay workers' compensation. However, it may well be that the defendant was confused in his cross–examination about this matter because on the evidence of both the plaintiff and the defendant, there is room for the possibility that payments for two of these weeks were for wages and that it was the payment for the third week which was made as the result of the union threat. As well, the significance of the fact that the word "compensation" appears in the wages book is greatly reduced by the fact that it was not written by the defendant and by the fact that it is plainly wrong in respect of at least one week because it is clear that at least one of those payments was not for compensation but for wages. In this state of the evidence, I cannot say that I am affirmatively satisfied that any of the payments made by the defendant to the plaintiff could be unambiguously characterised as a payment of workers' compensation or involved an admission of liability to pay workers' compensation.
Counsel for the defendant submitted that the level of physical activity in which the plaintiff engaged on Friday 22 August, which included driving his motor vehicle, cutting firewood with a chain saw and loading it onto a truck and effecting roadside repairs to his utility when a ball joint fell out, was inconsistent with his having sustained the injury to his back which he claimed to have suffered the previous Wednesday. I reject that submission. I am not satisfied that the submission is supported by the evidence given by Dr Dubetz or Mr Law. I find that the plaintiff had to stop using the chain saw after about three minutes because of pain in his back, that the great bulk of the work involved in the loading of the wood was done by the plaintiff's companion, that the plaintiff had to adapt the method he used to repair his utility because of the condition of his back and that at the end of the day, he experienced pain and discomfort. I find that the evidence about the plaintiff's activities on the Friday and the effect they had on him, is not inconsistent with his claim that he suffered an injury to his back on the Wednesday and, to some extent, supports it.
The plaintiff answered an interrogatory administered to him as follows:
"INTERROGATORY No. 7
On the 22nd August, 1986, the 23rd
August, 1986, the 24th August, 1986
and the 25th August, 1986 did you suffer
any symptoms arising out of the said
injury and if so state: Yes.
(a)State fully as you are able
the symptoms you suffered
as at the said date.
Pain in my lower back.
(b)State as fully as you are able
what, if any restrictions such
symptoms as you suffered as at
the 22nd August, 1986, the 23rd
August, 1986, 24th August, 1986
and the 25th August, 1986
imposed on your ability to
engage in:
(i)Your recreational interests. Yes, I could do nothing, I was flat on my back in bed.
(ii) Your domestic interests. As for (i) above.
(iii) Your social activities. As for (i) above.
(iv) Any physical activities including physical work of any kind.
As for (i) above."
Insofar as it asserts that on Friday 22 August, the plaintiff "could do nothing" and "was flat on (his) back in bed" that answer is plainly incorrect. However, the nature and strength of any adverse inference I might otherwise have drawn against the plaintiff from that answer, are affected by my impression of him in the witness box and by the fact that his answer to Interrogatory 7 is also incorrect insofar as it relates to 24 August because on that day he consulted Dr Dubetz at his surgery – a fact which he knew he could not conceal and which he would not have had any interest in concealing. I am satisfied that the plaintiff answered this and other interrogatories carelessly but although those answers are capable of reflecting adversely on the plaintiff's reliability as a witness, I am not satisfied that they reflect adversely on his honesty as a witness.
In assessing the defendant's attack on the plaintiff's credit, I bear in mind that there was almost nothing in the cross–examination of the plaintiff or in the evidence which had the effect of contradicting the evidence given by the plaintiff and Dr Dubetz as to what happened on Wednesday 20 August and what symptoms the plaintiff experienced immediately thereafter.
Counsel for the defendant pointed to some inconsistencies between the plaintiff's evidence and the evidence given by other witnesses but they are not such as to persuade me that I should reject the plaintiff's account of what occurred on the Wednesday and the pain he suffered thereafter.
Nothing which has been put to me and nothing in the evidence or in the cross–examination of the plaintiff or Dr Dubetz persuades me that I should reject the plaintiff's account of the pain he suffered on Wednesday 20 August and the circumstances under which he experienced it or that I should not accept Dr Dubetz's opinion that when he examined the plaintiff on the Sunday, he was suffering from pain and an injury to his lower back which was consistent with the plaintiff having injured his back whilst lifting the tank on the previous Wednesday. There is no evidence to suggest that the plaintiff was suffering from such an injury before he lifted the tank and the evidence is not such as to persuade me that some activity or event which occurred between Wednesday 20 August and Sunday 24 August caused the injury which Dr Dubetz diagnosed.
I am satisfied on the balance of probabilities that on 20 August 1986, the plaintiff suffered personal injury by accident arising out of, and in the course of, his employment with the defendant and that he is entitled to be paid compensation.
There will be judgment for the plaintiff for $2,828.00.
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