Hume v Pumpcrete Pty Ltd & Anor

[2006] VSCA 52

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3710 of 2005

TROY HUME

Appellant

v.

PUMPCRETE PTY. LTD.

and

VICTORIAN WORKCOVER AUTHORITY

1^st Respondent

2^nd Respondent

---

JUDGES:	MAXWELL, P., BUCHANAN, J.A. and REDLICH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 February 2006
DATE OF JUDGMENT:	17 March 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 52

---

Accident compensation – Workers compensation – Serious injury – Application for leave to bring common law proceedings – Applicant failed to establish he had sustained injury after 20 October 1999 – Judge entitled to reject applicant’s evidence and accounts he gave to medical practitioners.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P.F. O’Dwyer, Q.C. with Mr J.P. Brett	Nowicki Carbone and Co.
For the Respondents	Mr J.H.L. Forest, Q.C. with Mr P.H. Solomon	Solicitor to the Victorian WorkCover Authority

MAXWELL, P.:

1. I have had the advantage of reading in draft the judgment of Buchanan, JA.  For the reasons given by his Honour, I too would dismiss the appeal.

BUCHANAN, J.A.:

1. The appellant left school at the age of 15 years and commenced work as a concreter.  He continued working as a concreter until about March or April 2000 when he ceased work as a consequence of severe lower back pain.  He was then aged 25 years.  He has not worked again.

1. The appellant brought an application in the County Court pursuant to s.135A(4)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to bring proceedings to recover damages for his injury. In order to obtain leave the appellant was required to satisfy the Court that the injury arose out of or in the course of or due to the nature of his employment and was serious. “Serious injury” was defined to mean, inter alia, “serious long term impairment or loss of body function” (s.135A(19)).

1. In an affidavit in support of the application the appellant deposed:

“On or about 15^th March 2000 I was working at a site in Murrumbeena.  I was required to lift heavy oregon beams from ground level and carry them to a truck.  The beams were approximately 6.1 metres long x 250 mm wide x 50 mm thick.  I believe that they would have weighed in the vicinity of 35 kilograms or more each.  The beams were heavier than normal because they were wet.  It was necessary to move the beams quickly because of the pressures of work and whilst there were other workers in the vicinity, they had other tasks and I was required to do this work on my own.  As I was lifting a couple of the beams, I suffered severe pain in my back which radiated down to my left leg and I had difficulty standing up.”

The appellant reiterated this account in his oral evidence.  He said:

“I did feel a cracking sensation as I was trying to lift the timbers and it gave me a fright and that’s when the pain hit.”

He described the pain as “severe pain in my lower back which went through my buttocks into my legs and I couldn’t stand up straight”, and said that the pain was “excruciating”.  The same accident was pleaded in a proposed statement of claim that was before the Court.

1. The case advanced by the appellant was that on 15 March 2000 he suffered an aggravation to a pre-existing congenital spinal condition. He gave evidence that on 28 October 1998 he fell at work and injured his shoulder, arm and hamstring, suffering headaches and neck and back pain. He described the heavy physical work he performed as a concreter, but said: “It was not of a disabling nature and whilst the work was heavy, I was able to handle it reasonably well.” The appellant said that he had “fully recovered” from the effects of the accident on 28 October 1998, notwithstanding that he received treatment for back pain from a number of practitioners. The appellant could not rely upon the 1998 accident, for his entitlement was limited to injury which arose on or after 20 October 1999. Section 134AB(2) of the Act provided:

“A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 20 October 1999.”

Accordingly, the appellant staked his claim upon the allegation that the injury which resulted in serious long term incapacity or loss of body function occurred on 15 March 2000.

1. The application was refused.  The judge who heard the application held that the appellant had failed to satisfy him that he had sustained “a serious aggravation injury to his lumbar spine as a result of an incident or incidents at work” on 15 March 2000.

1. Counsel for the appellant contended that the trial judge erred in failing to determine the appellant’s condition prior to 15 March 2000 and compare it to his condition after that date.  In Petkovski v. Galletti[1] the Full Court held that in an application for leave to bring proceedings under the Transport Accident Act 1986, which, like the Act, required the applicant to establish that he had sustained a serious injury, where the case was one of aggravation of a pre-existing condition the Court must make an analysis of the extent and impairment of a body function before and after the relevant injury and the additional impairment must involve serious long-term impairment of a body function.

   [1][1994] 1 V.R. 436.

1. In the present case the trial judge did not carry out this exercise.  He was not required to embark upon it, however, unless he concluded that the appellant had sustained the aggravation injury.  On appeal it was contended that the trial judge erred in failing to find that the appellant sustained injury to his back on 15 March 2000.  It was submitted on behalf of the appellant that there was evidence which compelled the finding that the appellant was injured on 15 March 2000 and the injury aggravated a degenerative spinal condition. 

1. Counsel for the appellant principally relied upon a note made on 18 March 2000 by a chiropractor, who had treated the appellant for some time before and after that date.  The note recorded:

“Acute L/B/P with left leg pain.

Chronic problem with acute flame up on March 15 2000 when shovelling all day and went to stand up couldn’t straighten up and laid down to relieve pain but pain persisted.

Since then has had constant pain.

Has had similar pain in past but worked through it – and reported to doctor in past.

No shooting pain down legs.

Constant pain without relief.

Cough, sneeze pain – no strain pain. 

Unable to sit or stand long period (most) movements affected.

No neuro signs (i.e. pins, numbness).”

Counsel also relied upon a report by Mr Dohrmann, a neurosurgeon, who expressed the opinion that the appellant sustained a significant prolapse, most probably as a result of an incident at work on 15 March 2000.  The surgeon said that the fall on 28 October 1998 may have predisposed the appellant to the subsequent development of a disc prolapse, but did not itself cause the disc prolapse.

1. The chiropractor’s note and the surgeon’s opinion reflected the instructions given to them by the appellant.  There was no independent evidence that the appellant sustained injury on 15 March 2000.  The trial judge recited the contents of the chiropractor’s note and observed that the appellant in cross-examination said that he “possibly” did not tell the chiropractor about the onset of pain while lifting and agreed that the shovelling of sand did not cause the onset of pain.  The trial judge did not accept the appellant’s evidence that he was injured on 15 March 2000.  There was a substantial body of evidence to support that conclusion.

1. His Honour found that the appellant’s evidence that he had fully recovered from his prior injuries and was back to normal prior to 15 March 2000 was “totally untrue”.  The appellant had given accounts of the continuing effects of the injuries to a succession of doctors between the date of the 1998 accident and 15 March 2000.  In particular the appellant told a psychiatrist in December 1999 that his “back has gone” and in January 2000 that his back pain had increased and he had “a prolapsed intervertebral disc and sciatic nerve problems.”  The trial judge described the appellant’s attempt to justify the histories given to the doctors as “disingenuous and completely misleading.”

1. His Honour noted that after 15 March 2000 the appellant failed to say that he had injured his back when lifting timber to his chiropractor, whom he saw on 18 March 2000, his general practitioner, whom he saw on 10 April 2000, and to an orthopaedic surgeon he saw in about June 2000.  Indeed the appellant did not mention any event in March 2000 to either the general practitioner or the orthopaedic surgeon.  It was not until 13 February 2001 that the appellant first told a doctor that he injured his back while lifting timber.

1. Finally, the trial judge relied upon the opinion of the radiologist who compared CT scans performed on the appellant and said:

“I believe it is probable the development of overt left-sided lumbo-sacral disc herniation would have occurred related to excessive stress applied to the lower lumbar spine associated with heavy manual work and would not be related to a specific incident.  The addition of herniation  of the nucleus pulposus to a patient with pre-existing radial annular tear can occur with relatively minimal trauma.  I believe Mr Hume had disc degeneration with a radial tear at L5/S1 prior to 15 March 2000 and he was at risk for a development of herniated nuclear pulposus.  The NRR change of 1 August 2000 could have occurred spontaneously in this clinical context.”

His Honour said that this conclusion was in line with the rest of the evidence.

1. In the light of the evidence I consider that the trial judge was justified in rejecting the appellant’s evidence that he sustained injury in his back on 15 March 2000 and the accounts of such an injury which he gave to medical practitioners.  The histories given to the chiropractor and the neurosurgeon, upon which counsel for the appellant relied, fell with the appellant’s credibility.

1. The report of Mr Dohrmann upon which counsel for the appellant relied was preceded by another report in which Mr Dohrmann said that “as a result of the appellant’s employment and more specifically the accident in which he was injured in 1999, he developed a significant lumbar prolapse.”  Mr Dohrmann was not told then of any event on 15 March 2000.  The second report by Mr Dohrmann was the result of a request by the appellant’s solicitors to review the position in the light of the appellant’s affidavit in support of the County Court application.  In my view the trial judge was entitled to draw the conclusion that he “was not satisfied with Mr Dohrmann’s attempts to rescue the situation in his second report or in evidence before me.”

1. Counsel for the appellant also contended that the trial judge failed to consider an alternative case propounded on behalf of the appellant that he sustained injury to his back on 15 March 2000 as the result of shovelling sand.  The alternative case was designed to meet the difficulty attending the case advanced by the appellant in his evidence that for a considerable time after 15 March 2000 the appellant’s account of

1. the injury was that it was caused by shovelling sand, although this case had to contend with its own difficulty that in his oral testimony the appellant denied that the shovelling had caused the onset of pain on 15 March 2000.

1. His Honour considered and rejected a submission by counsel for the respondents that the appellant could not depart from the version of the cause of injury advanced by the appellant in his affidavit and oral testimony.  The trial judge proceeded to consider lifting timber and shovelling sand as events said to have occurred on 15 March 2000 and rejected both of them.  The question he posed for himself was:

“Did any lifting incident or other incident cause the plaintiff a serious injury to his lower back on about 15 March 2000?” (My italics.)

At the end of his reasons his Honour concluded that he was not satisfied that “anything that did happen to the plaintiff at work on 15 March 2000 could amount to serious injury … “

1. In my opinion the appeal should be dismissed.

REDLICH, A.J.A:

1. I would dismiss the appeal for the reasons given by Buchanan, J.A.

---