Jeka v Advanced Industrial Products
[2010] VCC 961
•5 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
WORKCOVER DIVISION
SERIOUS INJURY
Case No. CI-10-01638
| NAJI JEKA | Plaintiff |
| v | |
| ADVANCED INDUSTRIAL PRODUCTS | Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 September 2010 |
| DATE OF JUDGMENT: | 5 November 2010 |
| CASE MAY BE CITED AS: | Jeka v Advanced Industrial Products |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0961 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.104B – determination primarily sought in relation to back injury – whether injury arose out of or in the course of employment – sufficiency of evidence – whether incident which occurred in relation to changing tyre on company vehicle at sporting event on a weekend occurred in compensable circumstances – histories given in relation to onset of symptoms and incidents – whether burden of proof discharged.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Hangay | Shine Lawyers |
| For the Defendant | Mr N Chamings | Minter Ellison |
| HIS HONOUR: |
General background
1 This matter comes before me by way of a Writ and Statement of Claim issued out of this Court and pursuant to the provisions of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. In the prayer for relief, a determination of liability pursuant to s.104B of the Act is sought. This determination is sought in relation to injuries to the back and the left leg, together with scarring and depression. Ancillary orders are also sought. It should be said that the primary injury in contention is that to the plaintiff’s back, but it is the question of liability pursuant to the Act which lies at the heart of this dispute.
2 It is alleged in the Statement of Claim that the plaintiff was employed by the defendant as a sales representative; that at all material times he was a worker within the meaning of the Act and acting in the course of that employment; and that he sustained the relevant injuries throughout the course of his employment with the defendant “and/or to which the employment was a significant contributing factor”. Thus, as can be seen from that summary of the Statement of Claim, causation is pleaded in a general fashion and the reference to “significant contributing factor” was doubtless included so as to cover the possibility of the relevant injuries being in the nature of an aggravation or the like.
3 The Defence filed and served on behalf of the defendant is, in one way, a somewhat peculiar one. Paragraphs 1 and 2 admit incorporation and employment. Paragraph 3 admits what is contained in paragraph 3 of the Statement of Claim, namely that at all material times the plaintiff was a worker within the meaning of the Act and acting in the course of that employment. Paragraph 4 denies that the plaintiff sustained injuries arising out of or in the course of employment or to which employment was a contributing factor, but then specifically pleads that any injury suffered by the plaintiff arose whilst he was pursuing private activities and not employment. This does not seem to sit particularly well with an admission that at all material times the plaintiff was acting in the course of his employment, particularly given that the Statement of Claim also alleges that the plaintiff sustained injuries arising out of or in the course of that employment at a time which presumably was material. Perhaps the vague pleadings in the Statement of Claim and the somewhat confusing defence should have rung a warning bell or been seen as a foretaste of the confusion that was to come, this largely not being attributable to the defendant.
4 In any event, it became clear that this was a dispute centred upon causation, the history of injury, the course of employment and the legal limits of same. Mr C Hangay of counsel appeared on behalf of the plaintiff. Mr N Chamings of counsel appeared on behalf of the defendant. The plaintiff was called to give evidence and was cross-examined. Somewhat belatedly, and after the initial closure of his case, counsel for the plaintiff called the plaintiff’s treating general practitioner, Dr Sheriff. This shall be discussed further. A considerable number of documents were tendered, including a substantial amount of medical material. Each counsel made submissions.
Factual background
5 Establishing the factual background in this case is far from a simple or easy task. Indeed, it requires me to make an analysis or summary not only of the plaintiff’s evidence but of histories contained in various documents. There is no doubt but that ultimately the plaintiff came to surgery to his lumbar spine and had a stormy time thereafter. To his credit, he has since resumed employment. The surgery, which was performed on 26 June 2008, resulted in copious bleeding during the operation and was unable to be completed. Indeed, a subsequent CT scan revealed that a laminectomy had been performed at the incorrect level. What was also found at surgery was that the plaintiff’s spinal canal was congenitally narrow. In any event, the surgery and its aftermath represents the end of the story. It is what happened prior to such surgery that lies at the heart of this case.
6 I shall now deal briefly with the plaintiff’s background before turning to events leading up to or possibly linked to the necessity for surgery.
7 The plaintiff is aged 32 years, having been born on 22 December 1977. He is a married man with children. Having attended St Albans Secondary College until Year 10, he obtained an Engineering Certificate at Newport TAFE. He worked for various employers in what he describes as the power transmission hose, valves and fittings industry. He has worked as a salesman in that industry, gradually advancing to a position of being a sales representative “out on the road”. The plaintiff commenced employment with the defendant on 28 May 2007, his appointment being confirmed by a letter of the defendant dated 26 April 2007. This letter set out the terms of the plaintiff’s employment with the defendant. One important term of the employment was as follows:
“Motor Vehicle
A fully maintained company vehicle will be provided (Ford station wagon, with LPG).”
8 The plaintiff also received a mobile phone for business use, a laptop and a printer. The area which he covered as a salesman was essentially that of the entire east of Victoria and also certain suburban locations. As might be expected, the plaintiff spent a considerable amount of time driving to locations around eastern Victoria. He serviced existing customers, made appointments with some prospective new customers, and made “cold calls” on others.
9 The plaintiff was also supplied with, and took with him in the company vehicle, a box of samples of hose fittings and the like. Apparently this box travelled in the back of the station wagon. It is the plaintiff’s estimate that, when filled with the samples, the box weighed approximately 20 kilograms. As to its size, he estimated it to be the same size as the type of box one would get at the post office. He outlined its dimensions with his hands, and the impression gained was that the box was about one and a half feet by one foot by one foot (45cm x 30cm x 30cm).
10 I accept that the plaintiff had some back trouble prior to June 2008. Apparently he was involved in a motor vehicle accident in 2002, although he described the resultant pain as being higher in the back and near the shoulders. His general practitioner, Dr Sheriff, who treated him at the time, noted multiple soft tissue injuries to the neck and “seatbelt area”. It would also seem that the plaintiff had some prior sporting injury, although the details surrounding this are scanty.
The various histories given
11 The history of events in the week or more immediately prior to the plaintiff’s admission to the Emergency Department of Werribee Mercy Hospital on 17 June 2008 is important. The contemporaneous histories vary considerably. I do not regard the plaintiff as being the most reliable of historians. He effectively admitted that he had engaged in some reconstruction – see T30. Reconstructions do not necessarily lead to the wrong conclusion, but there is a marked variation in the histories given contemporaneously. I also found the plaintiff’s answers as to why the box referred to in paragraph 9 above was weighed, and the circumstances relating to this. Not a great deal hinged upon this issues, but, for reasons which are not entirely clear to me, the plaintiff gave the impression of prevaricating in relation to it.
12 I appreciate and bear in mind that, particularly at and around the time of admission, the plaintiff was obviously in a great deal of pain, apart from being understandably highly agitated following a sequence of falls when his legs gave way under him. I also appreciate that he would have received a considerable amount of medication in the following days, if not weeks. However, the histories given do not sit particularly well with each other and do not sit comfortably with the way the case was presented or with the plaintiff’s evidence. The same can be said of the histories obtained later. Further, the plaintiff’s solicitors have not had him examined for medico-legal purposes by a specialist surgeon who may have been able to take an overview of the situation and analyse the role played by various factors or incidents in the ultimate injury and necessity for surgery. Indeed, no opinion as to causation has been obtained from the treating surgeon. I shall return to these matters subsequently. Hence, what we are left with is a number of histories and scenarios. I now turn to them.
(a) The Statement of Claim 13 The Statement of Claim simply alleges that throughout the course of the plaintiff’s employment with the defendant, the plaintiff sustained injuries arising out of or in the course of the employment and/or to which the employment was a significant contributing factor. Effectively, this tells us nothing that is specific, and gives the impression that the injury was one which occurred over a period.
(b) The way the case was opened 14 Mr Hangay opened the matter on the basis that the plaintiff’s general duties as a driver did irritate his back, but stated “I don’t think the evidence from the plaintiff will point to much in the way of the driving beyond doing anything more than irritating his back”. He stated that there were two critical incidents, the earlier being on 11 June 2008 when the plaintiff was lifting or manoeuvring his box of samples in the rear of the station wagon. This occurred near a customer’s premises in Bayswater. Mr Hangay said that the plaintiff lifted the heavy box out of the box of the station wagon and felt the beginnings of some pain and symptoms at that point. It was a Wednesday and the plaintiff then continued working on that day and on the following Thursday and Friday, taking some medication, not seeking treatment, and “didn’t think much about it at the time”. The plaintiff did not work on Saturday, 14 June.
15 The second incident occurred on Sunday, 15 June 2008 when the plaintiff took his children to a soccer match, came home and discovered that there was a flat tyre on the driver’s side of the vehicle. It was not known when the puncture occurred, but his employer had told him on a previous occasions that in such circumstances he was to change the tyre himself. There was no roadside assist policy. The plaintiff changed the tyre, and became aware of pain after that incident. The plaintiff worked the following day. His legs gave way and he fell in both the defendant’s warehouse and office. He continued to work as best he could. On the following day, 17 June, he was unable to attend work. He had attended a physiotherapist on 16 June. On the following day, he attended a chiropractor. Subsequently he was in so much pain he was driven to the Werribee Mercy Hospital.
(c) The plaintiff’s evidence 16 The plaintiff’s version of events given in evidence was that, on 11 June 2008 at the place of a customer in Bayswater, he went to the back of the car to get out some samples. He reached or leant in, went to grab the box and felt “a little niggle, a twinge” in the lower back. He thought nothing of it at the time, but persisted and kept working away. He was in fact moving the box closer to him. He took the samples out, made the sales call, and remained with the client for some 15-20 minutes. The plaintiff worked normally for the rest of the day, but during the course of the day started getting some pain behind the kneecap and down the left buttock. He started feeling this as he was driving the car. The lifting incident took place after lunch, but not towards the end of the day. The plaintiff repeated that he thought nothing of it at the time, but did take some painkillers, namely Voltaren. When he woke the next morning he felt okay, and kept on working. During the course of the day he was sitting in the car and getting in and out and then “the pain started sort of creeping back”. He kept on persisting, and took painkillers such as Panadol and Voltaren. On the following day, Friday, 13 June, he was still the same, having some pain that he described as “sort of niggly – sort of like a pulling sensation, kind of like a pin sharp pain right behind the knee cap and that was it, I just keep on going with it”. He again took Panadol and Voltaren.
17 He did not work on the weekend. On the Saturday his back was painful, but it felt all right when he woke up on Sunday morning. On that Sunday, 15 June he took his children to watch a game of soccer in St Albans. When he came back to the car, he noticed it had a flat tyre and so he changed it. He noticed that there was a big pin or nail in the tyre. He changed it in the carpark at the soccer ground.
18 Before changing the tyre, he had pains in the leg and was taking tablets, but as he changed the tyre, he crouched down and getting up from that position was “tough”. His back became “a bit more painful”. He repeated that he had pain in the left leg and lower back before he crouched down to change the tyre. He described it as being pretty painful and pretty hard getting back up.
19 Having changed the tyre he drove to a local park where he and the children fed the ducks. They then went home and he sat down, but when he got up he was in a bit of pain, the left leg was “shooting” and he was hurting behind the kneecaps. He described his condition as “burning, like a tearing sensation”.
20 The next morning, being Monday, 16 June, he felt alright so he went to work. He had taken painkillers the previous night. When sitting in the car and driving along, the pain returned, this being pain in the left leg from the hip or buttocks running down behind the kneecap.
21 However, the plaintiff then said that the pain which he experienced on Monday, 16 June was not as bad as that of Wednesday, 11 June. He went on to say that he rated pain on 11 June as a five or six out of ten, but then it became more painful and “just kept on going up”. By Sunday morning, it was probably around six out of ten. He stated that it then did not alter during the changing of the tyre. It remained the same. On Monday morning he was all right but the pain returned when he was working, and was worse than six out of ten by Monday afternoon. The plaintiff then described the incident that occurred when his legs gave way under him. The plaintiff saw a physiotherapist recommended by his manager on Monday, 16 June. He stated that he worked again the following day, visiting a client at Mt Waverley, but again had a fall. He subsequently returned to the office, where he fell again. As a result, his manager told him to go home, and this he did, driving himself.
22 As can be seen, the plaintiff’s version of events was not entirely consistent with the opening and a little confusing as to the fluctuating level of pain after Wednesday 11 June and also before and after the tyre changing incident.
(d) The history given to the physiotherapist on 16 June 2008 23 On Monday, 16 June 2008 the plaintiff attended at Hoppers Crossing Physiotherapy Centre, this being the first medical or like treatment sought by him. It appears that he completed a Patient Self Assessment Form. He drew pain from the buttocks to the knee on each side. The answer to the question “how long has it been there?” was “left hand side has been there for over a week”. The answer to the question “how did the injury occur?” is “? old sport/car accident injury”. The answer to the question “what activities or movements aggravate the pain?” is “not too sure maybe not enough movement all day in the company car/picking up something/stretching”. The history taken by the physiotherapist is of an insidious onset for one week. The next sentence of the history is difficult to read, but relates to a problem, and refers to pain travelling around to the hips. The past history is described as “sometimes stiff usually use exercises – eight years ago problem back”. Between the words “problem” and “back” is a sign which I cannot decipher.
24 It can be seen that neither in the self assessment nor in the history recorded by the physiotherapist is there a reference to any incident, but the presence of pain for a week or more is recorded.
(e) The history given to the chiropractor 25 The plaintiff next saw a chiropractor, Dr Helen Accirito, at Hoppers Crossing Family Chiropractic Centre on Tuesday 17 June 2008. According to Dr Accirito’s report to the plaintiff’s solicitors of 20 September 2008, the contemporaneous history given was that the plaintiff was suffering from constant, severe low back pain which had started the previous week, which was generalised over the lumbar region, and with radiating pain into the buttock and left thigh with pain and weakness in the anterior and lateral right thigh. The plaintiff commented that his pain was aggravated by standing and nothing relieved it, and he found it difficult to stand up after being in a seated position. He also stated that his work required long periods of travelling with considerable distances covered and, at the destination, he was required to lift and carry products and equipment of considerable size and weight.
26 The report goes on to comment upon the “…injury that occurred to the client, Naji Jeka on the 11th June…”. This appears some three paragraphs after what appears to be a summary of the history obtained contemporaneously. Whether Dr Accirito received a history of an actual injury on 11 June or was responding to an enquiry from the plaintiff’s solicitors, or is commenting upon a date of injury mentioned in the letter of referral, is not clear.
27 Thus, the history obtained by the chiropractor which, in its first paragraph, purports to set out what the plaintiff actually stated at the only consultation contains a reference to pain which had started the previous week, and a subsequent reference to an injury of 11 June 2008. Whether the plaintiff’s contemporaneous complaints included reference to injury on 11 June 2008 is not clear, and the letter of the plaintiff’s solicitors which provoked the report is not in evidence.
28 The handwritten notes of Dr Accirito record that the plaintiff was complaining (presumably of pain) in the buttock and left thigh, this having started “last week” and staying the same. There is a reference to leg weakness, and the fact that the plaintiff cannot lift. It is also recorded “esp. R”, presumably meaning right side. It is then noted that the plaintiff was a soccer player, and has had one serious fall 10 years ago. It is recorded that standing aggravates the pain, and that the plaintiff cannot get up after sitting, with a further reference to constant pain. The more detailed history contained in the report to the plaintiff’s solicitors does not appear in the handwritten notes.
(f)
The history given on admission to Werribee Mercy Hospital Emergency Department
29 The plaintiff was taken by his wife and uncle to the Werribee Mercy Hospital on 17 June 2008, this apparently being after he visited the chiropractor. I appreciate that the plaintiff, having had his legs give way under him on several occasions, would by now have been in a state of some panic. Nevertheless, a history was taken and it is as follows. The plaintiff had changed a car tyre on Sunday 15 June 2008 and felt mild pain at 6pm. This became suddenly worse whilst driving. The morning after changing the tyre, being Monday 16 June, he had a few episodes of collapse and was not tolerating the pain despite regular Voltaren. This history is contained in a report of Dr Jack Bergman, Director Medical Services at Werribee Hospital, such report being dated 15 September 2008. There are also handwritten notes, and these confirm that the plaintiff was in extreme pain, was unable to wait there, and had to shuffle to walk. The clinical record of the Emergency Department also includes a typewritten entry which reads:
“Since yesterday afternoon. Nil known injury. States has had associated weakness to legs and has had conscious collapses due to legs feeling weak…”.
30 There are further handwritten notes from Werribee Mercy Hospital, headed “Emergency treatment” and “History, examination and treatment”. These indicate that the plaintiff was treated at nine minutes past nine on 17 June by Dr Crompton. The history reads:
“Low back pain & collapsing. Changed car tire on Sunday – felt no pain – 6pm – suddenly worse whilst driving – pain severe next morning (yesterday) few episodes of collapsing…”.
31 Dr Crompton prepared a typewritten letter addressed to “Dear Colleague in Neurosurgery”, this letter also being dated 17 June 2008. The history contained in this letter, which is doubtless taken from the handwritten notes to which I have just referred, reads as follows:
“He developed low back pain after changing the car tire on Sunday. Worsened the following day and found that he fell forwards on climbing up stairs. Today he has collapsed several times, usually when walking up stairs – landing on his knees.
He had been recently well otherwise.”
32 Even allowing for the fact that the plaintiff was obviously in great pain and in something of a panic, it can be seen that the emphasis in the history given is almost entirely upon the tyre changing incident. The reference to the time of “6pm” and to the sudden deterioration whilst the plaintiff was driving provide additional elements of the history which add to the general confusion, but the state of the plaintiff at the time must be borne in mind. However, the emphasis placed upon the tyre changing is quite apparent.
(g) History obtained at the Western Hospital 33 The plaintiff was kept at Werribee Mercy Hospital overnight, and then transferred to the Western Hospital on the following day, 18 June 2008. In particular, he was referred there to the neurosurgical team. Professor Ian Brand, Medical Administrator, has provided a report dated 7 October 2008. The history recorded in Professor Brand’s report may be extracted from the records of Werribee Mercy Hospital or the letter of Dr Crompton, or may have been taken anew. This is not absolutely clear. In any event, it reads as follows:
“He said he had developed low back pain after changing his car tyre. It was worse the following day and he found that he fell forwards on climbing up stairs. On the 17th he collapsed several times usually when walking up stairs and landing on his knees. He had been recently well otherwise.”
The wording of the history taken by Professor Brand closely resembles that contained in the letter of Dr Crompton, and the strong suspicion would be that Dr Crompton’s letter was its source.
(h) The history obtained by Mr Maartens 34 The plaintiff’s treating neurosurgeon who performed the surgery was Mr Nicholas Maartens. In evidence are his operation record dated 26 June 2008; a letter to Dr Sheriff of the same day; a detailed report to Claire Cully, Surgical Services Manager at the Western Hospital, dated 10 October 2008; and a letter to Mr Damien Tange at Melbourne Neurosurgery, this letter effectively seeking a second opinion, and also being dated 10 October 2008. As one might expect, the history recorded remains much the same in each document. The operation record contains the following:
“This 30 year old male presented with paroxysms of back spasms and pain radiating down the left leg posteriorly as far as the knee. This was accompanied by a left sided foot drop. This had been caused by strain during the repair of a flat tyre”.
35 The letter of the same day to Dr Sheriff is similar, referring to the symptoms and then stating:
“This was after repairing a flat tyre”.
36 The report to Claire Cully mentions the plaintiff’s presentation to the Emergency Department at Werribee Mercy Hospital. It refers to the plaintiff being right handed, married with two sons and working as a sales representative selling PVC piping. It is then stated:
“He had become symptomatic after changing a car tyre. His pain progressed over the following day and became associated with weakness and a tendency to fall forward climbing up stairs”.
37 The letter to Mr Tange commences:
“This 30-year-old male Sales Rep, right hand married with two
children, injured his back changing a tyre on 17.6.08”.
38 Whether Mr Maartens took the one history, whether he took several, or whether the history taken has its genesis in the presentation at Werribee Mercy Hospital is not clear. The wording differs from that contained in the letter of referral of Dr Crompton. The documents referred to above, whilst tendered on behalf of the plaintiff, are in fact to be found in the Defendant’s Court Book. There is no indication that the plaintiff or his solicitors have obtained any report from Mr Maartens although he was the treating and operating neurosurgeon.
(i) The history obtained by the Sunshine Hospital 39 The plaintiff appears to have been referred to the Sunshine Hospital as part of his rehabilitation. The admission notes contain the following presenting history:
“A 30 y.o. man admitted under rehab unit post L2-3 laminectomy on 26/06/08, done by Dr Maartens. Initially was admitted to Western Hospital on 18.06.08 with low back pain, right foot drop after changing the car tire. He was found to have L2-3 canal stenosis on MRI of lumber(sic) spine”.
(j) The history obtained by Dr Sheriff 40 Whilst there had been earlier correspondence between Mr Maartens and Dr Sheriff, it would appear that the plaintiff first presented to Dr Sheriff on 1 August 2008. In his report of 22 October 2008, Dr Sheriff recorded the following history:
“Mr Jeka is a 30 years old man, on or about 11th June 2008 whilst lifting a box with metal spare parts weighing 20 kg approximately, he felt a sudden twinge in his spine, over the ensuing hours his spinal pain worsened. He thought that this was a soft tissue injury and that it would resolve, but on the contrary he developed typical symptoms of left sided sciatica. He took a few days off and over the weekend he did errand work, but on the following Monday his spinal pain worsened, legs gave way and he collapsed, he had some physio at work and again the following day he felt poor power in his legs and his legs gave way…”.
41 I should add that the taking of “a few days off” does not fit with the plaintiff’s history of events, but, more importantly, it was not suggested by the plaintiff that on the weekend in question he performed any “errand work”. Certainly no evidence was elicited from him to that effect, and indeed he stated that he did not work on the weekend.
42 I would point out that the reference by Dr Sheriff to the plaintiff’s sworn affidavit being consistent with the stated cause of the events is, effectively, meaningless. That is no criticism of Dr Sheriff. No such affidavit was put in evidence. He did not produce any such affidavit. Dr Sheriff agreed that he “must have probably” read an affidavit by the plaintiff in order to make the remark which he did on page 3 of his report. He agreed that he must have been relying upon something prepared “for another purpose”.
43 It would seem from the oral evidence of Dr Sheriff that, when he first saw the plaintiff on 1 August 2008, he did not necessarily obtain the history set out above in relation to the events of 11 June 2008. When cross-examined from his records, he agreed that the plaintiff did not seem to have mentioned anything in relation to 11 June 2008 at his first relevant attendance on 1 August 2008. The incident with the car tyre was recorded, and it is to be remembered that Mr Maartens had forwarded a letter to Dr Sheriff on 26 June 2008 mentioning this. When asked in cross-examination when he first learnt of the incident of 11 June 2008, Dr Sheriff said that it would have been from a history subsequently given to him by the plaintiff. I might say that, earlier in his evidence, Dr Sheriff had referred to an incident “prior to an incident of 11 June”, but he did state that the dates were “a little bit unclear to me” and it is probable that he was a little confused concerning this. As shall be discussed, ultimately his evidence focused upon two incidents, and it seems to me more likely than not that the history in relation to an alleged incident on 11 June 2008 was not given to him at the initial consultation in respect of this injury.
44 Returning to the report of Dr Sheriff, he then referred to the letter of Mr Maartens of 26 June 2008 and to the pre-operative note from the operation record. As previously stated, each of these refer to the incident with the flat tyre as being the cause or commencement of the bilateral leg weakness and paroxysms of back pain. In his conclusion, Dr Sheriff stated:
“He claims a specific incidence(sic) on 11th June 2008 as the precipitating event when his problems commenced. The event of changing the tyre on that weekend wound(sic) have further precipitated his prolapse at L2, L3 on a congenitally narrowed spinal canal.
His sworn affidavit is consistent with his stated cause of the events, leading to his disability requiring decompressive surgery, Mr Jeka has made a steady improvement”.
45 However, those observations must be seen in the context of Dr Sheriff’s oral evidence that the history given to him concerning the incident of 11 June 2008 was not necessarily given to him at the first relevant consultation with the plaintiff and in the context of the absence of the sworn affidavit or evidence as to its contents. All in all, Dr Sheriff’s report and oral evidence as to the history and when it was obtained create some confusion. Refer in particular to pages 68, 69, 72 and 73 of the transcript.
(k) The history obtained by Dr Jayaratne 46 Dr Jayaratne is the rehabilitation physician at the Sunshine Hospital who treated the plaintiff from 1 July 2008 to 17 July 2008. In a brief letter contained in the defendant’s court book, Dr Jayaratne supported the proposition that employment was a contributory factor in relation to the causation of the back injury. He has noted that the plaintiff presented to the Emergency Department (presumably of Werribee Mercy Hospital) on 17 June 2008. The only history noted, and which presumably was relied upon by Dr Jayaratne in forming his opinion as to an employment contribution, was that the plaintiff “had a back injury in June 2008 after changing a car tyre as recorded in the referral letter”.
(l) The history obtained by Dr Wyatt 47 The plaintiff was examined by Dr Mary Wyatt at the request of the defendant and for medico-legal purposes on 29 August 2008. The plaintiff stated that he recalled reaching into the back of his station wagon to get an object out of a box and having a twinge in his low back at that time. He did not take a great deal of notice of the problem and continued to do his normal job. On the following Sunday, he said that he had to change the tyre of his company vehicle, and had increased soreness on standing. He started to get pain radiating into his left leg. The history given thereafter involves the attendance upon the physiotherapist, the falls, the attendance upon the chiropractor and subsequent hospitalisation. It is noted that this history embraces both principal incidents, but that the description of the incident involving reaching into the back of the station wagon is described as involving a twinge of which the plaintiff did not take a great deal of notice and following which he continued to do his normal job. It is also noted that the plaintiff told Dr Wyatt that he started to get pain radiating into his left leg after the changing of the tyre.
48 As previously noted, no report by any medico-legal specialist examining at the request of the plaintiff or his solicitors has been placed in evidence.
The injury suffered
49 I accept the diagnosis of the treating neurosurgeon, Mr Maartens, as set out in the operation record of 26 June 2008. Mr Maartens, in his pre-operative note, stated that:
“An MRI scan of his lumbar spine demonstrated a congenitally narrow canal with a central disc prolapse at L2/3 compression (sic) the cauda equina in both exiting L3 nerve roots.”
50 Essentially this was the diagnosis made. The surgery then took place. The surgery was followed by a prolonged and stormy period of recovery. As Mr Chamings quite accurately conceded in a question to Dr Sheriff, “…this man has had a horrible time with his spine”. The cause of the “horrible time” following the surgery was the central disc prolapse at L2/3. Dr Wyatt also referred to the fact that the plaintiff had significant problems with nerve root compression arising from the back, has referred to the MRI scan, and observed that the plaintiff had bilateral foot drop arising from a disc protrusion.
51 I am not persuaded that the injury was in the nature of a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease. The plaintiff had a congenitally narrowed spinal canal, but, as I understand the evidence, what occurred was then more in the nature of a traumatic incident or event when there was a central disc prolapse at L2/3. The narrowness of the plaintiff’s spinal canal may have complicated matters. It may have predisposed the plaintiff to an injury such as this. However, the evidence does not establish that he had a pre-existing injury or disease or that the prolapse occurred because of some further damage to an already diseased spine or one damaged by previous injury. Accordingly, I am not of the view that ss.82(2C) and 5(1B) of the Act are applicable, and accordingly the plaintiff does not have to establish that the plaintiff’s employment was a significant contributing factor to the injury.
Medical support for various aspects of the assorted histories being causative of work-related injury
52 I have set out the various histories at some length and described the injuries suffered. I now turn to the medical support for the various propositions as to causation. Again, I am doing this because of the somewhat confused picture that emerged. It seems to me that the alleged possible causes that emerged from the histories and from the presentation of the case are four in number. I shall deal with them in turn.
(a) Production of injury by reason of the plaintiff’s general duties 53 The medical support for the proposition that the relevant injury arose out of or in the course of the plaintiff’s employment by reason of his general duties seems to me to be very limited. The chiropractor, Dr Accirito, has stated that the injury that occurred on 11 June was the end result of the combination of sitting in a car for long periods of time, thus compressing the intervertebral discs in the plaintiff’s spine, combined with having to twist, lift and carry articles to and from his work vehicle. An explanation of the mechanics of this follows.
54 Dr Wyatt, who is an occupational physician, has specifically stated as follows:
“We have a good body of medical evidence that suggests that long periods of sitting or driving a car do not increase the risk of disc prolapse and I do not think the long periods of driving are relevant.”
Dr Wyatt went on to state that if there was medical evidence that the plaintiff’s problem predated the episode of changing the tyre, it would not be appropriate to accept the injury as work-related. In her report, she expressed the following opinion:
“The general nature of Mr Jeka’s job requires some manual handling but not substantial, and the general nature of his duties would not be expected to contribute to the substantial condition. The only event that I could see might have contributed would be the changing of the tyre, particularly with an awkward lift.”
55 The very brief report from Dr Jayaratne, rehabilitation physician, does state that employment is a contributing factor in causing the back injury, but this sentence follows immediately after one which reads:
“Mr Jeca (sic) had a back injury in June 2008 after changing a car
tyre as recorded in the referral letter.”
In the absence of any other evidence or explanation, I find it difficult to accept that Dr Jayaratne’s simple statement that employment was a contributory factor in causing the back injury was intended to embrace the course of such employment including associated driving, bending, lifting and the like. Apart from the fact that, in its context, such statement seems to me to be referring to the tyre changing incident, and apart from the fact that his brief report contains no reference to any other incident or duties, the statement seems to me to be far too broad, sweeping and non-specific to warrant the reading into it of an opinion concerning the plaintiff’s normal duties.
56 Mr Maartens has no history of, and expresses no opinion in relation to, the plaintiff’s general duties.
57 The report of Dr Sheriff of 22 October 2008 contains reference to the lifting of the box of spare parts on 11 June 2008 followed by a few days off. Such report also refers to the letter from Mr Maartens and the reference to the repairing of the flat tyre. As previously stated, there is reference to a sworn affidavit being consistent with the stated course of events, but such affidavit was never placed in evidence, rendering Dr Sheriff’s opinion in that regard as effectively meaningless. Dr Sheriff’s oral evidence as to causation seems to have been confined to two incidents against a background of spinal canal stenosis. The situation is further complicated by the fact that, as Dr Sheriff said, the history given to him in relation to the incident of 11 June 2008 was not necessarily a history that was given to him when he saw the plaintiff on 1 August 2008. It was also established in cross-examination that the situation may have been that, on 1 August 2008, Dr Sheriff elicited a history of the car tyre incident, whether that be from the plaintiff or from the letter of Mr Maartens; that the history in relation to 11 June 2008 was given by the plaintiff subsequently; and that he “must have probably read an affidavit by the patient”, agreeing that such affidavit was prepared for some other purpose. Whatever one makes of this, in my opinion Dr Sheriff’s evidence provides effectively no support for the proposition that the injury to the plaintiff’s back arose out of or in the course of his employment by reason of the performance of his general duties.
58 The various hospital reports contain no support for the proposition under consideration. The report of the physiotherapist, including the patient’s self assessment form, contains reference to the plaintiff having pain on the left side for over a week, and to the insidious onset of such pain. It contains reference to such things as not enough movement all day, picking up something or stretching as being activities which aggravate the pain. No opinion is expressed in relation to causation.
59 Thus, in essence the only support for the proposition that the general course and duties of the plaintiff’s employment made a contribution to the relevant injury comes from Dr Accirito, the chiropractor. I prefer the view of Dr Wyatt, occupational physician. Dr Wyatt is well-qualified and has referred to the fact that there is a good body of medical evidence supporting her opinion. I would also point out that she suggested in her report that material and reports be obtained from the plaintiff’s treating general practitioner and from the hospitals involved. Those reports, including the histories obtained, are far more indicative of either or both of the relevant incidents being involved than the general course of employment.
60 In summary, the weight of evidence, however viewed, does not persuade me that the injury arose out of or in the course of the plaintiff’s employment by reason of the general duties in which he was involved and I do not accept the theory that an incident on 11 June was the end result of this.
(b) The incident of 11 June 2008 and/or work performed by the plaintiff in approximately the week prior to 17 June 2008 61 Whilst the plaintiff has ultimately placed considerable reliance upon the incident of 11 June 2008 and whilst it may appear at first an attractive argument that what occurred on that day, clearly in the course of his employment, made some contribution to the injury and to the ultimate surgery, an examination of the medical material reveals that the support for this proposition is limited.
62 I have already referred to the opinion of the chiropractor that the incident of 11 June was effectively the culmination of stresses experienced by the plaintiff throughout the course of employment. As stated, I do not accept this theory. I have already commented upon the doubt that exists as to whether the reference to 11 June 2008 formed part of the history originally taken by Dr Sheriff.
63 Even assuming that the affidavit referred to by Dr Sheriff contains a clear reference to an incident on 11 June 2008, what is contained in his report must be seen in the light of the oral evidence given by him. In that oral evidence, he referred to the fact that he believed that there might have been two incidents. When asked by me if he was saying that two events caused the plaintiff’s injury and surgery, his evidence was as follows:
“Doctor, do you think that there were two events that caused this, is that what you are saying? --- There would have been an initial event which would have caused him some other spinal pain. In a patient that had a spinal canal stenosis he would have had some problem, but specifically I believe the second event would have been the event which would have culminated in – in significance (sic) symptoms he would have developed.
Is that when you think the disc ---? --- would have completely --- would have moved ---? --- (indistinct) out.”
64 As can be seen, at the end of that passage both Dr Sheriff and myself were, to some extent, talking at the same time. My clear recollection is that the word shown as “(indistinct)” was either “moved” or a word of similar meaning I believe it to have been “moved”.
65 Certainly the impression created by Dr Sheriff’s evidence was that it was the second event (the changing of the tyre) which was of particular significance and it was that which caused or coincided with the movement of disc material into the spinal canal. Dr Sheriff’s opinion as to the precise significance of any earlier incident or episode of back pain is not clear. I would refer to the following answer:
“I think those dates were a little bit unclear to me, because the – the letter from the (indistinct) says that 16 June is the date of injury, but I believe there might have been an event where he might have had a problem with his spine prior to that, and – and then there is a specific incident wherein he gave me his view of changing the tyre of the vehicle, and getting some heavy stuff from the back of the vehicle, and that’s when he felt that his pain finally deteriorated to a point that he couldn’t walk.”
66 The plaintiff’s evidence was that problems in relation to his legs giving way commenced after the incident with the tyre. When the totality of his evidence is considered, it seems to me that it was that event on 15 June 2008 which, in the opinion of Dr Sheriff, coincided with the movement of the disc. Some uncertainty as to the precise nature of Dr Sheriff’s opinion remains, but to me the clear impression conveyed was that it was his opinion that the movement of the disc occurred at about the time of the changing of the tyre.
67 There is no other medical support for the proposition that the plaintiff manoeuvring the box of samples in the rear of the station wagon on 11 June 2008 played any role in the occurrence of the injury which resulted in surgery, and this would appear to be for the following basic reasons:
(i) No one other than those referred to above appear to have been given a history of the incident by the plaintiff. (ii) No one else who has treated the plaintiff has been provided with a history of the incident and asked to comment upon it. (iii) No medico-legal opinion, which might have been expected to embrace the various possibilities, has been put into evidence on behalf of the plaintiff. Indeed, the only medico-legal report placed in evidence is that of Dr Wyatt on behalf of the defendant. The history which she has taken is that the plaintiff recalled reaching into the back of his station wagon to get an object out of a box and then having a twinge in his low back, but did not take a great deal of notice of it and continued to do his normal job. The next sentence refers to the changing of the tyre. In that regard, Dr Wyatt states as follows: “The only event that I could see might have contributed would be the changing of the tyre, particularly with an awkward lift.”
In relation to the earlier incident, Dr Wyatt’s report states as follows:
“It is unlikely that reaching into the car, albeit in an awkward position, would have caused the significant problem.”
No oral evidence was required of Dr Wyatt.
68 I appreciate that issues of causation are questions of fact for the “jury” which, in this case, is me. I would refer to the decision in Dahl v Grice [1981] VR 513. However, even when applying common sense and experience, there must be some, or some sufficient, raw material upon which to work. This plaintiff had a congenitally narrow spinal canal, confirmed on MRI, with a central disc prolapse at L2/3 compressing the cauda equina and both exiting L3 nerve roots. Thus, we have an incident occurring some five days before the onset of major symptoms, not recorded in contemporaneous histories and subsequently described as a “twinge”, and with a subsequently contemporaneously recorded incident occurring one day before the onset of major symptoms. It would have been helpful indeed, if not vital, to have some expert medical evidence as to the role of this incident.
69 As the evidence stands, the only comment in relation to this from a legally qualified medical practitioner is that of the general practitioner, Dr Sheriff. His view, as best as I can ascertain, is that the prolapse occurred at or about the time of the second incident, namely the tyre changing on Sunday, 15 June 2008. I am not being critical of Dr Sheriff, who could only give his evidence in accordance with the material available to him.
70 Even bearing in mind the decision in Dahl v Grice, and bearing in mind the evidence (or lack thereof) as set out above, I am not prepared to find that it has been established that the incident of 11 June 2008 was in any way causative of or contributed to the prolapse that required the surgical intervention.
71 The plaintiff’s history as recorded by the physiotherapist, and being the first history recorded, was of pain on the left hand side that had been there for over a week, and of it being of insidious onset for one week. For the reasons set out above in relation to the general duties performed by the plaintiff, and for the reasons to which I have just referred in relation to 11 June 2008, it has not been established that work performed by the plaintiff in approximately the week prior to 16 June 2008 was in any way causative of the ultimate disc prolapse. This is so whether or not it is combined with the alleged incident. Furthermore, I am not of the opinion that the falls sustained by the plaintiff on 16 and 17 June 2008 were causative of any injury or damage. There is no evidence to this effect. The whole history of events strongly suggests that the collapses which occurred when the plaintiff’s legs gave way underneath him were the result, not the cause, of the disc prolapse and there is no evidence that any further damage was done in such collapses.
72 Indeed, as pointed out by Dr Wyatt:
“I do not think the falls he has experienced have caused or contributed to his disc prolapse, more they are as a result of the disc protrusion and weakness in his legs.”
73 This opinion, which fits it with the sequence of events, is one that I accept. Overall, I am not satisfied that the incident of 11 June 2008, assuming that it occurred as described, or the employment related duties in approximately the week before 17 June 2008 (and leaving to one side the tyre changing episode) made any contribution to the injury suffered by the plaintiff, which injury resulted in the surgery and its consequences.
74 I should add that there is no reason for me to doubt but that the incident of 11 June 2008 in fact occurred. It is a question of its significance or its role in the ultimate injury, surgery and disability. The plaintiff freely admitted that, in trying to work out what had happened to him, he thought back over events. When asked in examination-in-chief what prompted him to fill out a compensation claim form, the plaintiff stated that, in hospital, he had been talking to a social worker and said as follows:
“Yeah, advising me if I’d done that and I said I hadn’t, (fill in the claim form) you know, and been speaking to friends and that and they said, yeah, it’s probably a good idea. It’s obviously work related.”
In answer to a question as to why he had written what he had on the claim form, the plaintiff answered as follows:
“Cos at the time I was – I was thinking back of why and where it all happened and couldn’t pin point the exact reasoning maybe – you know, at the time when I felt the twinge was it that, was it this, was it that, it was a cumulative of things, and that’s why I put that there.”
75 As I have said in another decision, a reconstruction does not necessarily mean that the causative conclusion arrived at is erroneous. However, reconstructed accounts of what caused an injury may not possess the same evidentiary strength as contemporaneous accounts.
(c) The tyre changing incident of 15 June 2008 76 As can be seen from the summary of the histories given above, the situation in relation to this incident is somewhat intriguing or perplexing. It is not recorded in the first two histories taken, being those of the physiotherapist and the chiropractor. It is taken at the Emergency Department of the Werribee Mercy Hospital on the evening of 17 June 2008. It appears as being the only or principal stated cause in hospital, surgical and rehabilitation records thereafter. It is also mentioned to Dr Sheriff and Dr Wyatt. Perhaps the plaintiff was in such a state of pain and panic when seeing the physiotherapist and the chiropractor that he simply forgot about it. However, it still seems strange that, particularly in the relation to the visit to the physiotherapist, when there seems to have been both a history taken and completion by the plaintiff of a self assessment form, an incident which had occurred on the previous day and which subsequently featured large in histories was not mentioned. It is also somewhat peculiar that it was not mentioned to the chiropractor whom the plaintiff visited on the evening of 17 June at a time which is not clear. The history given was of a constant, severe low back pain which started the previous week. This is so particularly when the tyre changing was mentioned as effectively the only cause when the plaintiff was admitted to the hospital on that same night, presenting just after 9pm.
77 Whether the plaintiff was in pain, panicking, medicated, unable to concentrate or trying to recall things that might have happened is not altogether clear. He did say in his evidence that he was “freaking out”. The plaintiff gave clear evidence concerning the incident of the tyre changing. I shall assume for the purposes of examining the medical propositions in relation to causation that it occurred as described. Again, when cross-examined in relation to this, the plaintiff admitted to what is in effect considerable reconstruction. He gave evidence as follows:
“I was laying in bed there thinking how did I come to this and trying to put things together and say, okay, was it that, was it this, was it that, was this, and that’s why. It could have been that, could it have been this, could it have been falling down here. It all started from there, changing had aggravated, made it worse.”
78 Again, whilst there may have been some reconstruction, there is no real challenge to the occurrence of the event, but rather the issues relate to its significance and, in particular, whether or not it arose out of or in the course of employment.
79 I have already referred to the evidence given by Dr Sheriff and the fact that he regards the incident as being when the disc would have moved out. The very brief report of Dr Jayaratne appears to support the proposition that this was when the injury occurred. Dr Wyatt has stated as follows:
“If there is supportive evidence that Mr Jeka has reported his problem as developing acutely following changing a tyre, then there would be reasonable grounds to accept this as a contributing factor to his disc prolapse.”
80 The hospital records may have provided the supporting evidence referred to above by Dr Wyatt. The waters are further muddied by the plaintiff’s evidence that the pain which he was in on Monday, 16 June and Tuesday, 17 June was, during parts of that day, effectively no worse than the pain on 11 June. He stated that the pain experienced on 11 June after he lifted the box rated at five or six out of 10 and thereafter it kept going up. It was around about six again on the morning of Sunday, 15 June and then during the changing of the tyre it was still the same. Further, the plaintiff gave evidence that, on 11 June, during the course of the day he started getting some pain behind the kneecap and down the left buttock. He thought to himself, “What’s happening?” He repeated that he thought nothing of it at the time although he did take painkillers. His evidence is that the following day the pain came back and he persisted. On the Friday he was aware of what he called “a pin sharp pain right behind the kneecap” and took painkillers. He described himself as being in pain on Saturday 14 June. This evidence tends to dilute the impact or significance of the evidence supporting the proposition that the plaintiff’s problem developed acutely following the changing of the tyre.
81 Whilst Mr Maartens (and others involved in the plaintiff’s hospitalisation and rehabilitation) seems to have proceeded on the basis that it was the changing of the tyre that precipitated events, the only comment otherwise made by him is to be found in his pre-operative note as follows:
“This 30 year old male presented with paroxysms of back spasms and pain radiating down the left leg posteriorly as far as the knee. This was accompanied by a left sided foot drop. This had been caused by strain during the repair of a flat tyre.”
82 Whether Mr Maartens is there expressing his professional opinion or is simply recounting what he had been told is not altogether clear. As stated several times, no comprehensive report has been obtained from him and the plaintiff has not been examined by an appropriate specialist for medico-legal purposes other than that organised by the defendant and carried out by Dr Wyatt in August 2008.
83 Essentially that leaves me with the opinion of Dr Sheriff and that of Dr Wyatt. Whilst the plaintiff in his evidence has not described his problem as developing acutely following the changing of the tyre – a pre-requisite for Dr Wyatt’s view – it was the causative factor mentioned comparatively contemporaneously. The opinion of Dr Sheriff regarding the significance of the tyre changing incident has already been discussed. In those circumstances it seems to me that, if the plaintiff is to discharge the burden of proof in this matter, his best hope, indeed his only hope, lies in establishing that the tyre changing incident occurred as described, that it arose out of or in the course of his employment and that it has the significance attributed to it by Dr Sheriff and conditionally supported by Dr Wyatt.
(d) The previous motor vehicle accident, old sporting injury and the like 84 True it is that the plaintiff, when filling in the patient self assessment form for the physiotherapist, described the injury as having occurred as “? Old sport/car accident injury”. The history taken by the physiotherapist also refers to “8 years ago problem (indecipherable) back”. The handwritten notes of Dr Accirito contain the following reference: “Soccer player – has had one serious fall – 10 years ago”. The plaintiff’s evidence was that, following the motor vehicle accident, his pain was “more like shoulder pain”.
85 Whilst his evidence in relation to prior problems was not particularly comprehensive and did not fully explain the entry on the self assessment form, I am not persuaded that back problems encountered years previously play any significant role or are of any particular relevance in relation to the subject injury. This was a disc prolapse suffered by a person with a congenitally narrow spinal canal, which prolapse occurred in June 2008. The symptoms of back trouble suffered years earlier do not seem to me to be relevant.
Did the tyre changing incident of 15 June 2008 arise out of in the course of the plaintiff’s employment?
86 As is apparent from the above, I regard the incident of the changing of the tyre on 15 June 2008 to be central to the plaintiff’s prospects of success. I am not satisfied that the burden has been discharged in relation to other potential work-related incidents or activities. As I have found the injury not to be in the nature of an aggravation or the like, the plaintiff does not have to establish that his employment was a significant contributing factor to the injury. However, the burden of proof must be discharged in relation to the issue of whether the injury arose out of or in the course of his employment. The next question for determination then becomes whether the incident as described, and assuming that it took place, was one that was sufficiently employment- related so as to enable me to say that the injury arose out of or in the course of employment.
87 The factual findings in relation to this issue are as follows:
(i)
As previously stated in paragraphs 7 and 8 above, it was a term of the plaintiff’s employment that he be supplied with a fully maintained company vehicle, and the nature of his employment was such that he did a lot of driving, particularly throughout eastern Victoria.
(ii)
The vehicle in question was a Ford station wagon. There is no evidence to suggest that there was anything in particular about the vehicle which added to the risk of a person using it receiving the type of injury suffered by the plaintiff. For example, it is not suggested that the vehicle had extra large and heavy tyres necessitated by the type of work-related driving involved. This does not seem to me to be a situation of the type which arose in Smith v Australian Woollen Mills Limited (1933) 50 CLR 504. The injury which the plaintiff suffered was not determined by the fact that he was at work and that his work brought him into proximity with a particular structure capable of inflicting the injury, a structure which was not part of the ordinary surroundings of daily life but was part of the equipment of the employer’s manufacturing premises, and was distinctively industrial. The injury was not brought about because of the existence, configuration and situation of the particular piece of equipment and the plaintiff’s presence near it. As was said in Smith at p515:
“If the workman’s fall brings him into contact with something which, like plant or machinery, is peculiar to the work or occupation, and is not common both to industrial and private life, then the reason for his suffering includes the important circumstance that but for the particular piece of work which he was in fact performing he would not have experienced that particular sort of injury.”
There does not seem to me to be that exposure to addition risk referred to in decisions such as O’Brien v Commonwealth of Australia (1967) 117 CLR 66.
In other words, I find that there is no evidence suggesting that any form of additional work-related risk attached to the use of the vehicle in question.
(iii) The plaintiff could use the company vehicle for personal purposes as well as for employment related matters. A fuel card was supplied, but as to whether this could be used in order to purchase petrol on a weekend for private purposes, the plaintiff gave the following evidence:
“I was permitted to use the company car, yeah, at any time I wanted and at the time what I used to do when I used to use it – personal reasons – I used to put me own fuel in it – well it was on gas, so I used to put me own gas in it, so - - - ”
“What about on the weekend, could you use your fuel
card, or - - -?---Sometimes - - -- - - did you pay for it out of your pocket?---Sometimes you could. Usually – you know, if it was empty you’d fill it up on the Friday – that was the trick – you know, with all the reps that you’d fill it up on a Friday and you sort of had enough gas to go over the weekend, and lasted till you – you know, till you go to your next fill-up. I tried to do the right thing, so – didn’t want to do the wrong thing and put my own fuel in it at the end of the day, so – do the right thing, you know, they give you something.”
The impression created by this evidence was that the fuel card was not provided for the purpose of fuel purchases on the weekend and that the plaintiff, quite admirably, considered that to do so was to do “the wrong thing”.
(iv) There is no satisfactory evidence that the plaintiff used the vehicle for employment purposes on a weekend either regularly or at all. In his closing address, Mr Hangay submitted that the plaintiff had to have his car with him on a weekend, he may have to make calls on customers, he may have to drive to the office to do paperwork and the like. When I asked him what was the evidence of that as I could recall no evidence in that regard, Mr Hangay agreed that there was not any. No evidence of any substance was elicited from the plaintiff in evidence-in-chief to the effect that he ever did weekend work which involved the use of the car. The nearest the evidence came to any suggestion of weekend work was in cross-examination and was as follows:
“Did you tell her that you had to run some errands over the weekend? --- I don’t know if I errands (sic). The only time I tend to do errands is when I had to drop stuff off to the manager that lived two units away from us.
Would you be doing that over the weekend? --- Yeah,
from time to time I would, yes.”
There is no suggestion that this involved the use of the car, the response that the manager lived two units away seeming to be an indication to the contrary. There was no re-examination concerning this. It may be that there were times when the plaintiff brought home in the vehicle material to be dropped off with the manager, but this seems to me to be a different concept from using the car for weekend work or being on call in the event of having to do so.
(v) Similarly, there is no persuasive evidence that the plaintiff was using the company car for work-related matters on the weekend of 14-15 June 2008. The following is contained in the report of Dr Sheriff of 22 October 2008, after a reference to the alleged incident of 11 June 2008:
“He took a few days off and over the weekend he did errand work, but on the following Monday his spinal pain worsened…”
In cross-examination, the plaintiff did not agree that he took any days off work after 11 June and before 15 June. No further evidence in relation to the errands was obtained from him in evidence-in-chief or re- examination. His evidence in relation to the errands given in cross- examination has been set out above. In this regard, a further question was put to him by Mr Chamings, and the impression conveyed was that this question was intended to be directed to errands on the weekend in question. That might or might not be so. In any event, Mr Chamings then only got as far as the words “Were you on the ---” before the plaintiff stated as follows:
“I can’t remember, no, I can’t remember. I can’t remember
seeing a doctor ---”.
The subject of what was contained in his notes in this regard was not raised with Dr Sheriff. Obviously evidence that the plaintiff used the company vehicle for weekend work and, in particular, did so on the weekend in question would have the potential to be of relevance, if not importance. However, other than what has been set out above, no such evidence was forthcoming from the plaintiff. In relation to possible work on the particular weekend in question, I would also refer to the following question and answer from evidence-in-chief:
“What about the weekend, did you work the weekend? ---
No, no, not that weekend.”
Whilst the last part of that answer might suggest that there were weekends when the plaintiff did work, the matter was not taken further and it seems to me that, in the absence of other evidence, that to draw an inference that the answer meant that the plaintiff sometimes worked on weekends and used the company car for that purpose is simply not open. The plaintiff’s evidence concerning the use of the fuel card would tend to support the proposition that his vehicle was not normally used for weekend work.
(vi) What the plaintiff did on Saturday, 14 June is not clear. There is certainly no persuasive evidence that he worked, despite the reference to the errands in the report of Dr Sheriff, which report also contains an erroneous history in relation to the plaintiff not working in the preceding days. There is no clear evidence as to what the plaintiff in fact did.
(vii) In relation to Sunday, 15 June 2008, there is again no persuasive evidence that the plaintiff did any work or used the car for any work- related purpose. His own evidence would appear to be to the contrary. What I do accept is that, on that day, he took his children to watch a game of soccer at St Albans. They watched the game, and when he returned to the vehicle, which had been parked on gravel adjacent to the ground, he noticed that the front tyre on the driver’s side was flat. He changed the tyre. He noticed that there was a nail or a large pin in the tyre. The plaintiff was uncertain when that was picked up.
“I’m not too sure when I could’ve picked it up, driving on the Friday, Saturday, or Sunday. Who knows, it could have been a slow leak and – just went…”
(viii) The plaintiff changed the tyre himself. His employer had no roadside assistance. The company car was the only one the plaintiff had, and, although there was roadside assistance available in relation to his wife’s car, it did not cover the situation. Therefore he changed the tyre himself.
(ix) The plaintiff gave evidence that, had he rung the manager, he would have been told to change the tyre himself, so “nine times out of 10 you’ve got to change it”.
(x) The plaintiff stated that he had “a little bit of pain” prior to changing the tyre, and also described pains in his leg. He described how he had to crouch down and how it was both tough and hard doing what he did. He described it as “pretty painful” getting back up. There was no challenge to this evidence and I accept it.
(xi) The plaintiff and his children then drove towards their home, but stopped at a local park where the children fed the ducks. They then went home, where the plaintiff sat down, and, when he got up, he described his condition as follows:
“…I was in a bit of pain, the left leg was shooting, you know, that was hurting, behind my kneecaps, I was burning, like a tearing sensation, it felt painful, so I took another tablet and tried to fix myself up. I kept on going and that night went to bed, woke up, felt good the next morning.”
The plaintiff had described an earlier sharp pain behind the kneecap on 11 June and 13 June, but it must be said that the pain he described on the evening of the tyre changing incident sounds more graphic.
88 In light of the above, I must determine whether or not the plaintiff suffered injury arising out of or in the course of his employment. Counsel were not able to direct me to any cases precisely on point. Mr Hangay brought my attention to my own decisions in the cases of Michaels v Victorian WorkCover Authority [2008] VCC 928 and the old Accident Compensation Tribunal case of Gunn v Accident Compensation Commission (Wimmera Super-Meat Market) (delivered 15 February 1990). Although in each there are references to useful extracts from decisions of superior courts, there seem to me to be marked factual distinctions between those cases and the present case. In Michaels there was no argument but that, at the time that he suffered injury, the plaintiff was engaged in an activity which had some connection with his employment, and the question of whether or not his contract of employment had in fact commenced loomed large. The plaintiff, when injured, was looking through text books which he might use in the course of his employment as a lecturer. This fact was not disputed. In Gunn, the facts involved an apprentice butcher lacerating his arm at home whilst sharpening his employer’s knives in anticipation of a fortnightly assessment of the sharpness and cleanliness of these. It was not as if Mr Michaels was using his time in the bookstore to look at texts relating to, say, gardening which bore no relationship to the topics on which he would lecture pursuant to his contract of employment. Equally, it is not as if Mr Gunn was using his employer’s knives to carve the Sunday roast for his family when he lacerated himself. In each instance, the activity in which the injured person was engaged at the relevant time was one directly related to the requirements of his employment.
89 In the present case the plaintiff was engaged in a purely social and personal activity. No matter how the situation is viewed, there was no connection between the trip to the soccer match and the employment. I reject the speculative submission of Mr Hangay that the nail or pin which caused the puncture might have entered the tyre whilst the plaintiff was driving in the course of his employment. There is simply no evidence to support that proposition or its likelihood. Indeed, given that the plaintiff’s own evidence is that, prior to the puncture, he had not worked for two days, the likelihood is to the contrary. In any event, it is, as I have said, sheer speculation that the cause of the flat tyre arose during the course of employment.
90 It seems to me that the high watermark in relation to evidence supporting the plaintiff’s position must be as follows. The car was a company car. It was used by the plaintiff in the course of his employment as he travelled around effecting sales. During the working week he was expected to do such driving. He needed the car to be available on Monday, 16 June, and his employer would have expected this of him. Therefore the flat tyre had to be changed before Monday, 16 June. The plaintiff did so. This was required by reason of his employment, was incidental to it and arose out of or in the course of it.
91 The issue then is whether such summation is correct in that the necessary employment link has been established. As was submitted by Mr Chamings, in the Court of Appeal decision concerning Michaels, the Court referred to the decision in Fitzgerald v Ainsby Rubber Co [1987] VR 437, and stated as follows:
“The question whether the activity of the employee at the time of the injury is sufficiently connected with the employment is a question of fact which remains ‘a matter of degree, in which time, place and circumstances, as well as practise must be considered together with the conditions of the employment’.”
92 The Court of Appeal also stated the following in Michaels:
“We have mentioned that the fundamental requirement of the expression in question is that there be a relationship between the activity engaged in at the time of injury and the work which the employee was engaged to perform – the activity must be incidental to performance of this work. In this case, the judge found that the applicant at the time of the injury was in the bookshop looking for accounting textbooks related to the course he was to teach in China. This finding was not challenged.”
93 As was said in Park v Peach [1967] VR 558:
“In every case it is a question of fact whether the activity in which the worker is engaged at the relevant time was sufficiently connected with his employment as to warrant the conclusion that he was in the course of his employment. The remoteness or otherwise of the activity from his employment becomes a matter of degree.”
94 Further, as was said by Sir Owen Dixon in Humphrey Earl v Speechley (1951) 84 CLR 126:
“The question is whether the course adopted by the employee was reasonably incidental to the performance on that occasion of his duties.”
95 In Humphrey Earl the injured worker was employed as a service mechanic and salesman. His work involved the sale and servicing of items such as bacon cutters and scales. It was part of his duty to sell, install, repair and service such items, which were supplied by his employer. He was also supplied with a motorcycle with a side box attached, this also being supplied by and remaining the property of the employer. On the occasion of sustaining injury, the worker proceeded to a shop, dismantled a bacon cutter and performed certain work upon it. He ceased the task which he was performing, and he and the shop proprietor then went for lunch. In so doing, they used the motorcycle and proceeded, ultimately, to a fish shop a couple of suburbs away in order to obtain some hot fish. They then set off to return to the shop, the purpose of the worker being either to perform further work or to collect his tools. On the return journey the motorcycle was involved in an accident and the worker was injured. There had been a finding that the sole purpose of the trip was so that the injured worker could partake of a particular type of lunch which he preferred, that being hot fish. The High Court, allowing the employer’s appeal, found that, when he was injured, the worker was engaged on a venture of his own and not on the business of his employer, and accordingly the injury suffered did not arise during or in the course of his employment.
96 I would refer to the following extracts from the Judgment of Dixon J:
“His use of the motorcycle so long as it was confined for the purposes of his duties was undeniably within the course of the employment. The acts of a workman which form part of his services to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which was reasonably required, expected or authorised to do in order to carry out his duties…”
“No one denies that when the duties of the present respondent took him to the shop of one of the appellant’s customers and kept him there over a meal time any course which he adopted for the purpose of obtaining lunch, provided that it was reasonably related to the exigency occasioned by his duties, might be considered to be in the course of his employment. But to make what he did in connection with obtaining lunch part of the course of his employment it is necessary that it should be reasonably connected with the particular situation which the performance of his duty to his employer had created. In other words, when he ceased work for lunch and left the scene of his labours, what he did could not fall within the course of his employment unless it was a reasonable consequence of the circumstances in which he was placed through the performance of his duties.”
“The question is whether the course adopted by the employee was reasonably incidental to the performance on that occasion of his duties…If he so far deviates from what is reasonably incident to the execution of his duties as to proceed on a purpose of his own not fairly resulting from the nature or incidents of employment, that purpose cannot be considered in the course of the employment. There is a great difference between, on the one hand, the worker’s taking advantage of an allowable interval for lunch in order to make it the occasion of an excursion for his own purposes and on the other hand his acting in a way which is reasonably calculated to fulfil the purposes of his employment and at the same time provide for his own reasonable wants. Such questions must involve matters of degree, but it does not follow that their decision is always a question of fact open in point of law to a finding either way. Even in a matter of degree the facts may show so great a departure from what is an allowable incident of the employment that it is not open to a court to make any but one finding.” (My underlining)
97 I would also refer to the following observations of McTiernan J:
“The driving was from the beginning until it ended in the accident, in the course of an excursion which was entirely beyond the scope of the respondent’s employment…The facts which are stated in the case to be proved or admitted are, in my opinion, insufficient in law to establish the connection between the injury and the employment connoted by the words ‘in the course of the employment’. The facts rather support the conclusion that the injury was received during the period of an interruption in the day’s work which the respondent made for purposes personal to him…and having no true connection with the respondent’s employment.”
98 The test in this regard was to some extent reformulated in the decision of the High Court in Hatzimanolis v A.N.I. Corporation Ltd (1992) 173 CLR 973. Whilst that case, like many in this area, dealt more with workers living in remote locations or suffering injuries during intervals in the working day (and as to what constituted the working day for those in remote locations), the following observations of the joint Judgment of four of the members of the court are of assistance:
“Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must also be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen’ (the quotation to which reference has just been made is from Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529).”
99 In Park v Peach the driver of a cab was returning the vehicle to its owner, namely, the employer. On the way, he stopped the car and crossed the road in order to purchase a newspaper. When re-crossing the roadway, he was struck and killed. It was found to be open to the Workers Compensation Board to have found that the deceased worker was in the course of his employment when the fatal accident occurred. Winneke CJ and Starke J, who together with Adam J constituted the Bench of the Full Court of the Supreme Court of Victoria, delivered a joint Judgment. I would refer to the following extracts:
“In our view, the action of the deceased in leaving the taxi and purchasing the paper was not, in the circumstances of the particular employment as found by the Board, so intrinsically different in character from an act of leaving the taxi to have a meal or to answer a call of nature…as to require the Board to hold that it was, as Dixon J expressed in the decision abovementioned (Commonwealth v Oliver (1962) 107 CLR 353) ‘so great a departure from what is an allowable incident of the employment’ that it was not incidental to the course of the employment.
It seems to us that the deceased in temporarily leaving the taxi to purchase the paper was exercising the privilege or making use of an amenity which in this day and age may fairly and properly be regarded as belonging to the particular employment in which he was engaged. It would, for instance, have been an entirely different matter if the deceased, having finished his work for the day, drove the taxi down the street simply to buy a paper for his own use, and had then been injured. Such a journey could not have been said to be in any sense in fulfilment of the purposes of his employment.”
100 Other observations of interest are as follows:
“In our view, it is not decisive that at the critical time the deceased happened to be serving some purpose or satisfying some want of his own…” (their Honours then went on to refer to much of the extract from Humphrey Earl set out above)
“Moreover, we are of the opinion that the consent or permission by the employer of the particular activity upon which the employee is engaged at the time of the injury is a relevant and important, although not by itself a decisive, consideration…The presence of such consent or permission may, we think, constitute a circumstance tending to prove that at the critical time the worker was doing something contemplated by his contract or employment and therefore incidental to the end his work is designed to serve.”
101 Adam J, in a separate Judgment, stated as follows:
“In every case it is a question of fact whether the activity in which the worker is engaged at the relevant time was sufficiently connected with his employment as to warrant the conclusion that he was in the course of his employment. The remoteness or otherwise of the activity from his employment becomes a matter of degree.”
102 In the present case, the whole excursion in which the plaintiff engaged on Sunday, 15 June 2008 was for personal reasons, and, to use the terminology employed in Park v Peach “could not have been said to be in any sense in fulfilment of the purposes of his employment”. It was an excursion entirely beyond the scope of his employment. The only aspect which arguably could be in fulfilment of the purposes of employment is the changing of the tyre. The plaintiff’s evidence was that, if he had rung up the manager “he would have turned around and said to me, ‘well change it’, so nine times out of 10 you’ve got to change it. If you get a flat you’ve got to change the tyre”. Whether this was based on actual instructions from the manger of the defendant, or whether it is the plaintiff’s opinion as to what would have happened, is not entirely clear. It is also not readily apparent as to whether this was the attitude of management regardless of whether the flat tyre occurred during the working week or on the weekend, but it seems to me that this was what the plaintiff may have been trying to convey.
103 Many of the authorities referred to above and the tests involved are referred to in the Judgment of Southwood J in Clarke v Waylexson Pty Ltd [2009] NTSC 19, being a decision of the Supreme Court of the Northern Territory. His Honour’s Judgment is, with respect, a useful summation of some of the leading cases in this area.
104 I could find no case, and counsel could not direct me to one, in which the facts precisely paralleled what has occurred in the present claim. Perhaps the closest resemblance lies in Humphrey Earl. In that case the company vehicle was, during an interval, being used an employee for a purpose unrelated to employment. Even then there are distinctions. In the present case there was no simple accident, but effectively a repair of the vehicle in circumstances otherwise unrelated to employment and so as to render it serviceable.
105 The bottom line is that the issue is a question of fact contingent upon a matter of degree, in which time, place and circumstances, as well as practice, must be considered, together with the conditions of the employment. As was said in Park v Peach, the remoteness or otherwise of the activity from the employment becomes a matter of degree. Has there has been so great a departure from what is an allowable incident of the employment as to render what occurred not incidental to the course of employment? As was said in Hatzimanolis, regard must be had to the general nature, terms and circumstances of the employment. In the present case, the car was a company vehicle used by the plaintiff in the course of his employment; in the event of a flat tyre or the like, there was no roadside assistance available; and the plaintiff believed that he would have been told to change the tyre himself. Those factors effectively represent the limits of the connection with employment. As previously stated, I do not find that there was anything in particular about the vehicle which created some additional risk of injury so as to lead to a finding that what occurred arose out of the employment.
106 On the other hand, the plaintiff was entitled to, and did, use the car for private purposes and, personally, had no other vehicle. He gave evidence that he sometimes put fuel in the car in relation to weekend use, saying that he “used to put me own fuel in it – well it was on gas, so I used to put me own gas in it” and also saying that he “tried to do the right thing, so – didn’t want to do the wrong thing and put my own fuel in it at the end of the day”. In other words, he would, at least at times, pay for the fuel for weekend use, believing that this would be doing the right thing by his employer. The outing on Sunday 15 June 2008 had no connection with his employment whatsoever. As the plaintiff stated in his evidence:
“And we drove down there and – went there and – yeah, watched the game with the kids and when I come back to the car I noticed I had a flat tyre, so what I had to do – I had the kids with me – I looked at it, thought, ‘well, I’ll have to change’, so I changed the tyre and – yeah.”
107 Having changed the tyre the plaintiff got back in the car, drove towards home and stopped at a local park so that his children could look at and feed the ducks.
108 Having considered the authorities and reviewed the facts, I am of the opinion that the connection with employment is simply too remote to permit a finding that what occurred arose out of or in the course of the plaintiff’s employment with the defendant. The facts show so great a departure from what is an allowable incident of the employment, and the connection with employment is so remote, that I do not find that what occurred arose out of or in the course of employment. To use the wording of McTiernan J in Humphrey Earl v Speechley, what occurred had no true connection with the plaintiff’s employment. Again, employing the wording used in Hatzimanolis, the nature, terms and circumstances of the plaintiff’s employment do not extend to cover the circumstances of this incident. Let us suppose that, on the way to the soccer, the plaintiff noticed that the car needed fuel. He stopped at a service station with the intention of purchasing fuel and paying for it out of his own pocket, as he stated that he did at least sometimes in relation to personal or weekend use. Let us assume that he was injured whilst so doing. It may be that some of that fuel would have been consumed in the course of the plaintiff visiting customers the following day. However, the primary purpose was to enable him to take his children to the soccer. Bearing in mind that these things are a matter of degree, the connection with the course of employment in such a situation would seem to me to be slender indeed. Much the same could be said in relation to what actually occurred. The plaintiff was on a social outing and needed to change the tyre in order to take his children home. Of course, the tyre, once changed, would enable the plaintiff to carry out his work duties on the following day. However, the necessary link with employment does not seem to me to have been made out.
109 Further, the evidence that the plaintiff regularly, or at all, used the car for weekend work, or that he did errand work which involved it, is simply not there. Indeed, the fact that he was in some way on call, or that he did weekend work involving the car, has not been established to my satisfaction.
110 In summary, I find that the incident involving the changing of the tyre on 15 June 2008 did not arise out of or in the course of the plaintiff’s employment with the defendant.
111 Further, whilst essentially I accept that the tyre changing incident occurred and that, on balance, this was when the disc prolapse took place, the evidence has been confusing as to the significance of the incident. As stated, the incident was not even mentioned to the physiotherapist and the chiropractor. As previously stated, the issue of the significance of the tyre changing incident is then further clouded by the plaintiff’s own evidence. On balance, I am satisfied that the incident occurred even if the histories at first obtained make no reference to it. Some doubt surrounds its significance, although, viewing the evidence as a whole, I have concluded that this is when the disc prolapse occurred. What I do not find is that the incident arose out of or in the course of the plaintiff’s employment. I find that it did not.
Conclusion
112 Once it is found that the tyre changing incident of 15 June 2008 did not arise out of or in the course of the plaintiff’s employment with the defendant, for the reasons previously stated it seems to me that the plaintiff has failed to discharge the burden of proof. I have already commented upon the absence of specialist opinion relating to the possible involvement of the general course of employment or of the incident of 11 June 2008 and any sequelae. I have commented upon the evidentiary difficulties generally in relation to these possible causes of the prolapse. At the conclusion of the plaintiff’s case, and indeed after the closing address on his behalf, I raised the question of causation, the adequacy of medical material and the burden of proof – see transcript pages 59 and following. It was foreshadowed that there might be a possible adjournment in relation to medical evidence. What in fact ensued was that leave was given to the plaintiff to reopen his case and the evidence of Dr Sheriff, the plaintiff’s general practitioner, was taken, following which the plaintiff’s case was again closed. That evidence, which has been discussed, was not sufficient to discharge the burden of proof in relation to the involvement of either general work duties or duties performed by the plaintiff in his last working week, including 11 June. The decision to call only Dr Sheriff (and it is no criticism of him) and then close the case again did come as something of a surprise.
113 I have sympathy for the plaintiff, who has been through a lot, but that is doubtless of scant consolation to him. However, based upon the evidence presented to me, it seems to me that the burden of proof has not been discharged. The case is dismissed accordingly and I shall hear the parties as to any ancillary orders that are required.
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