Harris v Barloworld Coatings (Aust) Pty Ltd

[2011] VCC 818

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-09-00773

JOHN ANDREW HARRIS	Plaintiff
v
BARLOWORLD COATINGS (AUST) PTY LTD	Defendant

---

JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2011
DATE OF JUDGMENT:	23 June 2011
CASE MAY BE CITED AS:	Harris v Barloworld Coatings (Aust) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VCC 818

REASONS FOR JUDGMENT

---

Catchwords: Accident Compensation Act 1986 – s.104B(5A) and (5AA) – injury to right hip with consequential injuries (to kidneys, coronary artery disease and dyslipidemia) as a result of medication consumption – claims for s.99 expenses and weekly payments – claim numbers allocated – claim pursuant to s.98C in respect of right hip and kidneys – claim for right hip accepted, assessment made and resultant offer accepted by plaintiff but claim for kidneys rejected – specific date of injury allocated by defendant’s insurer to s.98C claim – plaintiff continued in employment with defendant after allocated date of injury – alleged subsequent aggravation and further specific incident of injury – further s.98C claim made in respect of kidneys, coronary artery disease and dyslipidemia – whether plaintiff precluded from bringing subsequent s.98C claim by reason of earlier claim – both claims lodged after termination of employment – opinion of Medical Panel as to liability expressed in weekly payments claim – effect of same - factors to be considered generally.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Gorton QC with	Constable Connor & Co Pty
Mr G Wicks	Ltd
For the Defendant	Mr M Fleming SC with	Wisewoulds Mahony
Mr B McKenzie
HIS HONOUR:

General background

1 This matter comes before me by way of a Writ and attached Statement of Claim in which is sought a declaration that the plaintiff is entitled to an assessment of compensation pursuant to s.98C of the Accident Compensation Act 1985 (“the Act”). The declaration sought is in relation to entitlement to compensation for renal failure, coronary artery disease and dyslipidemia consequent upon the consumption of medication prescribed for an injury to the right hip. The period of employment upon which reliance is placed and during which the relevant injury to the right hip is said to have occurred is between 28 April 2000 and February 2004. In particular, an incident of injury in April 2003 received attention. As shall be discussed, the position of the defendant is that, in essence, the plaintiff has already claimed and has been paid compensation for injury to the right hip and can make no further claim for injury either to the hip or to the consequences of such injury, with particular reference being made to ss.104B(5A) and (5AA) of the Act.

2          Mr R. Gorton QC with Mr G. Wicks of counsel appeared on behalf of the plaintiff. Mr M. Fleming SC with Mr B. McKenzie of counsel appeared on behalf of the defendant. Concise oral evidence – both by way of evidence-in- chief and cross-examination – was adduced from the plaintiff. The Court Book of each party, collectively containing all relevant documentation, was put in evidence. Counsel made detailed and helpful submissions in relation to the quite complicated issues that have arisen. I indicated to counsel that I was about to go on leave, and there would be some delay in the handing down of judgment, particularly given the complicated nature of the proceeding. That created no difficulties.

Factual background

3          The following findings of fact are based upon the oral and documentary evidence which, to a very considerable extent, was unchallenged. Indeed, Mr Fleming pointed out in his submissions that the facts were not really contested. The factual background is as follows:

(i)	The plaintiff, who is aged 63 years, worked for the defendant as a storeman, originally commencing in approximately 1984, such employment being interrupted by work with a different employer between 1989 and 1991.
(ii)	The defendant is, in essence, a paint manufacturer, and the plaintiff’s work involved frequent twisting and turning and the lifting of heavy drums of paint.
(iii)	In approximately mid-1997 the plaintiff became aware of pain in the region of the right hip. He consulted a doctor (Dr Smith), who in turn referred him to a chiropractor (Mr Corbett). The injury basically resolved and the plaintiff continued performing his previous duties.
(iv)	In April 2000 the plaintiff attended work on a particularly cold morning and again injured his hip. The symptoms returned. An incident report form, dated 27 April 2000, was completed and it records that the hip injury was due to the long-term lifting and that the plaintiff was to be moved to the “White Knight” area (“White Knight” apparently being another brand of paint) where less heavy lifting would be required. The date of 27 April 2000, being the date of the incident report form, is one that assumes particular significance in the case. In addition to being transferred, it would seem that the plaintiff was then intending to have ongoing periodic physiotherapy in order to relieve symptoms. Thereafter, the plaintiff worked in the “White Knight” area.
(v)	The plaintiff received very little treatment and continued to perform physical work, including bending and the lifting of stock. He had some twinges in the hip and at times a little trouble walking. He took Panadol when required, and this could be as much as two to four tablets per day.
(vi)	In April 2003, again on a cold morning, the plaintiff had a particular occurrence of pain associated with a lifting event at work. He saw the chiropractor again and resumed chiropractic treatment. He also saw a doctor. I accept that there was a marked and significant resumption of or increase in treatment. The plaintiff gave oral evidence, which I accept, that from the time of the incident at work on April 2003, his condition worsened. There was a sudden worsening on the day, there was no improvement thereafter and it stayed “bad” all the time. In cross-examination he stated that between 2000 and 2003 he did have a throbbing pain nearly every day and took Panadol, but also stated that “the pain got worse as from April 2003 when I done it the second time really bad and that was it, from then on it continued to get worse”. He agreed that there had been a particular occurrence of pain associated with a particular lifting event in April 2003. Following that event he was prescribed and commenced to take Feldene capsules.
(vii)	Apparently the taking of the Feldene capsules caused the plaintiff to break out in a rash, and on 27 November 2003 Dr Carson changed the plaintiff’s prescription to Voltaren tablets. By February 2004 the plaintiff was seeing Dr Carson in relation to stomach problems and, following further investigations, on 1 March 2004 Dr Carson diagnosed renal failure and the taking of Voltaren and certain other medications ceased.
(viii)	In the meantime, on 2 July 2003 the plaintiff completed a Worker’s Claim Form, the employer’s section being completed on 8 July. It is apparent that this claim was treated as being one for the payment of medical and like expenses as the plaintiff was not suggesting that he had missed any time from work or was entitled to the payment of weekly benefits. The injury described in the claim form is “hip (right) strain”; the date of injury is set out as “mid-1997”; in relation to the date of cessation of work, the entry is “continued working”; and the injury is said to have occurred in the course of work at the usual work place. Other entries of note on the form are that the injury was caused by the lifting of heavy drums under racking and there was a further entry that “I have now developed arthritis”. Apparently annexed to the claim form was a letter from Mr Corbett, the chiropractor, indicating that he had been treating the plaintiff since 13 May 2003 for right sided low back pain referring to the right buttock and right knee and that the injury appeared to be a re-aggravation of a previous injury initially incurred in 1997 with a further aggravation in June 2000. Mr Corbett stated that he had treated the plaintiff in 1997 and had again treated him on 10 occasions between 13 May 2003 and 16 August 2003. The Employer Claim Report, which is dated both 7 July 2003 and 8 July 2003, refers to the date of injury as being “mid-1997”. It is set out that no time has been lost from work and that the understanding of how the injury occurred is “lifting paint – manual work”. It is suggested that a full investigation would be required.
(ix)	The defendant (via its insurer) organised for a medical examination of the plaintiff by Dr Andrew Miller. It is apparent from the report of Dr Miller, which is dated 27 August 2003, that the defendant’s insurer had allocated to the claim a number. Dr Miller’s report commences “WORKCOVER CLAIM NUMBER 12030006320”. The heading of Dr Miller’s report also includes the statement that the date of injury is 27 April 2000. The report contains an appropriate history, although it incorrectly states that the plaintiff was assigned lighter duties in the “White Knight” area in June 2003 when in fact the plaintiff was so transferred in 2000. Dr Miller believed that the underlying pathology was most likely the aggravation and acceleration of degenerative changes in the right hip joint and implicated employment as a significant contributing factor.
(x)	On 10 September 2003 the insurer wrote to the plaintiff accepting liability for the reasonable costs of medical and like services (it is to be recalled that the plaintiff had lost no time from work so that his claim was effectively limited to such services). That letter of acceptance describes the date of injury as being 27 April 2000 and, whilst there is some handwritten correction in relation to the claim number, it appears to be essentially the same as that referred to earlier in relation to Dr Miller’s report. (No issue was taken that the claim number was different.)
(xi)	As stated, the plaintiff became unwell and was ultimately diagnosed with renal failure. It would appear that his last working day was 4 February 2004, although his formal resignation may not have occurred until January 2005.
(xii)	In 2006 hip replacement surgery was organised and this was to be performed by Mr Falkenberg. However, the arrangements had to be cancelled because of the plaintiff developing cardiac symptoms. He was diagnosed with symptomatic ischemic heart disease requiring coronary artery treatment.
(xiii)	The plaintiff completed a further Worker’s Claim Form on 29 August 2006. The injury described is “right hip injury & loss of kidney function”, with the parts of the body affected being described as the right hip and both kidneys. The date of injury in relation to the right hip is shown as “mid-1997” whilst that to the kidneys is shown as “Feb. 2004”. The injury is described as occurring gradually over a period of time in the course of work, and reference is made to the lifting of heavy drums from under racking. The date of cessation of work is shown as 4 February 2004, and details of pre-injury average weekly earnings are included, as is a list of treating doctors. It is apparent that this claim was treated as being one for weekly payments of compensation.
(xiv)	On 9 October 2006 the insurer wrote to the plaintiff, in essence rejecting his claim. This time the claim number is shown as “12 06 0021744”. The attached Reasons for Decision describe the date of injury as being 1 February 2004. Whilst ultimately it will be the date of injury ascribed to the original claim pursuant to s.98C that is of particular significance, I am setting out the claim numbers and dates of injury ascribed to the claim for medical expenses and the claim for weekly payments as part of the somewhat confusing background against which the s.98C claims were made. This claim of 29 August 2006 was rejected on a number of grounds, including the allegation that the claimed injury did not arise out of or in the course of employment and employment was not a significant contributing factor. The plaintiff had been examined by Dr Vikraman at the request of the insurer, and he expressed the opinion that the plaintiff’s renal condition was not work-related. This is set out in the “Reasons for Decision” attached to the letter of rejection and bearing the same claim number. The Reasons for Decision also contain the following:

“You still have an entitlement to compensation for the hip condition on claim 12-03-0006320, and as such we request that you note this claim number on all future correspondence relating to the hip condition … We reiterate that there is still an entitlement to medial (sic) and life expenses on claim 12- 03-0006320, for the accepted right hip injury.”

(xv)      The rejection of claim number 12 06 0021744 led to the issuing of proceedings by the plaintiff. On 3 October 2007 proceeding number CI-07-03892 was issued out of this Court. Paragraph 2 of the Statement of Claim describes the plaintiff as having been employed by the defendant as a storeman from in or about the year 1991 to on or about 20 January 2005. Paragraph 3 of the Statement of Claim commences as follows:

“(a) The plaintiff’s work for the defendant involved heavy
lifting, and twisting and turning while lifting.

(b) In or about mid-1997, the plaintiff developed symptoms of pain in his right hip while lifting heavy drums.

(c) To treat the said symptoms in his right hip, the plaintiff was prescribed, and used, the drug Voltaren from in or about November 2003 to in or about March 2004.”.

Particulars of injury, including those to the kidneys, then follow. It is also alleged that in 2003 the plaintiff had submitted a claim for compensation for medical and like expenses which had been accepted and that in August 2006 he had submitted a claim for weekly payments, liability for which had been denied. A declaration of liability in respect of weekly payments “and/or Section 98C entitlements” was sought, as were consequential orders.

(xvi) On or about 13 March 2007 the plaintiff submitted a claim for compensation pursuant to s.98C of the Act. As at the time of the issuing of the Statement of Claim referred to above there had been no response to that claim pursuant to s.98C, but a response was then received and this led to the issuing of an amended Statement of Claim in which references to s.98C were deleted. The declaration of liability that was then sought was solely in respect of weekly payments.

(xvii)   The claim form in question sought impairment benefits in respect of both the right hip and the kidneys and referred to both the claim numbers previously set out. The insurer’s response, dated 24 October 2007, referred to the date of injury as being 27 April 2000. The claim number is said to be “12 03 0006320” – that is, the claim number earlier allocated to the injury of 27 April 2000. The insurer accepted liability in respect of the right hip injury and rejected liability in respect of the injury to the kidneys.

(xviii) Further, the introduction to the insurer’s letter of 24 October 2007 reads
as follows:

“On 16 March 2007 your claim for compensation pursuant to section 98C of the Accident Compensation Act 1985 (“the Act”) was received in relation to injuries to the right hip and both kidneys which you claimed to have sustained as a result of your employment on 27 April 2000.”

At the insurer’s request the plaintiff had been examined by Mr Steven Leitl, orthopaedic surgeon, and as a result a 15 per cent Combined Whole Person Physical Impairment was obtained. Accordingly, the letter advised the plaintiff of this and that such an assessment converted into an entitlement of $15,140. The plaintiff was required to either accept or reject this decision.

(xix)     On 26 October 2007 (the date is shown in handwriting as 26 October 2004 which makes no sense, and it was mutually agreed that the correct date must have been 26 October 2007) the plaintiff completed a Worker’s Response Form, a pro forma obviously prepared by the insurer of the defendant and basically requiring only the plaintiff’s signature. Again, the claim number was shown as “12 03 0006320”. The plaintiff signed to the effect that he accepted the liability determination, accepted the physical assessment and accepted the calculation of the entitlement.

(xx) Returning to the proceedings before this Court in relation to weekly payments, questions were sent to a Medical Panel pursuant to s.45(1)(b) of the Act. On 17 September 2008 a Medical Panel provided answers to the questions. Relevant questions and answers were as follows:

“Question 1: What is the nature of the plaintiff’s medical condition relevant to any injury and/or alleged injury as pleaded in the particulars sub-joined to paragraph 3 of the plaintiff’s Amended Statement of Claim (the said injuries)?

Answer: The Panel is of the opinion that the plaintiff is suffering from:

• surgically treated osteoarthritis of the right hip;

• acceleration and aggravation of end stage renal failure;

• surgically treated coronary artery disease; and

• dyslipidemia;

relevant to the said injuries.

Question 2: What is the extent to which the worker’s kidney condition resulted from or was materially contributed to by the injury to his hip (if at all)?

Answer: The Panel is of the opinion that the Plaintiff’s kidney condition (end stage renal failure) is materially contributed to by the right hip injury.”

(The answer to Question 3 indicated the worker had an incapacity for work or suitable employment; the answer to Question 4 expressed the opinion that he had no current work capacity; and the answer to Question 5 was to the effect that this was likely to continue indefinitely.)

“Question 6: If yes to 3 above, does the plaintiff’s incapacity for work result from or has it been materially contributed to by any, and if so which, of the said injuries?

Answer: In the Panel’s opinion the plaintiff’s incapacity for work is materially contributed to by his right hip condition and its sequelae of an acceleration and aggravation of end stage renal failure, dyslipidemia and coronary artery disease.”

(xxi)     Following the Medical Panel setting out its answers, the County Court proceedings were resolved by consent. The Consent Orders were to the effect that the opinion of the Medical Panel be adopted and applied; that the defendant pay to the plaintiff weekly payments of compensation from 6 February 2006 and to continue in accordance with law; that interest be paid together with costs; and that the proceeding be otherwise dismissed.

(xxii) On 1 December 2008 the plaintiff completed a further claim for impairment benefits pursuant to s.98C. Again, the claim form contains a reference to the preceding claim numbers. The body parts affected are described as “kidneys, heart, dyslipidemia”. The answer to the question as to how the injury occurred is “treatment for hip injury”. In answer to the question in relation to whether compensation or a lump sum had previously been received in relation to other injuries or conditions, there is a reference to “hip replacement”. It would appear that the plaintiff underwent a right total hip replacement on 8 May 2007. Attached to the claim form were details of injury and a list of dates upon which injury was sustained or the plaintiff first became aware of the relevant condition. The list contained the allegation that the acceleration and aggravation of end stage renal failure was diagnosed in February 2004; that the coronary artery disease was surgically treated on or about 28 November 2006; and that the dyslipidemia was diagnosed in 2008.

(xxiii) On 24 December 2008 the insurer wrote to the plaintiff. On this occasion the date of injury is described as 27 April 2000 and the claim number is shown as “1206 0021744”. Interestingly, this appears to be a combination of the claim number previously allocated to a date of injury of 1 February 2004 (the weekly payments claim) and a date of injury previously associated with claim number 12 03 0006320 (the medical expenses claim). In any event, the plaintiff’s claim was rejected on the basis that he had not sustained an injury within the meaning of the Act or that it did not arise out of or in the course of his employment or that his employment was not a significant contributing factor to the claimed injuries. Following the expression of reasons for the rejection, the next paragraph in the letter reads:

“Therefore, we deny liability for your claim for the impairment injuries you claimed or sustained in the course of your employment on 27/04/2000 in accordance with S104B(2) of the Act, and your claim for compensation under s.98C has been rejected.”

Thus, whatever confusion may have existed in relation to claim numbers and dates, the substance of the letter makes it quite clear that what are being dealt with are injuries sustained on 27 April 2000. Further, in an earlier paragraph in which the claim is summarised, there is reference to the date of 27 April 2000 as being that on which the plaintiff claims to have sustained the various injuries. What is being dealt with, and rejected, is unambiguous. The rejection is of injuries sustained, or claimed to have been sustained, on 27 April 2000.

(xxiv)  Following the receipt of a letter from the plaintiff’s solicitors in relation to the rejection, which letter requested reconsideration of the denial of liability and enclosed copies of the opinion of the Medical Panel and the consent orders referred to above, and which letter referred to the date of injury as being 27 April 2000, the insurer wrote to the plaintiff’s solicitors on 8 January 2009. Again, the date of injury and claim number were the apparent mix set out in the letter of 24 December 2008, with the date of injury again being clearly specified as 27 April 2000. The letter, which enclosed a new rejection notice, also stated as follows:

“I note that Mr Harris has already received a S98C settlement in respect of the right hip injury on 20/11/2007. I believe this current claim relates solely to the initial incident and effects of the right hip injury occurring on 27/04/2000 which precludes you from claiming twice for the same event or circumstance.”

The letter goes on to state that the Medical Panel has confirmed its opinion that the right hip condition has materially contributed to the sequelae of an acceleration and aggravation of end stage renal failure, dyslipidemia and coronary artery disease.

(xxv)   The new notice of rejection, again referring to claim number 12 06 0021744 but describing the date of injury as being 27/04/2000, refers to the various injuries listed in the claim form. Again the claim is rejected, and the following reasons set out:

“QBE Workers Compensation (VIC) Limited is not satisfied that you have suffered the aforementioned injuries in circumstances which entitle you to compensation and relies on Sections 104B(5A) and 104B(5AA) in our reasons for rejection of the impairment claim which state:

‘A worker must include all injuries arising out of the same event or circumstance in a claim for compensation under section 98.’

‘A worker can only make one claim for compensation under Section 98C in respect of injuries arising out of the same event or circumstance.’

You have previously lodged a claim pursuant s.98C (sic) of the Act for injuries sustained as a result of an incident on 27/04/2000 which was finalised on 20/11/2007 when you accepted the assessment of impairment. QBE Workers Compensation (Vic) Limited believe this current claim relates solely to the initial incident and effects of the right hip injury occurring on 27/04/2000. The Medical Panel opinion dated 17/09/2008 supports that your right hip injury materially contributed to an acceleration and aggravation of end stage renal failure, dyslipidemia and coronary artery disease; but as these injuries arise out of the same event or circumstance and you can only make one claim for compensation under Section 98C in respect of injuries arising out of the same event or circumstance; you are precluded from claiming twice for the same event or circumstance.

Therefore, we deny liability for your claim for the impairment injuries you claim to have sustained in the course of your employment on 27/04/2000 in accordance with S104B(2) of the Act and your claim for compensation under Section 98C has been rejected.”

The initial paragraph of the Notice of Rejection also refers to the claim that the relevant injuries were sustained in the course of employment on 27 April 2000. It is of interest that, as set out above, the insurer was apparently of the belief that the current claim related “solely” to the initial incident and effects of the right hip injury occurring on 27 April 2000.

(xxvi)  The result of this rejection was that the plaintiff issued Writ number CI- 09-00773 out of this Court. As conceded by Mr Gorton, the pleading of the attached Statement of Claim lacks a certain amount of precision, but Mr Gorton made it clear that the declaration of liability being sought was to the effect set out above in relation to aggravation or acceleration of the right hip condition after 27 April 2000 and the effects of treatment provoked by that aggravation or acceleration after 27 April 2000. This in no way appeared to take Mr Fleming by surprise and, whilst there was no formal amendment to the Statement of Claim, the matter proceeded on the basis that the declaration of liability was sought on the basis set out above. I might say that if the history of events, as set out in the Statement of Claim (and as set out at considerably greater length above) was followed to its logical conclusion, the relief sought as explained by Mr Gorton is really all that could be sought. Be that as it may, the Statement of Claim is hardly a masterpiece of drafting.

(xxvii) Further pleadings followed the Statement of Claim and these underline the fact that what is in issue in the case is well and truly understood by both parties. A Defence dated 26 March 2009 was filed and served. It admitted that the plaintiff was employed by the defendant; that he had lodged a claim for compensation in respect of an alleged injury to the right hip; and that the claim was accepted and compensation paid. It further admitted that the plaintiff’s work involved heavy lifting, twisting and turning; that in or about mid-1997 the plaintiff developed symptoms of pain in his right hip whilst lifting heavy drums; that he used Voltaren from in or about November 2003 to in or about March 2004 as prescribed for treatment of the symptoms in the right hip; and admitted the particulars of injury relating to renal failure, coronary artery disease and dyslipidemia. It should be made clear that the Statement of Claim does not seek a declaration in respect of any further injury to the hip as such, and indeed the claim form is similarly silent. In each instance, the injuries concerning which the declaration is sought are injuries to the kidneys, coronary artery disease and dyslipidemia. In other words, what is alleged is that the employment-related injury to and aggravation and acceleration of the hip condition after 27 April 2000, and the treatment provoked by that work-related aggravation or acceleration after 27 April 2000, materially contributed to the sequelae – namely, the three injuries referred to above. At least at this stage relief is not claimed in relation to any additional impairment of the hip.

(xxviii) Returning to the Defence of 26 March 2009, the occurrence of the various steps in the history of the claim and as set out above is admitted. It is then stated in paragraph 15 that the defendant is refusing to pay the plaintiff compensation in accordance with the law and further:

“(a)	The plaintiff is not entitled to claim compensation pursuant to s98C/E in respect of the alleged injuries of acceleration and aggravation of end stage of renal failure, coronary artery disease and dyslipidemia caused by an event or circumstance occurring on 27 April 2000 as he has already made a claim in respect of injuries arising out of the said event or circumstance (s104B(5AA));
(b)	He is not entitled to the relief sought.”

Mr Gorton made it clear that it would not be contended that what was set out in sub-paragraph (a) of paragraph 15 of the defence (as above) was wrong. I understand that to mean that the plaintiff conceded that no further claim can be made in relation to an event or circumstance occurring on 27 April 2000 or the consequences thereof. This seems to be an entirely correct concession. It is to be remembered that the claim before the Court has been put on the basis of events or circumstances occurring after 27 April 2000.

(xxix)  The plaintiff filed and served a Reply dated 25 November 2010. If there was any doubt as to what was in issue, this Reply, drawn by Mr Gorton and Mr Waugh of counsel, made the plaintiff’s contentions and the area of dispute quite clear. Omitting formal parts, that Reply reads as follows:

“1. The plaintiff admits that he has received compensation pursuant to s.98C in respect of an event or circumstance occurring on 27 April 2000 but the plaintiff has not yet received any compensation pursuant to s.98C in respect of further injury after 27 April 2000, in particular, in respect of injury by way of aggravation, acceleration, exacerbation, deterioration, and/or recurrence between 27 April 2000 and February/March 2004, in particular, in or about 2003 (“the further injury”) which further injury caused or brought about the prescribing and administration of Voltaren in or about August 2003 to in or about February/March 2004.

2. The plaintiff further contends that the defendant is estopped from denying liability for injuries by way of acceleration and aggravation of end stage renal failure, surgically treated coronary artery disease and dyslipidemia by reason of the determination of the Medical Panel dated 17 September 2008 and the operation of s.68(4) of the Act and/or by reason of orders made by the County Court in proceedings No.CI-07-03892 on 18 December 2008 or 21 January 2009.”

I should add that it is clear that the reference to “between 27 April 2000” in paragraph 1 above is not intended to include injury sustained on 27 April 2000. The entire manner in which the case has been presented is consistent with the earlier reference to “after 27 April 2000”.

(xxx)    There have subsequently been amendments to the Defence. A Further Amended Defence was filed and served, without objection, at the commencement of the case on 11 April last. Paragraph 15 of the Further Amended Defence reads as follows:

“(a)	The plaintiff is not entitled to claim compensation pursuant to s98C/E in respect of the alleged injuries of acceleration and aggravation of end stage of renal failure, coronary artery disease and dyslipidemia caused by an event or circumstance, namely right hip injury and the treatment for same as set out in paragraph 3(c) of the Statement of Claim as he has already made a claim in respect of injuries arising out of the said event or circumstance (s104B(5AA)).
(aa) Further and or in the alternative pursuant to s.104B(5A) and s.104B(5AA) the plaintiff cannot claim lump sum compensation pursuant to s.98C in regard to the renal failure, coronary artery disease and dyslipidemia because the said injuries arise out of the same event or circumstances as the right hip injury for which the plaintiff claimed lump sum compensation pursuant to s.98C on 13 March 2007 for which liability was accepted and compensation paid on or about 20 November 2007;
(ab) Further and or in the alternative the plaintiff cannot seek lump sum compensation pursuant to s.98C in regard to renal failure/injuries to both kidneys because pursuant to section 104B(6) the plaintiff accepted the rejection of liability of the renal failure/injuries to both kidneys.

Particulars

i.          By claim form dated 13 March 2007 the plaintiff sought compensation pursuant to section 98C/E in respect of inter alia alleged injuries to both kidneys;

ii.         By notice dated 24 October 2007 the WorkCover Agent of the defendant advised the plaintiff that inter alia liability had been denied in respect of the injury to both kidneys and enclosed a document entitled ‘Worker’s Response Form’;

iii.        On or about 26 October 2007 the plaintiff signed and dated the said ‘Worker’s Response Form’ that he understood certifying he understood the Notification of Entitlement and Determination to Impairment Benefits pursuant to the notice dated 24 October 2007 and that he accepted the liability determination;

iv. On or about 20 November 2007 the plaintiff accepted compensation pursuant to section 98C in respect of the right hip injury.

(a) (sic)He is not entitled to the relief sought.”

4          In cross-examination the plaintiff acknowledged his signature on various documents, although believing that at least part of documents such as the claim form of 13 March 2007 had been completed by a person from the defendant. He could not recall his frame of mind when signing the claim form or seeing the letter of rejection in relation to the injury to the kidneys. He acknowledged his signatures on the Worker’s Response Form although he had no recollection of signing it. He stated that he understood that the sum of about $15,000 which he received in November 2007 was just for the hip and he understood that at that time compensation was not being paid in respect of the kidneys.

5 Insofar as this cross-examination was directed towards the plaintiff’s understanding of why he was being paid the amount in question and what was involved in the acceptance of it, I would make the following observations. Firstly, if the purpose of the cross-examination was to establish that in some way the plaintiff had contracted out of the Act and his entitlements thereunder, I have some doubts about the efficacy of such a contract, assuming that one did exist. Secondly, on the basis of the plaintiff’s evidence, I am far from persuaded that he understood that he was accepting the sum of $15,140 in settlement of any claim for all hip injuries and their sequelae, whenever occurring. I would refer to the following passage of cross-examination at page 30 of the transcript:

“Did you understand that it was all hip injuries that you had suffered at work, that that was what you were being compensated for?--- 2000. Yes.

You didn’t understand, did you, that it was merely one single day’s injury that you were being offered compensation for, did you?--- Could you – I didn’t understand that, could you repeat the question?

You might have heard my learned friend suggesting that there was a date of injury on the letter which in fact was not changed here, which was a date in 2000, which had date of injury on it in respect of the claim?---Yes.

That the insurance company attached the date of injury onto it. Now, you did not understand, did you, that you were only being offered money in respect of a right hip injury on one single day at work, did you?---I can’t say I do, no.

What I suggest to you, is that you understood that you had suffered injuries on many days at work, right hip injuries, lifting heavy things, that had contributed to your hip and that that’s what you were being offered money for?---Yes.”

Apart from the difficulty (which was quite apparent to me) that the plaintiff had in understanding what he was being asked, the last question referred to above does not differentiate between days of work occurring before and after 27 April 2000 and does not state clearly that the plaintiff understood that he was being offered the money in respect of injury sustained on all working days right throughout the course of his employment. I would also refer to the plaintiff’s reference to “2000” in the first answer set out above. In re- examination, the plaintiff appeared to me to become even more confused.

Thirdly, the relevance of the plaintiff’s level of understanding as to for what days and in respect of which period he was receiving money seems to me to be of dubious significance or value. What was being agreed, and for what injury or injuries the plaintiff was being offered and accepting money, seems to me to be determined by and spelt out in the relevant documents. The vague and somewhat confused recollection and understanding of a lay person as to precisely what was being agreed in a somewhat complicated situation, and where what was being agreed was well documented, seems to me to be of questionable relevance. The plaintiff knew that he had been paid the sum of “about $15,000” in respect of injury to the right hip but not for injury to the kidneys. Even if that is relevant, the plaintiff’s evidence makes it clear that this aspect of the matter cannot be taken much further. The level of understanding of the plaintiff as to what was occurring and what was agreed was not addressed particularly in the detailed closing submissions, and I shall not return to it.

The competing arguments

6          I shall deal with the submissions advanced on behalf of the parties in the order in which they were presented.

(a) The submissions on behalf of the defendant

7          The submissions of Mr Fleming and Mr McKenzie on behalf of the defendant, including the written submissions to which Mr Fleming spoke, could be summarised as follows.

8 The essential submission on behalf of the defendant is that the plaintiff has already made a claim and received compensation pursuant to s.98C of the Act in respect of a frank injury occurring on a particular day. He is barred by s.104B(5AA) from making a further s.98C claim in respect of new and additional impairment caused by a later discrete episode of surgical treatment for the injury, this claim being made after the prior claim which resulted in payment.

9          The defendant refers to the decision of the Court of Appeal in Victorian WorkCover Authority v Hartley [2010] VSCA 74. The issue now before the court is whether the disentitling aspect of s.104B(5AA) applies in similar fashion, where the injury to the right hip has been caused over a period of employment involving a number of aggravations and with additional impairment resulting from medical treatment taken over a lengthy period. The plaintiff alleges that the compensation received pursuant to s.98C is in respect of an event or circumstance occurring on a specific day (27 April 2000). It is said that no compensation has been received in respect of right hip aggravations occurring after that date. However, the defendant argues that the decision in Hartley applies in the present case. The plaintiff’s further injuries (those to the kidneys, coronary artery disease and dyslipidemia) all resulted from the use of Voltaren between November 2003 and March 2004, and the consumption of that medication was necessitated by the worker’s right hip injury condition. This in turn resulted from the heavy lifting and other duties performed throughout the course of employment, with right hip symptoms first alleged in mid-1997. Therefore the further injuries (the kidney injuries and the like) resulted from the right hip injury claimed in and compensated for by the claim of 13 March 2007.

10        The effects of s.104B(5AA) cannot be avoided by seeking to break up the right hip injury into successive aggravation injuries. As long as the claimed further injuries produced by the Voltaren intake can be properly seen to have resulted from the already claimed and compensated right hip injury, the further injuries arise out of the same event or circumstance giving rise to the earlier claim. This is so whether or not that injury be properly characterised as one, some or all of the right hip injuries caused by the plaintiff’s employment.

11        The claim form of 13 March 2007, when properly understood, was for all and any employment injuries caused to the right hip and did not attribute that injury to any particular date or dates. Regardless of any date of injury on the correspondence, the insurer treated it as if what was being sought was an assessment in respect of all and any right hip injuries that had occurred throughout the period of employment after November 1997. The claim form was sent with a letter from the plaintiff’s solicitors stating that they acted for the plaintiff in relation to injuries suffered in the course of his employment. When Mr Leitl carried out his assessment, he was provided with a bundle of medical reports and took a history of heavy lifting between 1991 and the cessation to the work on 4 February 2004, this including trouble with the right hip in 1997, a similar episode in April 2000 and a recurrence in April 2003. This latter recurrence was associated with treatment by way of anti- inflammatories, chiropractic treatment and the taking of x-rays. The end stage renal failure was then discovered in early 2004. By the time Mr Leitl reported, a total hip replacement was imminent. His assessment was on the basis of an assumed good result. Mr Leitl then reassessed after the surgery, and arrived at his determination of 15 per cent whole person impairment.

12 The offer contained in the letter of the insurer of 24 October 2007 referred to the acceptance of liability for the right hip injury claimed and the rejection of liability for the claimed injury to the kidneys. There was no attempt to limit the injuries by denying those that might have occurred in a particular employment period, and this is consistent with the manner in which the claim was made, there being no such limitation contained in it. The fact that the “Date of Injury” has been described as 27 April 2000 for the purposes of the administration of the s.98C claim, and was so set out at the head of the letter of 24 October 2007, does not do the job that the plaintiff’s advisors wish it to do. The plaintiff’s acceptance of the calculation of entitlement notified in the Worker’s Response Form means only that the plaintiff accepted that date, and not any later date, as being the appropriate date for the purposes of calculation of the quantum flowing from the assessment of impairment. The required causal connection for the purposes of the statutory preclusion is established once the worker has claimed for and been compensated for all right hip injuries, aggravations and the like that occurred in the period of work, given that the consequences result from the taking of Voltaren from 2003 in respect of that right hip injury condition. The renal failure and other consequences resulting from the consumption of Voltaren is in turn related to the aggravations of the underlying osteoarthritic hip condition by reason of work performed between 1997 and 2004.

13        The claim for which the plaintiff was compensated did not identify any specific incident of right hip injury or the dates of same. Only the employment activity is identified. It cannot be inferred that the claim is based on a single event or a single circumstance on a particular day. Further, it is not in any way apparent that the insurer so understood or treated the claim. The insurer did not seek to limit its acceptance of liability to a single incident of injury on a specified day or reject liability in respect of injury occurring on other days. It did not seek to deny liability for right hip injuries occurring in circumstances of lifting after the specified day of 27 April 2000. When making his assessment, Mr Leitl was not asked to confine his attention to injury on a particular day or before a particular date. Clearly he took into account, for the purposes of his assessment, the worker’s duties over the entire course of employment. He assessed the entire current right hip impairment without attributing it to anything that occurred on a particular day or during a particular period. This was in accordance with the manner in which the plaintiff described his claim and the occurrence of injury. The insurer then took into account Mr Leitl’s assessment of the entire right hip impairment when making its determination as to the degree of permanent impairment and the quantification of same. Thus, in its letter of 24 October 2007, the insurer was notifying the worker of statutory acceptance of injury suffered over the course of employment between November 1997 and February 2004, and notifying the plaintiff of the statutory determination of Whole Person Impairment of the right hip in accordance with the assessment of Mr Leitl based upon work performed by the plaintiff during that entire period. The selection of the date of injury was done solely for the purpose of converting the impairment into a proposed offer. The mere assigning of such a date of injury in correspondence could not achieve the consequence of limiting the ambit of the claimed injuries. Thus, compensation was paid in respect of all compensable right hip injuries arising out of heavy lifting events or circumstances during the worker’s employment and resulting in right hip impairment. If it were not so, the plaintiff could also seek further lump sum compensation for current right hip impairment attributable to all and any right hip injury aggravations occurring in compensable circumstances on any date other than 27 April 2000, or compensable right hip injuries after 27 April 2000. This cannot be correct.

14        Further, the opinion expressed by the Medical Panel on 20 June 2008 is based upon questions, in turn based upon the pleaded injuries, which in no way confined consideration of the right hip injury to what occurred on or before a particular date. For example, the Panel was asked whether the plaintiff’s kidney condition was materially contributed to by the right hip injury, but it was not asked to confine its consideration to injury occurring on or before a particular date. When it opined that the plaintiff’s kidney condition was materially contributed to by the right hip injury, that takes one back to the right hip injury as referred to in the Amended Statement of Claim, which must in turn mean successive right hip injuries caused by repetitive heavy lifting over the course of employment and dating back to 1997.

15        The defendant’s fall-back position is that, even if the claim which was paid was in respect of a limited period up until April 2000 or, and what is even more unlikely, in respect of the single date of 27 April 2000, the required causal connection between the event or circumstance in respect of the injuries for which compensation was paid, and the injury or condition for which compensation is now sought, would still exist. This is so regardless of the fact that the date of 27 April 2000 has been assigned by the insurer in relation to the claim for which compensation has been paid. Even if the defendant was limited to an argument based upon injury up until 27 April 2000, the fall back position is that there is an appropriate connection for the purposes of s.104B(5AA) between the period specified and what is now being claimed in relation to renal failure and the like. A sufficient causal connection exists between the event or circumstance compensated and the present claim. It is not necessary that the compensated event be the only cause out of which the later condition of injury arises.

16        The decision of the Court of Appeal in Hartley emphasises that, as long as the original injury is still operating and there is a causal connection between the original injury and what is now being claimed, the latter arises out of the same event or circumstances and therefore a claim in respect of it cannot be made.

17        The facts are not really contested. It is to be remembered that the claim form came into existence long after the plaintiff ceased work and on its face appears to be embracing the entire period of employment. It refers to the lifting of heavy drums, but does not attribute the injury to any particular date or dates. The claim form was accompanied by a letter from the plaintiff’s solicitors, and there was no suggestion in that letter that the claim was one in respect of a limited period of employment. It is repeated that the history taken by Mr Leitl, when assessing, covered the entire period of employment through to 2004.

18        In addition, the Medical Panel characterised the plaintiff’s condition as long- standing, it being surgically treated osteoarthritis of the right hip. There is no suggestion in its Opinion that the injury occurred on a particular day or over a particular limited period. Therefore the finding of the Panel is that the kidney injuries were materially contributed to by all the right hip injuries alleged in the Statement of Claim, that is from 1997 onwards. Its binding Opinion carries with it the necessary implication that the kidney injuries were materially contributed to by all the heavy lifting. That is so even if the compensation paid in 2007 is characterised as only relating to events and circumstances occurring on and prior to 27 April 2000. There is no break in the causal chain. The plaintiff’s right hip condition was attributable to the right hip injuries occurring in heavy lifting circumstances throughout the course of employment, and the use of Voltaren was caused by that condition and caused the injury. Therefore the kidney injury arises out of the same events as gave rise to the injury occurring onwards from 1997 and for which compensation was paid. The kidney injuries do not have to arise only out of the same event or circumstance for the purposes of s.104B(5AA) but simply out of the same event or circumstance.

19        The same logic applies to the other injuries of coronary artery disease and dyslipidemia. The Medical Panel associated the sequelae of the right hip injury with the entirety of the compensable condition, and without qualification or limitation. It was the right hip condition, in its entirety, which was the subject of the 2007 claim and compensation. The events or circumstances out of which the further injuries arose are the same events or circumstances (at least in part) out of which the right hip injury, which in 2007 was claimed, admitted and paid, arose. Accordingly, s.104B(5AA) prevents a further claim.

20 Indeed, this is consistent with the opinions of Mr Leitl, Mr Falkenberg and Mr Vikraman to the effect that there was slow progression of the injury based upon repeated heavy lifting. The medical evidence is to the effect that there was no particular incident at work which was more causally relevant than any other. The conclusion of the Medical Panel was thus inevitable, namely that the right hip condition was materially contributed to by all the multiple aggravation injuries that had occurred and these led to the consumption of the Voltaren and the consequential injuries. The further injuries arose out of the same events or circumstances, namely instances of heavy lifting resulting in right hip injury aggravation, being the same injuries for which compensation was claimed and paid. It was following the favourable response from the Medical Panel that a further claim for s.98C lump sum compensation was made.

21        The insurer accepted liability in respect of the right hip injury without qualification. It then proceeded to assessment and determination of impairment. The entitlement offer of $15,140 was then conveyed. The plaintiff accepted this. There was no contest in respect of the liability determination. The insurer had not limited the right hip injury (or recurrent injuries) for which it was accepting liability and the plaintiff in turn accepted what was put to him. Had the insurer indicated that it was only prepared to accept injuries up to a certain date, this is something which the plaintiff could have contested if he so desired. However, the insurer accepted the claimed injury or injuries to the right hip and rejected none.

22        The insurer nominated a date of injury (27 April 2000) and made its calculations on that basis. Had it selected a later date, the calculation would have resulted in a larger sum being paid.

23        It is clear from the plaintiff’s oral evidence that heavy lifting-type incidents continued until he ceased work in 2004. When he made his claim in 2007, he had already ceased performing such duties. The claim form referred only to the type of activity which the plaintiff had been performing, namely the lifting of heavy drums and associated activities. This is also consistent with the medical histories obtained. The medical evidence does not suggest that the occurrence of injury stopped in 2000, and indeed there is a particular heavy lifting incident in April 2003 of which the defendant and its insurer were aware and concerning which it had received a medical report. However, this was not disputed and the 2007 claim accepted in its entirety accordingly. Further, Mr Leitl simply assessed the entirety of the right hip impairment by reference to circumstances that prevailed over the period of many years. The notification to the plaintiff was that the insurer was accepting liability in respect of the right hip injury occurring over employment between November 1997 and February 2004. This was consistent with the opinion and assessment of Mr Leitl. Accordingly, the offer that was made and accepted was in respect of all compensable right hip injuries arising out of lifting events and circumstances occurring during the plaintiff’s overall period of employment.

24        It is also of significance that Mr Falkenberg reported on 15 November 2006 that the plaintiff developed pain in his job without any specific injury, and that his job involved the frequent manipulation of 20 kilogram drums of paint. Mr Khan, who also examined the plaintiff, referred to radiological evidence of advanced disease. Reference was made to the repetitive lifting of drums and aggravation over a long period of employment with the aggravation factor persisting. The plaintiff’s employment accelerated the need for surgery and the progression of the underlying degenerative arthritis. A letter from Dr Carson to Mr Chamberlain also refers to severe osteoarthritis in the right hip and with an episode coming on after a strain at work in 2003.

25        Finally, the answer to Question 2 directed to the Medical Panel leads to the binding result that the kidney injuries now claimed arise out of the same event or circumstance as the right hip injury for which compensation was paid, because it takes one back to all the pleaded heavy lifting and the like. There is no break in the causal chain.

26 For the above reasons, the Act operates so as to prevent the making of any further claim.

(b) The submissions on behalf of the plaintiff

27        The submissions of Mr Gorton and Mr Wicks on behalf of the plaintiff could be summarised as follows.

28        Firstly, the report of Mr Khan, to which reference has just been made and which report was addressed to the insurer, specifically refers to injury in the year 2000, and the date of injury shown at the beginning of Mr Khan’s report is “27.04.2000”.

29        The factual situation dealt with by the Court of Appeal in Hartley differs from that which is currently before the court. Furthermore, what was said in Hartley seems to indicate that there must be a direct connection between the particular injury under consideration and the second or subsequent injury before it can be said that the two necessarily arise out of the same event. Had the only hip injury been that which occurred on or before 27 April 2000, it is admitted that the present claim could not be made.

30        The example is drawn of a worker suffering a knee injury with employer A and obtaining compensation for it. Subsequently with employer B the knee gives way again, and the plaintiff falls, suffering head injuries. This would be a different circumstance.

31        What was in fact said in Hartley, and how the relevant provisions operate, can be seen if one takes the example of a traumatic event where an individual breaks limbs and suffers a back injury. Separate claims cannot be put in for the various injuries because they all arose out of the same event. However, the legislation does not provide that if an injury is suffered, a claim made and compensation paid in respect of a body part, and subsequently a further injury is suffered to the same body part, a further claim pursuant to s.98C cannot be made.

32        Whilst the word “circumstance” is a nebulous one, if there are two separate events of injury, distinct in time and effect and even if one is cumulative upon the other, they should be seen as not arising out of the same event or circumstance.

33        In the present case, a claim was put in and a deliberate decision was made by the insurer to recognise it as one constituting injury suffered up to 27 April 2000. Thereafter, every time the insurer dealt with the claim, it relied upon the April 2000 date as being an important part of its decision-making process. It was dealing with injury on or before that date.

34 The insurer accepted liability for the original hip injury. When a later claim was made in respect of hip injury and injury to the kidneys, it rejected the later claim for hip injury. That rejection was subsequently overcome by court proceedings, but the fact that such rejection occurred is only consistent with the insurer firstly dealing with injury up to 27 April 2000 and accepting same, and later rejecting the concept of injury after that time. When the claim pursuant to s.98C was then put in, this resulted in the payment of the sum of approximately $15,000. The defendant now claims, inconsistently, that what was being considered was everything that had occurred to the hip up until the time of that payment. However, in order to save itself money, it was using figures consistent with the date of injury selected. When the plaintiff was notified about these matters in the Notice of Rejection of 24 October 2007, such Notice specifically stated that the date of injury under consideration was 27 April 2000. Further, in that Notice of Rejection, it is specifically stated that liability is accepted for the hip injury of 27 April 2000 and rejected in respect of the injury to the kidneys arising from the hip injury in April 2000. In respect of the hip injury, the offer made by the defendant and accepted by the plaintiff was in the sum of $15,140, this amount being calculated on the basis of the rates appropriate to an injury in April 2000. In essence, the letter of 24 October 2007 states that 27 April 2000 is the date of injury and it is that for which the offer of payment is being made.

35 Subsequently, the plaintiff claimed to have suffered further injury by way of general aggravation over the period between April 2000 and April 2003, and a specific incident of further injury to the hip in April 2003. This injury triggered renewed and continuing treatment from the plaintiff’s general practitioner and his chiropractor and, for the first time, caused him to take anti-inflammatory medication which lead to the further injuries. This is not something that is directly related to anything that happened in April 2000 or before that date. It is a different event which gives rise to a separate entitlement to claims pursuant to the Act. The second claim pursuant to s.98C was made on an approved form which makes no provision for the insertion of a specific date of injury. The claim on its face is dateless but includes the material necessary for any further evaluation.

36        Initially, this claim was denied by the insurer, but the reference in such denial was again to injury sustained in the course of employment in April 2000. Essentially, it is saying that the plaintiff cannot have any more money in respect of injury sustained in April 2000. After correspondence with the plaintiff’s solicitors, in its letter of 8 January 2009 the insurer again stated that the plaintiff’s current claim related solely to the initial incident and effects of the right hip injury occurring on 27 April 2000, and that he cannot claim twice for the same event or circumstance.

37        It is untenable for the defendant to assert that it has ever dealt with or paid any compensation for anything other than injury in April 2000. However, the Medical Panel opinion requires it to make payments in respect, at least, of the April 2003 injury which in turn provoked the need for anti-inflammatory medication for the aggravated hip injury and which resulted in the further injuries.

38        In the present situation, there is no suggestion of double dipping. If the plaintiff were to make a further claim specifically in relation to the hip as a result of injury subsequent to April 2000, the amount of compensation payable in respect of impairment which occurred in 2000 would have to be offset against the amount determined in respect of increased impairment subsequently occurring.

39        The fall back position advanced on behalf of the defendant disregards the long-established compensation law recognition of the fact that the same body part can be injured on more than one occasion and compensation paid even if the symptoms have not been manifested at the time of the first injury. Reference is made to the decision of the Court of Appeal in Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172. In April 2003 the plaintiff suffered a separate injury which had its own consequences and which was an important cause, probably the major cause, of the subsequent problems. It is a new injury arising out of a separate event or circumstance. The plaintiff may be no longer able to claim kidney problems as a consequence of the injury occurring in 2000, but this does not prevent him from making a separate claim arising out of a different event or circumstance in 2003 where the injury then sustained is a cause of all of the consequences from which he now suffers.

40        Reference is also made of the decision of the Court of Appeal in Victorian WorkCover Authority v Bennett [2003] VSCA 116. That establishes that a second minor injury, following an earlier major injury to the same part of the body, creates entitlements which exist independently of the first injury. In the present case, what the insurer in fact paid for, and after consideration and apparent discussion with the defendant, was the injury of April 2000. If the plaintiff wanted anything more at that time, he would have been forced to go through a process of litigation and the like. He is entitled to his compensation for further injuries subsequently suffered.

41 Separate claim numbers were given. This must mean that insurer was dealing with a different injury. Once it is seen that the events of April 2003 represent a separate injury and play a causative role, as the Medical Panel has found, in the substantial incapacitating problems which the plaintiff has, there is then no problem with the plaintiff putting in a separate claim and being paid compensation properly assessed under s.98C and s.98E. The incident of April 2003 produced symptoms which required a dramatic change in treatment. That this occurred was recognised, for example, by Dr Miller and other doctors, but this was disregarded by the insurer. The medical material reveals a dramatic change in chiropractic treatment from April 2003 through to the end of 2004. The medical records would also indicate that there was very little treatment prior to April 2003, although the plaintiff has said that he was taking some Panadol. Medical treatment, along with chiropractic treatment, was more regular after that date. The event complained of in 2003 has clearly had an important impact upon presentation and was the trigger for the prescription of the anti-inflammatories causative of the disabling body symptoms, as confirmed by the Medical Panel,. The plaintiff is not precluded from bringing the claim which is before the court and is entitled to the declaration sought.

(c) The reply on behalf of the defendant

42        The reply of Mr Fleming and Mr McKenzie on behalf of the defendant could be summarised as follows.

43        It is not correct to say that the defendant was doing well prior to the 2003 incident. He was taking two to four Panadol a day and suffered nagging pain (although I note in fact that the plaintiff’s evidence was that he was “doing all

right” with the use of Panadol and was performing physical work during that

time). Secondly, reference is made to paragraph 52 of the decision of the Court of Appeal in Hartley and to the statement that the earlier injury and the further injuries had the same genesis. That concept also applies in the present case. The same genesis again exists, in that the genesis of the renal failure and its sequelae is that the right hip condition was aggravated throughout the course of employment.

Ruling
(a) The statutory provisions
44	A central issue in this case is the interpretation and application of the words “arising out of the same event or circumstance”, which words are to be found in s.104B(5A) and (5AA) of the Act. The operation of those words has to be considered against the somewhat complicated factual background which has been set out above in order to ascertain whether the claim and injuries currently under consideration arise out of the same event or circumstance as the claim or claims previously made.
45	The relevant provisions which attracted much attention during the conduct of this case and in which the words referred to above are to be found read as follows:

“(5A)	A worker must include all injuries arising out of the same event of circumstance in a claim for compensation under section 98C.
(5AA)	A worker can only make one claim for compensation under s.98C in respect of injuries arising out of the same event or circumstance.”

46        As shall be discussed, the meaning of the words “arising out of the same event or circumstance” is touched upon in the decision in Hartley. However, the meaning or interpretation of the individual words was not enlarged upon in any detail. I was not directed to any other authority in which the meaning of the phrase or of its individual components is analysed in a way which would be helpful in the present case. In the Macquarie Dictionary (revised 3rd edition), the definition of “same” which appears to be most apt in the context of the present case is “identical” or “being one or identical”. In turn, “identical” is defined as “corresponding exactly in nature, appearance, manner, etc”. “Event” is defined as anything that happens, an occurrence, or something which occurs in a certain place during a particular interval of time. “Circumstance” is defined as a condition which accompanies, determines or modifies a fact or event. It is also defined as an incident or occurrence. These definitions seem to me to be useful when examining the provisions under consideration. I would emphasise that the event or circumstances is required by the legislation to be “the same”, not “similar”.

(b) What constitutes the original event or circumstance?

47        In order to carry out the comparison required by the provisions, an attempt must be made to identify the original event or circumstance. In that regard, I make the following observations which are not listed in order of importance:

(i) It is claims pursuant to s.98C that are of signal significance for the purposes of sub-ss.(5A) and (5AA). The plaintiff’s original claim for impairment benefits pursuant to s.98C is that which he signed on 13 March 2007; it refers to injury to the right hip and to both kidneys; and describes the injury or condition as occurring as a result of lifting heavy drums from under racking and, in the case of the kidneys, medication treatment for “original work injury”. No date or period of injury is specified, and the earlier claim form numbers in respect of the claims for the payment of medical and like expenses and weekly payments of compensation are cited.

The response of the defendant’s insurer to this s.98C claim is dated 24 October 2007. It is clear, both in the heading of the letter and in the first paragraph, that the date of injury under consideration is 27 April 2000. Further, in paragraph 6(2) headed “Liability Determination” the following is stated:

“The Victorian WorkCover Authority has determined liability for your claim pursuant to section 104B(2) of the Accident Compensation Act 1985 (The Act) in relation to injuries to the right hip and both kidneys which you have claimed to have sustained as a result of your employment on 27 April 2000.”

It is then stated that liability in relation to the right hip has been accepted, but rejected in relation to both kidneys, and reference is made to the medical examination carried out by Dr Vikraman in that regard.

(ii) The letter of the insurer of the defendant of 24 October 2007 also contains a calculation of the plaintiff’s entitlement to compensation for Whole Person Physical Impairment, the basis of this being the accepted injury to the right hip. That assessment is in the sum of $15,140, this resulting from a combined physical whole person impairment of 15 per cent. The figures contained in the calculation of the amount of $15,140 are clearly based upon those contained in the table appended to s.98C of the Act for injury occurring between 1 July 1999 and 30 June 2000. I might add that the fact that this was so was not disputed by the defendant. Of course, this is consistent with the date of injury being 27 April 2000 as specified in the insurer’s letter of 24 October 2007. As I read the table appended to s.98C, had the date of injury been April 2003, or indeed had the insurer’s offer been intended to cover injury sustained during the entire period of employment through until February 2004, the calculation of combined Whole Person Physical Impairment would have resulted in a much greater figure. It seems to me that it would have been at least double the amount offered. Further, the Worker’s Response Form, prepared by the insurer and ultimately signed by the plaintiff and pursuant to which the offer was accepted, does not bear a date of injury but does have in its heading the claim number “12 03 0006320”. That is the claim number in the heading of the letter dated 24 October 2007 in which the offer was conveyed and in that heading the date of injury is described as 27 April 2000.

(iii) Thus, against a background of previous (and accepted) claims, the plaintiff has made a claim pursuant to s.98C and in which the precise date of injury is not described. The defendant, via its insurer, has seen fit to select as the date of injury 27 April 2000, base the calculation of compensation for impairment upon the rates prevailing at that date, and offer same to the plaintiff, clearly setting out more than once that what is being offered is based upon injury occurring on 27 April 2000. It is that offer which the plaintiff has accepted. Even if the situation was viewed in terms of a simple question of contract, the outcome seems to me to be clear. The offer made was of $15,140 specifically stated to be in respect of, and calculated on the basis of, injuries sustained on 27 April 2000. The plaintiff accepted the offer. Consideration, namely the payment of, or the promise to pay, $15,140 existed. The plaintiff did not dispute the liability determination, the physical assessment, or the calculation of entitlement. The claim insofar as it related to the kidneys was rejected, and this was not challenged. Thus, when the peripheral matters are put to one side, what happened, in contractual terms, was comparatively simply. The plaintiff was offered a sum of money on the basis of injury occurring on 27 April 2000. He accepted that. Consideration flowed. This underlines the fact that the claim being dealt with at this time related to injury on 27 April 2000 (or at least not in respect of an injury at a later date when the basis of calculation would have been different). I might add that, again viewing the situation in terms of contract, if what was being offered was intended to be on a different basis from what appears to have been explicitly expressed, and the plaintiff accepted the offer whilst being unaware of this, scope would appear to exist for arguments concerning whether the terms of the written agreement are binding regardless of what the defendant intended or alternatively that the parties were never ad idem.

(iv) For the purposes of s.104B(5A) and (5AA), it seems to me clear that the original event or circumstance with which the required comparison is to be made is injury to the right hip and its sequelae either occurring in the course of employment on 27 April 2000 or, at least, no later than 27 April 2000. Manifestly this is the event or circumstance which the defendant, via its insurer, understood to be the subject of the s.98C claim, assessed it accordingly, and made its offer which the plaintiff accepted.

(c) What is the event or circumstance giving rise to the subsequent claim pursuant to s.98C based, and for the purposes of the Act is it the same event or circumstance as that described above?

48        In continuing with the required comparison, I turn now to the subsequent claim. I would make the following observations, which, again, are not listed in order of importance.

(i)

The claim pursuant to s.98C now under consideration, namely that of 1 December 2008, on the basis of the decision in Hartley could not succeed and would be precluded if nothing of relevance occurred at the workplace after 27 April 2000 (that is giving to the earlier claim the broader and more generous interpretation that the event or circumstance with which it was involved was injury arising out or in the course of employment up to 27 April 2000 and not so arising just on that specific date). If, for example, the plaintiff had ceased work permanently as at 27 April 2000, had made the claim pursuant to s.98C of 13 March 2007 for injury to the right hip and kidneys, and had subsequently attempted to lodge the further claim pursuant to s.98C of 1 December 2008, the decision in Hartley would seem to stand squarely in his way. This would be so even if the other facts remained the same – that is, that the consumption of the allegedly damaging medication prescribed in relation to the hip injury commenced in late 2003. Assuming that the plaintiff had simply ceased work as at 27 April 2000, there would have been no break in the causal chain, to employ the wording used in Hartley.

(ii)

However, I agree with Mr Gorton that the factual situation in the present case is quite different from that which existed in Hartley. I have found that the s.98C claim of 13 March 2007, given its broadest interpretation, related to injury arising out of or in the course of the plaintiff’s employment with the defendant up until 27 April 2000. As we know, the plaintiff did not cease work then. He continued to perform work which involved lifting, bending and the like. Specifically, in April 2003 the plaintiff experienced a particular incident of right hip pain at work when lifting heavy paint drums. I would refer to the following questions and answers in cross-examination to be found at pages 24 and 26 of the transcript:

“Do you recall today that recurrence? --- I recall – I recall the morning, it was a cold morning, miserable and I even remember it was raining outside because it was so freezing in the warehouse and I picked up a couple of drums, early, start off the work and my hip went again.

Yes I see and this is the right hip? --- Yes.

Then in I think it’s April of 2003 you had a particular
occurrence of pain? --- Yes.
Yes, and that you associated with a particular lifting event
at work? --- Yes.”

I might add that the plaintiff was a completely credible witness, and there was no suggestion that his evidence was anything other than reliable.

In his report to the defendant of 27 August 2003, Dr Miller has taken a history that “in April this year he experienced a further recurrence of right hip pain at work from lifting heavy paint drums. He consulted his local doctor, Dr Carson, who prescribed anti-inflammatory tablets. He also did regular chiropractic”. Further, the records of Dr Carson reveal an attendance by the plaintiff on 14 April 2003 (the previous one being 18 April 2002 for an unrelated matter). Whilst no history is revealed in the records of Dr Carson, it is apparent that Feldene was then prescribed and that shortly thereafter Dr Carson organised for x-rays of the right hip and right knee, apparently querying the possible existence of osteoarthritis of the hip.

The chiropractor, Mr Corbett, saw the plaintiff on 13 May 2003, not having seen him since 12 November 2001 and that 2001 attendance would appear to have been for some difficulty with the A/C joint. Whilst Mr Corbett’s notes are not particularly easy to read, it is apparent that he recorded that the plaintiff had seen Dr Carson one month ago and that Feldene had been prescribed, and that an x-ray of the right knee and right hip had been performed. Mr Corbett has also recorded “WorkCover injury felt twinge at work” and, whilst it is difficult to read, there appears to be reference to 12 April. An undated typed report of Mr Corbett refers to his treating the plaintiff since 13 May 2003 for right sided low back pain referring to the right buttock and posterior and the right knee, the injury appearing to be “a re-aggravation of a previous injury he initially incurred in 1997 as a result of repeated lifting activities in the course of his work for Barloworld. There was also an aggravation in June 2000”. Mr Corbett refers to earlier treatment given by him in 1997 and goes on to state that he treated the plaintiff on 10 occasions between 13 May 2003 and 16 August 2003. I further note that Mr Leitl, examining on behalf of the defendant on 24 April 2007, took a history of recurrence of right hip pain in April 2003.

In addition, I would refer again to the plaintiff’s evidence-in-chief where he stated that, after the April 2003 incident at work, his condition worsened suddenly and “stayed bad” thereafter. In summary, that the overwhelming weight of evidence seems to me to point to the occurrence of a discrete incident of injury to the plaintiff’s right hip occurring in the course of his employment in April 2003 and a marked deterioration in his condition and exacerbation of his symptoms thereafter. This is not something which was dealt with in the previous claim pursuant to s.98C.

(iii)       Referring again to the plaintiff’s evidence and to what seem to be facts that are not in issue, it was following the April 2003 incident that Dr Carson prescribed Feldene. Following this, the plaintiff broke out in a rash and on 27 November 2003 Dr Carson ceased prescribing Feldene and commenced prescribed Voltaren, this continuing until the renal failure and the cessation of that prescription as at 1 March 2004. There is no evidence to suggest that without the incident of injury of April 2003, Voltaren would ever have been taken by the plaintiff over a period, or at all.

(iv)       As stated, this seems to me to be a significantly different factual scenario from than that prevailing in Hartley. In Hartley there was a direct connection between the injury suffered (which was the subject of a s.98C claim) and further injury sustained as a result of treatment of the original injury without any interference to the causal chain. In the present case, and leaving to one side any general or gradual aggravation as a result of repetitive lifting and bending after 27 April 2000, there is a further and specific incident of injury in April 2003. This was sudden, and followed immediately by a worsening of the plaintiff’s condition. This in turn led directly to the prescription and consumption of, firstly, the Feldene and then the Voltaren.

(v)        In his reply, Mr Fleming argued that in paragraph 52 of the decision in Hartley, reference is made to the original injury and the further injuries having the same genesis, and that, in essence, that concept applies in the present case. However, that is leaving to one side the observations of the Court of Appeal in relation to the causal chain. Further, it seems to me that the genesis of the additional and relevant injuries suffered by the plaintiff lies not in an event or circumstance occurring on or before 27 April 2000 but in events and circumstances that occurred thereafter and particularly in April 2003.

(vi)       In addition, the use of the term “same genesis” may well have been appropriate in the context of the factual situation in Hartley. It seems to me to be less appropriate in the present case where there has been a subsequent event of injury which gives rise to new entitlements. “Same genesis” is not an expression to be found in the sections of the Act relevant for the purposes of the present litigation, or at all in relation to the provision of statutory benefits. Where there has been no further incident of injury, “same genesis” may well be the test to be applied in accordance with the ruling of the Court of Appeal. However, when there is a subsequent event or injury (and sequelae thereof), had the legislation intended that the injured worker be deprived of the statutory benefits flowing there from, it would surely have said so. On the contrary, the statutory definition of “injury” and decisions such as Grech, would point in the opposite direction.

(vi)       There is some force in the argument advanced by Mr Gorton that some significance attaches to the fact that the defendant, via its insurer, accepted liability for the “original” hip injury, but, when the later claim was made in respect of the hip injury and injury to the kidneys, it initially rejected that claim in respect of both the hip and the kidneys. The rejection in relation to the hip injury was later overcome by court proceedings. However, that initial rejection is consistent with the proposition that the insurer was differentiating between injury to the hip sustained on or prior to 27 April 2000 and such injury occurring after that time. It accepted liability in respect of the former. Its reaction to the latter was to reject it. Whilst I am not suggesting that this is a decisive argument, it is, as stated, at least consistent with the position advanced on behalf of the plaintiff.

49 Bearing in mind the above, in my opinion the event or circumstance which gave rise to the s.98C claim of 1 December 2008 was injury to the right hip sustained in the course of employment after 27 April 2000 and particularly in April 2003, such injury leading directly to the consumption of the medication. That in turn is the basis of the allegation that the plaintiff sustained the relevant injuries involving the kidneys, coronary artery disease and dyslipidemia.

50        In relation to whether the relevant injuries arise out of the same (in essence, identical) event or circumstance as that prevailing in relation to the earlier claim, I would state as follows.

51 I am of the view that, for the purposes of s.104B(5A) and (5AA), the event or circumstance forming the basis of the claim pursuant to s.98C made on 13 March 2007 is confined to injury occurring on or before 27 April 2000, if not to that specific date. The claim pursuant to s.98C of 1 December 2008 does not arise from the same event or circumstance, but arises from an event or circumstance occurring after that date and in particular in April 2003. The latter claim does not deal with injuries arising out of the same event or circumstance as the earlier claim.

52 I might add that the above approach is completely consistent with established compensation law and, indeed, with the definition of “injury” contained in s.5 of the Act. “Injury” is specifically defined as including “a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease”. Thus, the recurrence or aggravation of the right hip injury which occurred after 27 April 2000 and particularly in April 2003 would represent something which created for the plaintiff an entitlement to benefits under the Act regardless of what had earlier occurred. Indeed, such an injury could well be described as an “event”, within the meaning of that word as defined in the Macquarie Dictionary and as set out previously.

53        It is also well established compensation law that a recurrence or aggravation of an existing injury is an injury in itself creating new entitlements. One could go back to old cases such as King v Hayward (1943) 67 CLR 488. Suffice to say that the definition of “injury” contained in the Act embraces the long- established law. I would also refer to the decisions in Bennett and Grech to which I was directed by Mr Gorton.

54 In summary, I accept that the claim of 1 December 2008 pursuant to s.98C arises from an event or circumstance which is not the same event or circumstance constituting the basis of the claim of 13 March 2007.

(d) The “fall back” arguments advanced on behalf of the defendant

55 The “fall back” or alternative contention advanced by Mr Fleming seems to me to contain two propositions or ingredients which could be viewed as constituting “stand alone” arguments or which could be viewed as interlocking so as to produce one argument. One is that, even if it was considered that the earlier s.98C claim (and the compensation paid) was confined to injury occurring on or before 27 April 2000, nevertheless the injuries ultimately suffered and the claim in relation to them, pursuant to the Act arose from the same event or circumstance. Their genesis lay in the work performed and the injuries suffered by the plaintiff throughout the course of his employment with the respondent before and after 27 April 2000. The work performed and the injuries suffered before 27 April 2000 gave rise to the necessity for the prescription and consumption of the medication and thus the later claim arose from the same event or circumstance as the earlier claim. The evidence in general, including the opinion of the Medical Panel, establishes that the right hip injury, leading to the consumption of Voltaren, occurred throughout the entire period of the employment from 1997 until 2004. The second component of the argument is that the opinion of the Medical Panel to this effect is binding by reason of s.68(4) of the Act.

56 It is probably apparent from what I have already stated that I do not accept the first component or argument advanced by Mr Fleming as part of the defendant’s “fall back” position. As stated, I reject his principal contention that the s.98C claim made on 13 March 2007 and the compensation offered and accepted in October of that year, such compensation being paid on the basis of the claim made in that year for right hip injury, was made respect of all compensable right hip injuries and their sequelae suffered by the worker in heavy lifting incidents during the course of his employment after 12 November 1997. However, I also reject the alternative contention that, even if the earlier claim be properly characterised as having been paid only in respect of right hip injuries occurring on or before 27 April 2000, on the basis of the Medical Panel opinion and the evidence further injuries attributable to Voltaren use arise out of the same event or circumstance as that claimed and admitted. It does not seem to me to be to the point that some of the histories taken by medical practitioners or other persons examining or treating the plaintiff, or the opinions expressed by them, deal with the period of employment as a whole and do not divide it into pre- and post-27 April 2000 parts. The fact of the matter is that the defendant opted to select 27 April 2000 as being the date of injury dealt with in the earlier claim and made its assessment and offer accordingly.

57 The other conclusion which seems to me to be inescapable is that the plaintiff suffered further injury after 27 April 2000, and particularly in April 2003, and this led directly to his taking the medication in question. I have already dealt with the sequence of medical and like treatment received immediately after the recurrence of injury in April 2003, the evidence of the plaintiff in this regard and the history taken by Ms Corbett. Further, the report of Dr Miller, following the earliest examination carried out by a medical examiner reporting to the defendant, contains a specific reference to the injury of April 2003. I have found that it was that injury in particular which necessitated the treatment regime and instigated and caused the consumption of the medication. The subsequent injuries arose out of that event or circumstance which, as I have found, is not the same event or circumstance giving rise to the injury previously claimed. Accordingly, in my view the fact that some medical practitioners have expressed opinions based only upon a consideration of the entire period of employment does not assist the defendant. The referral to the Medical Panel and the expression of its opinion pre-dated the issuing of the s.98C claim under consideration, such opinion being expressed on 17 September 2008. The referral seems to have occurred in the context of the plaintiff’s claim for weekly benefits. Indeed, that is the position as put by counsel for each party.

58        I turn now to the opinion of the Medical Panel and its role in the defendant’s “fall back” position.

59 Exactly what material was forwarded to the Medical Panel is unclear. What is apparent is that the Panel implicated employment in relation to the kidney condition being materially contributed to by the right hip injury and found that the plaintiff’s incapacity for work was materially contributed to by the right hip condition and its sequelae, namely acceleration and aggravation of end stage renal failure, dyslipidemia and coronary artery disease. It is apparent that it had before it the Amended Statement of Claim pursuant to which weekly payments were sought. However, the Panel was not asked to turn its collective mind to questions involving s.98C and there appears to have been no attempt made or requested to deal with injuries occurring before or after any set date. Pursuant to s.68(4) of the Act, the opinion of a Medical Panel on a medical question referred to it is to be adopted and applied by any court and must be accepted as final and conclusive by any court irrespective of who refers the medical question or when it was referred.

60        What then has the Panel determined? It has determined that, in the context of a claim for weekly payments of compensation, the plaintiff has no capacity for work and this is likely to continue indefinitely. Such incapacity is materially contributed to by the right hip condition and its sequelae (namely the relevant additional injuries). The Panel has produced no binding opinion as to when any injury may have occurred and it was not asked so to do. The fact that, in its Opinion and Reasons (which Reasons include erroneous dates as to, for example, when the plaintiff underwent x-rays and was referred to an orthopaedic surgeon, these events being described as occurring in 2002 rather than 2003) it finds that the plaintiff’s incapacity for work is materially contributed to by the right hip condition and its sequelae is not to the point. It has not expressed any opinion, binding or otherwise, as to when the plaintiff sustained the relevant injury to the right hip. Insofar as its Reasons are of assistance or carry any particular weight, the conclusion therein expressed in relation to this issue is that it is probable that the plaintiff’s employment has aggravated the underlying degenerative hip condition. This takes matters no further, particularly when it is recalled that the history as to when x-rays were performed, when the plaintiff was referred to an orthopaedic surgeon, and when he was advised that total hip replacement was required would appear to place those events as occurring in the wrong year.

61 Further, even if the opinion of the Panel was interpreted as producing a binding result that injury occurred throughout the course of employment generally – and on the basis of the material before me relating to what was sent to the Panel, the context in which it was sent and its Reasons, I am far from so persuaded – the outcome would not alter. Indeed, such an opinion arguably would reinforce the proposition that injury was suffered after 27 April 2000 and that such injury did not arise out of the same event or circumstance as the injury involved in the s.98C claim pertaining to a circumstance or event occurring on or before 27 April 2000. The same could be said of the various medical opinions from doctors who implicate employment generally but have not had their attention directed to, and have expressed no opinion concerning, injury sustained before and after 27 April 2000 and particularly in April 2003. Further, I disagree with Mr Fleming’s submission that there is no break in the causal chain. There was such a break which resulted directly in the prescription and consumption of the medication which, it is alleged, produced the additional injuries.

62 In summary, I am not persuaded by the “fall back” argument advanced by the defendant or by either component of it. For the reasons set out, it does not lead to the conclusion that the later claim made pursuant to s.98C and the sustaining of the injuries described in it arise out of the same event or circumstance as the earlier claim.

(e) The question of fairness

63 In my opinion there would be an element of gross unfairness to the plaintiff if, given what has occurred, it were determined that his acceptance of the offer contained in the letter of 24 October 2007 was found to preclude him from arguing for the relief which he now seeks. Such preclusion would be by reason of the expansion of the original event or circumstance so as to embrace the entirety of his employment since 1997, and particularly that after 27 April 2000 – an important alteration or addition or which the plaintiff was not informed either prior to or at the time of his acceptance of the offer. It is to be remembered that, pursuant to s.3, one of the objects of the Act is to provide adequate and just compensation to injured workers. It is also to be remembered that the VWA and its agents are required to be model litigants and are required pursuant to the Act to ensure that appropriate compensation is paid. There seems to me to be something inherently unfair in offering to an injured worker an amount which is stated to be in respect of an injury on a certain date (27 April 2000) and calculated in accordance with injury having been sustained on that date, and then, when the injured worker accepts such amount, effectively saying “Ha! Got you! You are now precluded from seeking compensation in respect of impairment suffered after the date which we nominated and upon which we based our calculations and even though we in no way alerted you to the possibility of this”. This resembles a surreptitious attempt to convert acceptance of an offer based upon impairment suffered by reason of an injury sustained on a particular date into a type of “all forms, all injuries” settlement, as they used be described. That does not seem to me to be within the spirit, the intention, or indeed the operation of the Act.

(f) The effect of the Medical Panel Opinion

64        The binding effects of the Medical Panel Opinion have been relied upon by each side. I have already described the manner in which the defendant sought to place reliance upon it. In seeking his declaration, in essence the plaintiff is contending that the opinion of the Medical Panel determines the matter.

65 Whilst I can see some logic in this, I am not totally persuaded by such an argument. For the reasons set out above, I am not convinced that a broadly expressed opinion given in the context of a weekly payments claim, and which opinion is largely addressed to the question of capacity, has the binding effect which is sought. Pursuant to s.68(4), that the plaintiff has no current work capacity, a situation which is likely to continue indefinitely, has been determined. That the plaintiff suffers from the injuries described is also indisputable. The same can be said of the proposition that the plaintiff’s condition of end stage renal failure is materially contributed to by the right hip injury. I would again refer to question 6 and the answer thereto, these being as follows:

“If yes to 3 above, does the plaintiff’s incapacity for work result from or has it been materially contributed to by any, and if so which, of the said injuries?

Answer: In the Panel’s opinion the plaintiff’s incapacity for work is materially contributed to by his right hip condition and its sequelae of an acceleration and aggravation of end stage renal failure, dyslipidemia and coronary artery disease.”

66 Whilst this on its face may appear to be sufficient to produce the result for which the plaintiff argues, the fact of the matter is that, as previously stated, for the purposes of s.98C such an opinion does not attempt to distinguish between an injury suffered before and after 27 April 2000 and, in particular, makes no comment as to injury suffered in April 2003. Further, whilst the opinion of the Panel has the effect of implicating the right hip injury as making a material contribution to the kidney condition and whilst it has set out the conclusion referred to in question 6 above, it has not spelt out that the plaintiff’s employment duties have the required causative link to the right hip condition. There may be a view to this effect expressed in the Reasons, but such a conclusion is not contained in the binding opinion. Put another way, the dots have not been joined. This is no criticism of the Panel or of the Opinion which it has expressed, because it was not asked the relevant question or questions which would enable it so to do.

67        I can appreciate the logic of an argument that, if the Panel is implicating employment generally (which it does not appear to have done or been asked to do in its binding opinion), this means that, in its answer to question 6, the view that it is expressing embraces injury sustained after 27 April 2000 and in April 2003. In the particular circumstances of the case, this is not a conclusion with which I am entirely comfortable. However unlikely it may seem, it appears to me that it is at least arguable that a Panel could conclude that the damage was done entirely prior to 27 April 2000. Given the history of events and the timing involved in the plaintiff commencing to consume the medication in question, this may seem highly improbable. However, it seems to me that the parties should at least have the opportunity of addressing arguments in relation to the binding nature of the Opinion of the Panel and what it covers in the light of the conclusions at which I have arrived. If there are further aspects of the medical evidence or the evidence of the plaintiff which have bearing upon this, I will also hear argument concerning this if it is so desired. At present, and without there being at least the opportunity for the advancing of further submissions, I am not persuaded that, having reached the conclusion which I have in relation to the operation and application of sub- ss.104B(5A) and (5AA), the granting of the declaration sought must automatically follow.

Conclusion

68 I am of the opinion that the operation of sub-ss.104B(5A) and (5AA) does not preclude the plaintiff from making this claim, the subject of the present litigation, pursuant to s.98C of the Act. However, before further considering whether the declaration sought should be granted, I will hear further argument, if necessary, as to the effect of the Medical Panel opinion of 17 September 2008 and as to the impact of any other evidence. In addition, if a declaration of liability is granted, there may be scope for argument as to whether such declaration pertains to all employment after 27 April 2000, more particularly to the incident of injury sustained in April 2003, or to both. I might say that the evidence before me has the appearance of indicating that the intervening factor which disrupted the causal chain was the specific incident of injury in April 2003, but I am happy to hear further argument in this regard. It may be, for the purposes of s.98C, that there is no distinction of significance between the two, but, again, if argument is considered necessary I shall certainly hear it.

69        In summary, I shall hear the parties as to the future conduct of the matter and as to any ancillary orders that are required.

- - -