Kovacic v Henley Arch Pty Ltd
[2010] VCC 571
•1 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-06-03799
| PERO KOVACIC | Plaintiff |
| v | |
| HENLEY ARCH PTY LTD (ACN 007 316 | Defendant |
| 930) |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 and 27 April 2010 |
| DATE OF JUDGMENT: | 1 June 2010 |
| CASE MAY BE CITED AS: | Kovacic v Henley Arch Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0571 |
REASONS FOR JUDGMENT
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Catchwords: Accident compensation – discrete issue – whether the plaintiff suffered compensable injury on or about 25 November 2003 in the course of his employment with the defendant.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with | Zaparas Lawyers |
| Ms K A Galpin | ||
| For the Defendant | Mr J Ruskin QC with | Wisewoulds Lawyers |
| Mr R N Annesley | ||
| HER HONOUR: |
1 This application relates to a discrete issue, that is, whether Mr Pero Kovacic sustained injury to his low back in a lifting incident on or about 25 November 2003.
2 These proceedings have a long history. An application was heard before His Honour Judge Morrow for leave under s.134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to bring a proceeding for damages in respect of injury to a low back sustained whilst working for the defendant, Henley Arch Pty Ltd (Henley), on or about 25 November 2003.The learned judge dismissed his application.[1]
[1] [2008] VCC 325
3 Judge Morrow held that the plaintiff was not a worker in the primary sense. However he was satisfied that he was a worker in the extended sense in reliance upon the combined effect of s.8 and paragraph (b) of definition of worker in s.5. His Honour went on to find that he was not satisfied that the plaintiff has suffered injury following a lifting incident on 25 November 2003.
4 In Kovacic v Henley Arch Pty Ltd [2009] VSCA 56 the finding of the primary Judge was not disturbed, that is, the plaintiff was held to be a worker in the extended sense however the matter was remitted back for hearing before this Court to determine the issue to which I have earlier referred.
5 Thereafter the proceeding was the subject of a special leave application in the High Court. Leave was initially granted and subsequently revoked.
6 At the hearing of this matter Mr Kovacic and his sons, Goran, Zoran and Djordge Kovacic gave vive voce evidence and were cross-examined and re- examined. The parties further relied upon documentation set out in the schedule attached to these Reasons for Judgment.
7 At the time of the claimed injury Mr Kovacic worked as a bricklayer as part of a bricklaying team with his sons, Goran and Zoran and his son-in-law, Nenad Ostojic for Henley Arch Pty Ltd (Henley). Henley is in the business of designing, constructing and selling one and two-storey houses. The employment period was from approximately July 2002 until July 2004.
8 Mr Kovacic’s evidence is that he injured his low back on 25 November 2003 as a consequence of a lifting incident. A steel lintel weighing approximately 250 kilograms had been delivered to the work site and had to be moved into position on top of two brick piers of a garage that was being constructed. As he was performing the task of manoeuvring the lintel with the assistance of Goran, Zoran and Nenad he became aware of a sudden sharp pain in his low back which spread into his left buttock and into the top part of his left leg down to the knee. He had had occasional low back pain in the past which had lasted for a day or two and then resolved, but nothing like this pain, which spread into his left leg.[2]
[2] Paragraph 4, Plainitff’s affidavit PCB 9
9 It is not in dispute between the parties that the plaintiff suffered a back injury as a consequence of the heavy work with the defendant. What is in dispute was whether the court is satisfied, on the balance of probabilities, that the plaintiff suffered compensable injury on or about 25 November 2003 lifting or moving a heavy lintel.
10 If a finding is made that the plaintiff suffered compensable injury whilst lifting a heavy lintel on or about 25 November 2003, the defendant, having abandoned its contention in the Court of Appeal that any injury sustained was not a serious injury both in its pain and suffering and economic loss consequences, leave should be granted to the plaintiff to commence proceedings under the Act at common law.
11 The plaintiff adopted as his evidence-in-chief, the affidavits which he has filed and then he was cross-examined and re-examined. His spoken English is poor and he has sworn all his affidavits through a professional interpreter. He gave his evidence through a professional interpreter and at all times appeared to provide responsive answers.
12 It is necessary to go into some detail in relation to his background. Mr Kovacic was born on 24 October 1957 and is 52 years old. He is a bricklayer by trade. He was born in Croatia and learnt his trade there. After leaving trade school he went into the army for 15 months. Thereafter, he worked as a bricklayer until the war broke out. He lived in a minority Serbian area and was interned in a camp for 15 months. He moved to Serbia as a refugee and stayed in United Nations’ refugee camps until he was able to come to Australia with his wife and family on 8 November 2000. He commenced an English course upon his arrival in Australia. He attended for three months. He found that difficult and decided to look for work and leave the course.[3]
[3] Affidavit of plaintiff 15 May 2006, PCB 7 and 8 paragraphs 1 & 3
13 It is apparent that Mr Kovacic has only very elementary English skills and that he has relied heavily upon the services of various family members to act as his interpreter for him in the work situation and when attending doctors. Because he worked with family members he did not have the opportunity to practise or improve his spoken English.
14 Mr Kovacic was emphatic that he injured himself in the manner claimed on 25 November 2003. The plaintiff’s evidence was that previously he had been in good health and that he did suffer back pain from time to time but never pain for which he had treatment. That evidence was not contested and is consistent with his work history.
15 Mr Ruskin QC, on behalf of the defendant urged the court to make a finding that the plaintiff did not injure himself in the manner claimed. He relied on a number of matters. Overall, I have come to the conclusion that none of them provides any persuasive reason for not finding in favour of the plaintiff’s application. Mr Kovacic’s credibility is critical in making my determination. The reliability of his evidence must be judged against the totality of the evidence.
16 There was one aspect of his evidence that caused me some disquiet. Mr Tobin, SC accepted that there had been an attack which has some weight in relation to the plaintiff’s credit relating to the obtaining of finance.
17 The plaintiff explained that he had been to see an agent who had prepared material on his behalf to obtain loans from the National Australia Bank. The documents filed in support of the loan application include a letter confirming (falsely) that Zoran, his son, is his employer.[4]
[4] PCB 363
18 Mr Kovacic’s explanation was that he did not fill in the information and that he was asked to sign and he did sign blank forms. He said he never discussed with his son Zoran about using his name as his employer and that he had no idea that Zoran was said to be his employer. Mr Ruskin submitted that such a proposition was incredible.
19 Having carefully reviewed both Mr Kovacic’s evidence and Zoran’s evidence concerning this aspect I am not prepared to make a finding rejecting Mr Kovacic’s explanation. It is clear that his son, Zoran was aware the statement was false however there is insufficient evidence from which I could draw the inference that Mr Kovacic knew that false information was being provided to the bank in support of the loan applications.
20 I have had regard to the fact that the plaintiff is a man who has very little English and was reliant on relatives to assist him in interpreting and that he did not have the capacity to be able to read and properly understand documentation. I am not prepared to make any adverse findings in relation to that aspect. Indeed, he was very frank and accepted that those documents were filed on his behalf. Overall Mr Kovacic impressed me as being genuine and essentially, I regard his evidence as being honest, reliable and credible.
21 The thrust of Mr Ruskin’s submissions were that there was no contemporaneous notation documenting the claimed incident.
22 It is clear that the plaintiff failed to mention the specific injury on the WorkCover claim form that was completed and signed by him on or about 9 August 2004.
23 In the form the plaintiff confirmed that he suffered injury to his spine including low back and legs during his employment with Henley. However, there is no reference to the circumstances of the injury occurring on the claimed date.
24 In response to the question “what happened that caused or contributed to the injury or condition?”, the answer recorded is “rapid repetitive and heavy work”.[5] Further, in answer to the question “where did the injury occur?” the answer recorded “various job sites, Hoppers Crossing and Werribee”.
[5] DCB 181
25 On its face, therefore, the worker’s claim form does not in any way advance the plaintiff’s case in respect of a specific injury occurring on a specific date.
26 When cross-examined, the plaintiff confirmed that the form was signed by him on 9 August 2004 at the chambers of his then lawyer, a person by the name of Robinson.[6] He further confirmed that he did not fill in the form himself and that on that occasion his daughter, Zoranka, translated. She was aged 22. She spoke both English and Serbian but her English was rather weak.[7]
[6] T 13, L7-9
[7] T 14, L18
27 When asked by Mr Ruskin, “when you were asked that question by the solicitor ‘what caused your injury?’ you didn’t tell the solicitor anything about the lintel did you?” He answered “when he asked me what happened to me I said – he asked me did I lift some weight or something, I told him I was lifting the lintel, he didn’t ask me what kind of steel or iron. Didn’t ask anything.”[8]
[8] T 14, L23-29
28 In response to a further question Mr Kovocic stated he did tell the solicitor that he injured himself when he was lifting a heavy iron or steel[9].
[9] T 14, L30-31
29 Given the plaintiff’s known difficulties with spoken and written English and the reliance on a non professional interpreter when completing the form I do not consider the omission to properly record the details of the specific incident is fatal. As will be seen there is other independent evidence that supports a finding that he suffered the claimed injury in a specific lifting incident.
30 Mr Ruskin submitted that on the basis of the histories recorded by the various doctors the Court ought not to be satisfied on the balance of probabilities that the plaintiff did injure himself in the manner claimed.
31 I am not prepared to make that finding. I have had regard to the disadvantage Mr Kovacic suffered by reference to the fact that his spoken English is poor and that he always required the assistance of an interpreter when analysing this evidence. On most occasions when seen by the treating doctors Mr Kovacic had young relatives interpreting on his behalf. I shall deal with each of those doctors and their records.
32 On 25 November 2003 Mr Kovacic attended Dr Amirogol, a general practitioner, in relation to his back injury. His god-daughter, Luba, accompanied him to act as an interpreter. Luba, was born in 1985 and she was able to speak English better than the plaintiff. He said the doctor spoke English. He said in response to cross-examination that he did not know English, just Serbian. He does not speak any English, only a few words now, but it is passive.[10]
[10] T 16, L1, 2 and 3
33 The plaintiff’s evidence was that when Dr Amirogol examined him he complained of pain in the back and the left buttock. He told the doctor that he had injured himself when lifting.[11] He was asked by the doctor what he did for work and he said he told him that he was a bricklayer, that he laid bricks.[12] The plaintiff stated that the doctor did not specifically ask him when he injured himself or what he did at that moment.[13]
[11] T 16, L22
[12] T 16, L21-24
[13] T 16, L23-24
34 Mr Ruskin asked “yes, are you sure he didn’t say ‘look, how did you hurt yourself’, do you think he asked you that?” He answered, “I said yes, I lifted something heavy. I said we were lifting steel and he asked me, ‘what’s that?’, then he added he was not sure whether the girl (Luba) translated it correctly or not.[14]
[14] T 16, L25-30
35 When asked by Mr Ruskin “what I want to suggest to you is that you didn’t say that at all. I want to suggest to you that when you were asked how you hurt yourself you answered by just that you had long-term trouble with your lower back, is that correct?” He answered, “I did not say that”.[15]
[15] T17, L14-18
36 An extract from Dr Amirogol’s clinical notes dated 25 November 2003 were tendered.[16] He records the following entry:
“Long-term lower back pain, concrete layer, increasing pain over left buttock. Tender over attachment of gluteus muscle and left, L5 facet joint, decrease in rotation MM, TENS, MC (medical certificate)
A/muscular and facet joint pain,
Prescribed analgesic NSAID and Diazepam, heat, exercise, rest for one week, review.”
[16] PCB 125
37 Mr Ruskin sought to rely on that entry as demonstrating that there was no reference to the lifting of the lintel or the iron as suggested by the plaintiff in his evidence.
38 Having regard to the fact that Dr Amirogol was reviewing a patient with the assistance of a young Serbian girl who was not a professional interpreter and who may not have been familiar with the terminology used by the plaintiff to describe his employment, that omission of itself is not fatal nor is it fatal in combination with the other evidence.
39 It is evident that the note is at best a brief summary of the background and clinical findings that the doctor recorded upon the plaintiff’s presentation. There is reference to Mr Kovacic being a “concrete layer” that is clearly an error. There is no reference in the computer entry of what Mr Kovacic told the doctor about how he was injured be it a specific incident or a gradual process injury. I am not prepared to make any finding adverse to the plaintiff based on the record of this presentation.
40 The plaintiff’s description in his affidavit confirms that on or about 25 November 2003, after assisting with the lift, he became aware of a sudden sharp pain in his low back which spread into the left buttock and into the top part of his left leg down to the knee. He had had occasional low back pain in the past which had lasted a day or two and then resolved but nothing like this pain which spread into his left leg. I am satisfied that the description of the symptoms and the pain that he describes is consistent with the entry made by Dr Amirogol.
41 Further his symptoms were severe enough on that presentation to warrant further investigations by way of a CT scan that was performed on 4 December
2003. The report states as follows: “Re: Mr Pero KOVACIC – 49 Branton Road Hoppers Crossing 3029
CT SCAN OF THE LUMBAR SPINE
No abnormality of the L1/2, L2/3 nor L3/4 discs nor facet joints.There is a moderate annular bulge of L4/5 disc with some displacement of the epidural fat within the lateral recesses and slight effacement also of the thecal sac. This is slightly more pronounced on the left. No abnormality of these facet joints.
No abnormality of L5/S1 disc nor facet joints.”
42 Mr Ruskin sought to rely on the medical report dated 8 June 2005 of Dr Peter Reiter.[17] Dr Reiter noted that the plaintiff had seen him on two previous occasions on 9 August 2004 and 18 May 2004 prior to this injury. He notes in his report that the plaintiff does not speak English and that consultations were conducted with relatives interpreting, and I shall use his words, “which was tedious to say the least”.
[17] PCB 85
43 Dr Reiter first saw the plaintiff on 13 December 2002.[18] He did not consider himself his usual general practitioner due to the lack of regular attendances. It is important to note, however, that there is no record of long-term low back pain recorded prior to 25 November 2003. In the past Mr Kovacic attended for treatment for a blunt trauma to his ribs and a perianal abscess.
[18] PCB 130A Corio Medical Centre complete record
44 Dr Reiter’s computer entry for Monday, 8 December 2003 reads “self- employed bricklayer, still working, lumbago L4, L5>(L) for past 3/52. L4/5, disc prolapse confirmed on CT 4/12/03”. He noted that Mr Kovacic appeared to have sustained a significant back injury in late 2003.
45 He records that Mr Kovacic stated that the injury was a consequence of many years of heavy manual work as a bricklayer. He stated that this condition has caused chronic pain and consequently forced him to cease work on 10 June 2004.[19] Dr Reiter confirms that a lumbar disc prolapse was confirmed by CT scan as early as 4 December 2003.[20] This is close in time to the alleged date of the lifting incident.
[19] PCB 85
[20] PCB 86.1
46 In his evidence, the plaintiff confirmed that when he attended Corio Medical Centre to see Dr Reiter, he went with his son, Djordge, who was about 15 or 16 at that time. He consulted Dr Reiter because of the trouble with his back. He denied that he told Dr Reiter that he hurt his back due to many years working as a bricklayer.[21]
[21] T 18, L16-19
47 It was suggested to the plaintiff that he did not tell Dr Reiter that he injured himself whilst lifting steel and the plaintiff maintained that he did tell the doctor what he did.[22]
[22] T 18, L20-21
48 In his evidence he explained that at that time, Djordge did not work in the building area and had no idea of the weight that was being discussed. Djordge did know the Serbian word for iron or steel and he did know the Serbian word for bricks.[23]
[23] T 18, L20-31
49 The plaintiff’s son, Djordge, provided affidavit material and gave evidence that prior to 2003 his father was a fit man who had no problems with his back.[24] He confirmed that he did tell Dr Reiter that his father injured himself when lifting iron. In paragraph 5 of his affidavit sworn 15 April 2010, he states:
“I rang to make the appointment at the Corio Clinic with Dr Reiter and went with my father to the appointment that evening. As far as I recall this was the first time I saw Dr Reiter with my father. I told the doctor what the problem was as my father described it – he had sharp back pain with numbness in the legs. The doctor asked what happened and when I asked my father he said he was lifting “Gvoz’dje”. At that time I understood that was the Serbian word for steel, so I told the doctor he hurt his back lifting steel. Dr Reiter then asked what my father did for work and I said he as a bricklayer and had been a bricklayer for many years. Dr Reiter asked me whether it was hard work and I said something to the effect that it was a physically demanding job. As far as I recall there was no further discussion about how my father hurt his back. I do not remember whether or not the doctor asked how long my father had the pain or whether he said anything about x-rays.”
[24] T 49, L27-29
50 He confirmed that evidence when cross-examined.[25] I accept this evidence.
[25] T 51, L15-31, T 52, L1-31, T 53, L1-3
51 It may be that the explanation was given to the doctor and that he simply did not record it in his clinical notes or that the details were lost in translation. What is clear is that Dr Reiter noted that Mr Kovacic is a self-employed bricklayer whose complaints on 8 December 2003 were consistent with the L4/5 disc prolapse confirmed on CT scan of 4 December 2003.
52 Dr Reiter referred the plaintiff to Mr Tiew Han, neurosurgeon, who saw him on 13 August 2004 and 8 December 2004. In his written clinical notes Mr Tan records that at the first attendance, “the plaintiff was a 46 year old bricklayer, had LBP (lower back pain) 9 December 03 first injury, lifting bricks and steel (my emphasis), low back pain down left leg. Second injury 10 July 04, increasing back pain, continues to work. 10 July 03” (most likely this is a typographical error and should be 2004).
53 It is important to note that when the plaintiff was seen by Mr Han, he did record the injury was related to lifting bricks and steel and the problems associated with the referral back pain down his left leg which is largely consistent with the plaintiff’s evidence.
54 Mr Han confirms that history when he wrote to Dr Peter Reiter, that is, that the plaintiff injured himself on 9 September 2003 (the September reference is obviously another typographical error when reference is had to the clinical notes which record December 2003) whilst lifting some bricks and steel developing severe lower back pain radiating down left leg. He wrote that he managed to return to work but developed a second injury on 10 July.
55 Mr Ruskin sought to rely on Dr Peter Desmond’s report. Dr Desmond took over the management of the plaintiff’s injury in June 2007. He states in his letter dated 17 October 2007[26] that the history provided by the plaintiff’s solicitors is more detailed as his son was the interpreter and his history was of a more gradual injury pattern with predominantly midline pain and intermittent referred pain down the left leg. He stated the plaintiff was able to manage work for a period of approximately six months and then had to cease due to pain.
[26] PCB 87
56 The extract of Dr Desmond’s attendances of the plaintiff[27] show records from computer entries from 4 July 2007 through to 22 October 2007. The only entry that records the history is that of Tuesday, 16 October 2007 and it notes:
“Gradually 2003, bricklayer, five to six number of bricks per day 500 plus, Henley per two years, few inches from the pain, starting to stopping work, was off for 10 days, seven months lost, sleep pain level 7/10, 30 per cent no pain, 30 per cent sensation, lateral toe and half the foot, 30 per cent pain, 30 per cent various back pain and goes down the whole left side, 40 per cent flexion, 60 per cent left truncal flexion 155.”
[27] DCB 387
57 Mr Ruskin’s submission was that the history recorded is more consistent with a gradual onset injury from the lifting of the bricks and there is no mention of lifting of the steel.
58 Mr Kovacic’s evidence in cross-examination was when he transferred to Dr Desmond he did tell him that he had hurt his back whilst lifting steel[28] and he denied that he told the doctor that it was a gradual process injury.[29]
[28] T 23, lines 18-30
[29] T 23, lines 22-24
59 Given the cryptic nature of the entry recorded on 16 October 2007 by Dr Desmond, I am unable to draw any adverse inference from the fact that he did not record that the plaintiff injured himself following specific incident lifting the lintel on or about 25 November 2003.
60 There are real limitations in respect to both the reliance upon the computer entry and also on the doctor’s letter. This is particularly so given the history was being provided to him through the interpretation of his son.
61 Mr Ruskin sought to rely on Mr Weaver, orthopaedic specialist, who provided a report dated 20 July 2005 following his examination conducted on 20 July 2005. At that time a professional interpreter assisted the plaintiff.
62 Mr Weaver records that there was no specific incident which had caused the onset of the plaintiff’s symptoms but that he (the plaintiff) believes that heavy lifting associated with the nature of his employment was responsible progressively for causing him to develop a problem. Mr Kovacic’s evidence in cross-examination was that he did tell Mr Weaver he injured himself lifting the steel and he hurt his back.[30]
[30] T22,L9-12
63 Mr Weaver did, however, record that “the firm was involved with building garages and Mr Kovacic frequently had to handle steel girders which in fact required to be lifted by a team of four or five men”.
64 Mr Ruskin conceded in his submissions that the plaintiff did give a history of suffering an injury at work due to the specific incident to Mr Flanc and Mr Mangos.
65 Mr Charles Flanc, general surgeon reviewed the plaintiff for medico-legal purposes on 21 August 2006, 22 June 2007 and 31 March 2010. He recorded the circumstances of lower back injury occurring on 25 November 2003 as a consequence of the plaintiff assisting three others, including his son and son- in-law, to move a steel lintel to put in place above a garage door so that bricks could be laid. He confirmed that the plaintiff and his son, Goran, lifted the steel. Mr Kovacic initially felt pain in the low back as he lifted the lintel and as he walked backwards with it he pain became very severe. He told the others he had severe pain. They all dropped the lintel to the ground simultaneously. He walked around for several minutes and then the four of them again tried to lift the lintel onto the lower scaffold. They succeeded in doing this but Mr Kovacic could not do any more lifting and so the other three workers managed the lift and manoeuvred the lintel into its final position. He stopped working for 10 days and then returned to work. Pain improved. He continued working as a bricklayer. He aggravated the low back pain July 2004 whilst bricklaying and has not been able to work since.[31]This record is consistent with Mr Kovacic’s sworn evidence and that of his two sons, Goran and Zoran.
[31] PCB 109 and 110
66 Mr Mangos has seen the plaintiff on three occasions, 5 April 2006, 25 June 2007 and 14 April 2010. Mr Mangos was informed of the lintel lifting incident and on the assumption that it did occur he expresses the view that the injury to the plaintiff’s low back is referrable to the lifting incident on or about 25 November 2003.
67 Mr Ruskin also relied on the fact that Mr Messenger, who was the construction supervisor for Henley, was not made aware of the incident. This of itself is not conclusive. The plaintiff was a sub-contractor who worked as part of a team. The plaintiff did not report directly to Mr Messenger. Mr Messenger was not directly supervising the team and would come once in 20 days. Mr Kovacic was not able to communicate in English to Mr Messenger. The communication between Henley and the plaintiff were all through his sons and his son-in-law and daughter Zoranka[32].
[32] PCB 25
68 In evidence the plaintiff explained why he did not complain to Mr Messenger.[33] He said that he had been to the doctor, had been given tablets and did not know that it (his back condition) would reach this point. He always thought the pain would ease and he would be able to work again.[34] Each of those reasons is a sufficient explanation for his failure to inform Mr Messenger of the incident.
[33] T 22, L15-20
[34] T 23, L1-6
69 Mr Ruskin referred to the circumstances of the lift itself in his submissions. Mr Kovacic and his sons, Goran and Zoran each gave evidence about the attempt to lift the lintel in place and the plaintiff’s complaint of low back pain and his inability to complete the lift. I accept their evidence. The minor discrepancies between what his son, Goran, said and what Mr Kovacic said about the actual timing of the lift does not, in my view, make it less likely that the incident did not occur.
70 On balance, I am satisfied, that the incident did occur in the manner described.
Conclusion
71 I am satisfied that the plaintiff is a credible, reliable and truthful witness.
72 Prior to the claimed injury Mr Kovacic was capable of performing heavy manual work involved in his work as a bricklayer. His reputation as a good worker is acknowledged in the statement provided by Mr Messenger. Further Mr Messenger acknowledged that lifting lintels was the heaviest part of his job as a bricklayer. [35]
[35] DCB 32
73 I am satisfied that Mr Kovacic did not have any back injury of significance prior to the claimed date. That is supported by the evidence of his son, Djordge, and the evidence of his wife, Merjana, in her affidavit sworn 19 June 2007[36] and the clinical records of Dr Peter Reiter.
[36] PCB 40-42, paragraph 2
74 I accept Merjana Kovacic’s uncontested evidence that following injury in November 2003 her husband was in obvious discomfort, that he had time off work and was taking pain killers.
75 I accept Zoran Kovacic’s evidence that his father was not able to complete the lift and had time off work for some days following the incident. He confirmed that his father could no longer do the heavy work (like lifting lintels).[37]
[37] PCB 58.2
76 Mr Kovacic suffered significant disadvantage when he presented to each of the doctors due to his poor comprehension of spoken English. The fact that no general practitioner recorded the precise mechanism of injury is not conclusive.
77 There is sufficient supportive evidence that confirms that following the claimed injury Mr Kovacic had symptoms of back pain with referral of pain into the buttocks that was different to any other episodes of back pain that he had experienced in the past.
78 I am satisfied, on the basis of Dr Amirogol and Dr Reiter’s clinical findings combined with the findings set out in the report of the CT scan of 4 December 2003 that an inference can be drawn that Mr Kovacic suffered injury in the manner claimed.
79 There is also a certificate of capacity that was issued by Dr Reiter at the plaintiff’s request on 9 August 2004. It notes the injury as acute lumbago L4/5 disc prolapse on CT 4 December 2003 and CT 14 July 2004.
80 On balance having regard to Mr Kovacic’s evidence, which I accept, combined with the evidence which stands independently of his evidence to which I have earlier referred I am satisfied that the inference can properly be drawn from the whole of the evidence that Mr Kovacic suffered compensable low back injury on the 25 November 2003 in the manner claimed.
LIST OF EXHIBITS—
KOVACIC v HENLEY ARCH P/L
| COUNSEL FOR THE PLAINTIFF: COUNSEL FOR THE DEFENDANT: | Mr T Tobin & Ms K Galpin |
| Mr J Ruskin QC & Ms R Annesley | |
| Number and |
| Identifying | Short Description of Exhibit | Date | Plaintiff/ |
| Mark on | Tendere | Defence |
| Exhibit | d |
A Drawing of Lintel 23 April Plaintiff 2010
B Page 56 of the Transcript from 12 December 23 April Plaintiff 2007 2010
C Defendant’s Court Book material including; 23 April Plaintiff
Report of Mr. H Weaver dated 20 July 2005; 2010 Affidavit of K Messenger sworn 19 October 2006; Work cover Claim for Compensation dated 9 August 2004; Subpoenaed notes of National Australia Bank
D Plaintiff’s Court Book material including; 23 April Defence
Affidavit of Pero Kovacic dated 9 December 2010 2005; Further Affidavit of Pero Kovacic dated 15 May 2006; Further Affidavit of Pero Kovacic dated 19 June 2007; Further Affidavit of Pero Kovacic dated 15 April 2010; Affidavit of Merjana Kovacic dated 19 June 2007; Affidavit of Goran Kovacic dated 30 November 2007; Affidavit of Goran Kovacic dated 23 December 2008; Affidavit of Zoran Kovacic dated 7 December 2007; Affidavit of Zoran Kovacic dated 18 August 2008; Affidavit of Mile Stojanovski dated 7 December 2007; Affidavit of Djordje Kovacic dated 15 April 2010; Affidavit of Nenad Ostojic undated. Report of Dr P Reiter dated 8 June 2008; 20 December 2005; Dr P Desmond dated 17 October 2007; Report of Mr C Flanc dated 2 April 2010; Mr P Mangos dated 14 April 2010 Plaintiff’s clinical files including Dr P Reiter of the Corio Medical Clinic, including computer records at the Plaintiff’s Court Book pages 130A-H, Letter of Mr T Han dated 13 August 2000 Claim documents including;
Workers Claim Form dated 20 October 2005;
Work cover certificate of Capacity dated 9
August 2004
0