Lynch v Quality Timber Blinds Pty. Ltd

[2009] VCC 123

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-07-04661

David Lynch	Plaintiff
v
Quality Timber Blinds Pty. Ltd.	Defendant

---

JUDGE:	Lewitan
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3, 4 and 5 December 2008
DATE OF JUDGMENT:	27 January 2009
CASE MAY BE CITED AS:	Lynch v Quality Timber Blinds Pty. Ltd.
MEDIUM NEUTRAL CITATION:	[2009] VCC 0123

---

Catchwords: S.134AB; causation

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. T. Tobin SC and Mr. A.	Holding Redlich
Keogh
For the Defendant	Mr. R. Smith SC and Ms. N.	Lander & Rogers
Wolski

!Und efined Bookm ar k, I

HER HONOUR:

A. INTRODUCTION

1 This is an application for leave to bring proceedings for the recovery of damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in respect of injury to the lower back the plaintiff (“David Lynch”) alleges occurred in the course of his employment with the defendant on 27 December 2002.

2          David Lynch alleges that the injury to his lower back and in particular the injury to his discs at the L4-5 and L5-S1 levels is a serious injury within the meaning of s.134AB(37)(a).

3          The relevant body function in which there has been impairment or loss is the lumbar spine.

4          The defendant concedes that David Lynch has a serious injury as defined. However the defendant contends that David Lynch’s current condition is not attributable to the alleged incident of 27 December 2002.

5            The issue in dispute is therefore causation.

6          The onus of proof is on the plaintiff.

B. BACKGROUND

7          David Lynch was born in Ireland on 20 August 1950 and is now 58 years old. Married twice, he has a son and a step son.

8          David Lynch left school when he was 19 years old and completed an apprenticeship as a joiner/carpenter. After migrating to Australia in 1975, he worked as a carpenter, mainly in the construction industry. He was self– employed for some time. David Lynch suffered an injury to his left knee at work in 1977 and did not work for a period of between 9 to 12 months. He received $40,000 in compensation and says that he made a good recovery.

9          David Lynch developed a neck disorder in the 1990s in non-compensable circumstances and Mr. Michael Pullar, neurosurgeon, performed a cervical fusion on 15 September 1997. He returned to his work about six months after surgery and was able to continue with his normal work.

10         In around February and March of 1999 David Lynch attended his general practitioner, Dr. Mitchell, with complaints of pain in his feet. He was referred to Dr Findeisen, rheumatologist. A CT scan was taken of his back on 24 March 1999.

11         Mr. Mitchell also referred David Lynch to Mr. Gary Speck, orthopaedic surgeon. In his report dated 13 August 2003 Mr. Speck stated that he had seen David Lynch 8 ½ years ago with bilateral leg symptoms. The MRI scan at that time showed a left sided foraminal narrowing at L5/S1 and disc prolapse to the left at the L3/4 level. His symptoms at that time were worse on the right side than on the left side.

12         David Lynch commenced employment with the defendant (“Quality Timber Blinds”) in 1999. His tasks included measuring sites in metropolitan Melbourne and the Mornington Peninsula for installation of shutters and blinds. He dealt with customers and sales. He was promoted to general manager in 2001. Generally he worked from 8.00 am through to 6.00 pm.

13         David Lynch attended Dr. Mitchell again in August 2002. He complained of neck pain, back pain and calf ache. On 2 August 2002 Dr. Mitchell arranged for x-rays to be taken of the lumbar spine and the cervical spine.

14         There were no records of any relevant complaints from September through to December 2002.

15         David Lynch says that he suffered an injury to his lower back on 27 December 2002. He said that at that time Quality Timber Blinds was in the process of moving from its old premises at Moorabbin to a new factory at 10 Christianson Street, Cheltenham.

16         There is no dispute that the move between the factories took place in December 2002 and that David Lynch was in charge of that move.[1] The evidence of Mr. Simon Yung, a director of Quality Timber Blinds, was that David Lynch was “the person in charge”.

David Lynch was also aware that my wife and I would not be present at the work premises over Christmas/New Year and knew that he would be in charge of any work to be done. That is why he was employed to be the general manager, to arrange and be in charge of these activities.

[1]2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71

17         All of the machinery at the old premises had to be shifted to the new factory. The larger machines were moved using a forklift and a truck. A smaller machine called a cutting machine was transported on a tandem trailer. David Lynch said that on 27 December 2007 he was assisting a number of other workers to lift the machine off the back of the tandem trailer when it arrived at the new factory. The machine was about 2.5 metres long, 1.5 metres high and 600mm wide. It was on a rickety stand. There were small steel castors on the bottom of the stand legs. The machine was top heavy and awkward to move. David Lynch was on the ground lifting the machine from the trailer to the ground with a number of other workers.

18         David Lynch said that he felt pain in his low back when he took the weight of the machine to lift it to the ground. He was able to keep working on that day but had to take it very easy. He worked on the next day, 28 December 2002, to help get the shift completed. He then finished work for that year and went on holiday with his family.

C. DID DAVID LYNCH SUFFER AN INJURY ON 27 DECEMBER 2002?

19         The defendant says that David Lynch did not work on 27 December 2002 and that all equipment had been moved from the Moorabbin premises prior to the commencement of the Christmas break.

The two witnesses

20         The defendant submits that the witnesses named by David Lynch on the claim form both deny that they were working at the relevant time and deny knowledge of any injury to David Lynch. They were not called for cross- examination.

21         On 20 August 2007 Jian Guang Zou2 stated:

says he injured his lower back on the 27th December 2002. He says I helped	I have been nominated as a witness by David Lynch to an incident where he
him move a cutting machine off a trailer into the new factory on that day.
Every year since I started work, the factory closes down just before Christmas and all the workers have three weeks off on holiday. I cannot remember the dates of when I had the holidays in 2002/2003.
If I did help David Lynch on the 27th December 2002, this would mean that I occurred on the 27th December 2002, I can say that I was not at work on that came into work while I was on holidays that year. If this injury to David Lynch
date. I have always taken the time off over the Christmas/New Year period and I have usually travelled somewhere. I cannot say if I actually went away that year, but I did not come into work during the holidays.
I did help with the move of the factory from Moorabbin to Cheltenham but I cannot remember what I may have moved or lifted at that time. To my recollection the move happened before I went on holidays at Christmas. I cannot remember working with or near David Lynch at that time and have no recollection of hearing him say that he hurt his back while lifting anything.

22         The statement by Jun Liu3 was made on the same day (20 August 2007) and is in similar terms. He also stated that he could not remember the dates on which he had holidays in 2002/2003.

If I did help David Lynch on the 27th December 2002, this would mean that I came into work while I was on holidays that year. I cannot recall coming into work while I was on the holidays at Christmas/New Year of 2002/2003. I cannot remember helping David Lynch lifting any equipment off a trailer. To my recollection I did help move some smaller tools and machines, furniture and chairs and did help others lift some larger machinery.

I believe all this was done before Christmas 2002 and before we went on holidays. I cannot remember coming in after Christmas to help David with moving the one item he says he moved on the 27th December 2002.

I cannot remember working with him or near him and heard him say that he has hurt his back while lifting anything.

23         Each of the two witnesses does not state that he has a specific recollection of the days on which he worked in December 2002. Each statement was made almost five years after the event and based on what usually occurred over the Christmas/New Year period. However the Christmas/New Year period in December 2002 was different because there was an extraordinary event occurring at the workplace at that time; Quality Timber Blinds moved premises. Accordingly there was a good reason why there was some level of activity beyond the normal closing date.

24         No evidence was called by the plaintiff from the persons he said were present on 27 December 2002. I accept the defendant’s submission that the Court should draw an inference that the evidence given by those witnesses would not have assisted the plaintiff’s case.

Man Sai Yung

25         The defendant called Man Sai Yung (also known as Simon Yung) to give evidence. He has been a director of Quality Timber Blinds for 15 years. His wife Mei Yung is also a director. The business employs up to 20 people to manufacture timber venetian blinds. At this time there are 6 people employed in the factory. At peak times, such as the Christmas/New Year period, extra factory staff are employed as casuals.

26         Mr. Yung stated that in about late 2001 David Lynch was promoted to the position of general manager and paid an annual salary of $56,000. Mr. Yung also stated that David Lynch did not perform any administration work.

27         According to Mr. Yung’s statement taken 20 August 20074 (with the assistance of an interpreter):

David Lynch states that he suffered an injury to his lower back on the 27th December 2002 while lifting a piece of machinery. He lodged a claim for workers compensation in relation to this injury on 23 February 2004. Despite my belief that this claim was fraudulent at the time, the claim was accepted by our workers compensation insurer.

28         However in the Workcover Claim Report which he signed on 24 February 20045, Mr. Yung stated that David Lynch suffered a back injury when moving a cutting machine into a new factory on 27 December 2002.

29         Mr. Yung stated that prior to Christmas 2002, David Lynch was employed as the general manager. According to Mr. Yung, David Lynch was also responsible at that time for co-ordinating a relocation of Quality Timber Blind’s business premises from 3 Nellburn Road, Moorabbin to the current site at 10 Christensen Street, Cheltenham. This relocation occurred prior to the Christmas shutdown on 23 December 2002. Mr. Yung stated that all machinery and equipment was moved prior to the Christmas break. He said that David Lynch ordered the trucks and lifting equipment to move the machinery. David Lynch also arranged for and paid for the cleaning of the new premises and was reimbursed at a later stage for the cleaning services as he had paid for these services on his credit card.

30         Mr. Yung stated that there is a compulsory shutdown over the Christmas and New Year periods each year. In 2002 the business closed on 23 December 2002 and re-opened on 14 January 2003. However he stated that David Lynch would be required to be present at the new premises during that period to allow access for an electrician to connect the electricity supply and perform some electrical connections. “This was to ensure that the factory would be ready to resume production on 14 January 2003”.

31         Mr. Yung stated that he had not sighted any invoice for the hire of a tandem trailer to move the smaller cutting machine on 27 December 2002. In cross- examination Mr. Yung agreed that David Lynch had been promoted to the position of general manager and that David Lynch paid bills with his own credit card and that Mr Yung would reimburse him.6

32         Mr. Yung said that he has no records to confirm that David Lynch worked on 27 December 2002. However in cross-examination David Lynch stated that Mr. Yung paid him $2000 in cash at the break up party at the Shark Fin restaurant just before Christmas 2002 which was partly a bonus and partly as wages for the work that David Lynch was required to perform over the next few days after Christmas.7

33         In cross-examination Mr. Yung also agreed that he had stated that David Lynch’s pre-injury average weekly earnings at the time of injury (excluding overtime and allowances) was $1000 per week in the Workcover employer’s claim form8 which differs from David Lynch’s salary of $56,000 referred to in his earlier statement.9

34         Mr. Yung and his wife were not at the factory on 27 December 2002. They had travelled to Sydney on Christmas day to meet relatives. After new year, Mr. Yung travelled to Surfers Paradise with his family for further holidays. Mr. Yung left David Lynch in charge of any work to be done. Mr. Yung stated10:

As he was the person in charge, he was responsible in any event, for the health and safety of all persons working at the premises that day …David Lynch was also aware that my wife and I would not be present at the work premises over Christmas/New Year and knew that he would be in charge of any work to be done. That is why he was employed to be the general manager, to arrange and be in charge of these activities.

35         In cross-examination Mr. Yung initially said that there was no work to be done by electricians in the period between 22 December 2002 and 14 January 2003 when they moved between factories.11 Mr Yung later admitted that the electricians came when he was on holidays during that period.12

36         In cross-examination Mr. Yung agreed that whatever work was done at the factory after he left the state on Christmas day, David Lynch was the person who would have the access to the keys and access to the factory.13 Mr. Yung stated:

He have the key to organise the electrician to put the electricity board and machinery, only to organise the electrician to throw the electricity for the machinery, so he not move on when we on holiday. That’s why he have the machines.14 key to get in to organise the electrician, where – with the cable for the

37         Mr. Yung was asked:

How was the cutting machine shifted from one factory to the other?... You mean only one machine or all the machines?

The cutting machine, its – Mr Lynch was talking about the shifting of that cutting machine? ….He got everything himself organise, he organise the – the Kent truck, the forklift, and the time – the – the cutting machine how they move, I really don’t know.

So, how particular parts were moved, he organised it?...Yes.

And he worked out how to do it? …Yes

That’s why you say in your statement it’s not your fault that he hurt himself in this way, it’s his fault because he had to organise it?...Because he is the company general manager so we - we think he’s everything he organise and where we put and even to organise the truck or the person to move.

So he had the total responsibility of the organisation of the shift?...Yes.

And how it was to be done was his decision?...Yes

When it was to be done was his decision, so long as it was ready by the middle of January?...We probably discussed how is done and then how can we move everything before we on holiday.

You believe that it all had been moved before you went on your holiday?...Yes.

But you’re unaware except from what he told you, as to what was done whilst you were away; would that be correct?...Sorry, I not understand.

You had no one else acting as a manager except for him, whilst you were away? (No audible response).

If there was to be work done whilst you were away, he was the person who would organise it?...Yes.15

38         In cross-examination Mr. Yung said that an injury report book was kept at the reception at work. He said that “On 27 December we are on holidays so no reception”.16 Mr. Yung also said that if people were working after 22 December 2002, Mr. Yung was not there to supervise them.

39         In cross-examination Mr. Yung stated that he did not know that David Lynch had hurt his back before David Lynch asked for compensation.17

He come to see me to tell me that he hurt his back and he want to claim the
WorkCover, and then he take the form.

40         However David Lynch had taken a week off work in September 2003 and was admitted to the Epworth Hospital on 25 September 2003. Mr. Yung visited David Lynch in hospital. At that time David Lynch told Mr. Yung that they needed to obtain a claim number because the injury to his back was a WorkCover injury. David Lynch said that he thought that everything would go away until that time.

41         Mr Yung later admitted that he had visited David Lynch in hospital in September 2003 when David Lynch was receiving treatment for his back.18

42         Mr. Yung agreed that the only reason that David Lynch stopped working for him was because of his bad back.

43         Mr Yung admitted that he paid David Lynch twelve months of make up pay after David Lynch stopped working for Quality Timber Blinds.

44         In cross-examination Mr. Yung gave the following evidence:

[In] 2004 when you made the claim you trusted him and thought he was being
truthful?....Yes.

What was it between 2004 and 2007 that made you think that he wasn’t being truthful?... After claim this form, after he claim this form he still ask me to pay his full rate, not according to the QBE percentage.

Make up pay?...Yes. So because he say in the past he support me, so when he got injury, I try to support him and I still keep paying, I don’t – I forget until what day I stop but one day when I – because the business without him (indistinct), the business is going down, that’s why when the company got difficulty, one day I went to him, to his place, I ask him, can I cut your superannuation because this not affect his living, superannuation is not spend money for his living, so he not happy.

So it was after he was upset when you tried to cut his superannuation that you started then to doubt what had happened?...Yes and then I think he got – I support him because like I say put in the claim form, hopefully he will come and do like this, I still keep the position until, you know.19 back to work to help me maybe after a few months but keep going, keep going

45         Robert Grant Fraser (“Mr. Fraser”) , senior legal manager employed by QBE Workers Compensation (Vic.) Limited (“QBE”) agreed in cross-examination that if an employer has any query about a claim, there is an opportunity to question the worker’s claim both in the report on the claim filled out by the employer at the time the claim is made and by contact with QBE’s office. Mr. Fraser agreed that there was no document from Mr. Yung that in any way contested David Lynch’s claim before an investigator saw Mr. Yung in 2007.

20

46         I found Mr. Yung’s evidence to be less than satisfactory. As indicated in the above paragraphs 26 to 44, he gave inconsistent answers to questions put to him in cross-examination. Even though Mr. Yung had some difficulty in understanding some of the questions put to him, he appeared to be evasive when cross-examined by counsel for David Lynch. It was clear that he was prepared to sign documents and then later to state that he did not agree with the statements in those documents because he did not understand them at the time. His actions in continuing to pay David Lynch were inconsistent with his claim that David Lynch did not injure his back on 27 December 2002 as alleged in the employer’s claim report and signed by him in February 2004.

Credibility of David Lynch’s evidence

47         I found that David Lynch was a straightforward and credible witness. He was cross-examined over an extensive period of time and his evidence was consistent. He made concessions where it was appropriate. His evidence, for example, regarding the nature of his responsibilities over the Christmas/New Year period, was confirmed by the evidence given by Mr. Yung in cross- examination. David Lynch made a note of the work he performed on 27 and 28 December 2002 in his diary.21

48         In relation to the events which occurred in December 2002, the statement made by Mr. Yung in August 2007 is largely a reconstruction rather than a definite memory of events. He stated that “each year, there is a compulsory shutdown over the Christmas and New Year periods. In 2002 the business closed on the 23rd December 2002 and re-opened on the 14th January 2003.” However, because of the fact that Quality Timber Blinds was moving premises, there was an exceptional reason why work may have been undertaken after Christmas in 2002. Mr. Yung was not in fact in Victoria at the time of this work and David Lynch was in charge.

49         Having considered the whole of the evidence, I prefer David Lynch’s evidence to Mr. Yung’s evidence about the work performed by David Lynch on 27 and 28 December 2002. The entry in David Lynch’s diary on 27 December 2002 also bears the note “tell Simon about my back.”22

50         The defendant submitted that I should not be satisfied that David Lynch injured his back on 27 December 2002 because within a few days of the alleged incident, David Lynch drove from Melbourne to Surfers Paradise, stopping at Dubbo en route. It is a long drive and David Lynch did all the driving.

51         However I accept David Lynch’s evidence that although the incident on work on 27 December 2002 caused him back pain, David Lynch said that it felt like he had pulled a muscle and that is what he hoped it would be. He continued on at work avoiding physical tasks on 27 and 28 December 2002. He did not cancel his plans to drive to Surfers Paradise, Queensland, but stated that he had many breaks along the way. David Lynch continued to work when he returned to Melbourne in January 2003.

52         David Lynch’s wife, Rudi Lynch, stated that David Lynch often seemed to be in pain while they were in Queensland. She said that he laid down to rest quite often during the day because he was sore. He took some Mersyndol for pain relief. 23

53         In Dwyer v Calco Timbers Pty. Ltd. (No 2)24 Nettle JA observed by way of obiter:

I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.

54         From 14 Juanuary 2003 until April 2004, apart from the time he was at the Epworth in late September 2003, David Lynch performed his normal duties. He said that he experienced quite a few difficulties performing his normal duties and was on various medications. He was taking a narcotic based drug by the name of Oxynorm. David Lynch continued to work as well as he could in spite of his injury which eventually became so serious that it prevented him from performing his normal duties at work. David Lynch stopped working for Quality Timber Blinds in April 2004.

55         On 6 April 2004 Mr de la Harpe performed a discography.

56         An MRI organised by Mr. de la Harpe on 5 May 2004 concludes25:

Left paracentral/foraminal disc protrusion is demonstrated at L3-4 with mass effect on the left L4 nerve and to a lesser extent the exiting left L3 nerve. The size of this disc protrusion has increased in comparison to previous examination. Generalised disc bulge is seen at L4/5 and L5/S1 with minor subarticular stenosis of the traversing left L5 nerve at L4/5 and minor left foraminal disc protrusion at L5/S1. These appearances are unchanged since previous examination.

57         On 11 May 2004 Mr De La Harpe performed a double level spinal fusion surgery. Further surgery was performed on 10 June 2006.

Rudi Lynch

58         An affidavit in support of David Lynch’s application was made by Rudi Lynch, David Lynch’s wife on 27 November 2008.26 She was not cross-examined.

59         Rudi Lynch stated that she took lunch to David at work on a number of occasions in December 2002 when the shift of factory premises was taking place. She had a specific memory of attending either the old or new workplace on 27 December 2002. Rudi Lynch said that David Lynch was suffering pain in his low back over the rest of December 2002.

The Medical Evidence

60         The defendant submitted that the early histories provided by David Lynch contained no reference to a work injury and that the histories provided by David Lynch are not consistent with this injury occurring in the manner alleged by him.

The Chiropractor

61         David Lynch attended the South Coast Chiropractic Clinic on 8 January 2003. The Chiropractic Clinic Patient History Report dated 8 January 2003 was tendered in evidence.27

62         The defendant submitted that no report from the chiropractor has been served and that it would have been a very easy matter to obtain a report. However I accept the plaintiff’s submission that a report from the chiropractor would not have advanced David Lynch’s condition beyond an attendance note by the chiropractor on one occasion on a person he had never met before and never met again.

63         The notes taken by the chiropractor include28:

“	Thx spine L
onset	3/7 days (p) ful r side
incident	possible d/t driving from vic
prog	legs & feet aching
ref/rad/p & ns	(p) now from lower thoracic to feet
constant pain 8/10
agg	everything
rel	nil
* just moved equipment from factory could be contributing to fatigue”.

64         At page two of the report the chiropractor (Tony) indicated that manipulation was performed at the L4 and L5 levels.

65         The chiropractor recorded that David Lynch had just “moved equipment from factory”29 in a way which leads to the conclusion that there is some causal connection between David Lynch’s work and the condition he treated.

66         David Lynch says that he went to Wet ‘n’ Wild, in Queensland, on the day after he visited the chiropractor. There was a great deal of cross-examination about whether David Lynch visited the chiropractor before or after he went to Wet ‘n’ Wild. I accept David Lynch’s consistent evidence that he went to Wet ‘n’ Wild after he visited the chiropractor. There was no evidence advanced by Mr. Yung about when he and David Lynch went to Wet ‘n’ Wild.

Dr. Mitchell

67         Dr. Mitchell stated that David Lynch attended his surgery and complained of lower back and calf ache on 7 August 2002.30 However in cross-examination Dr. Mitchell agreed that David Lynch did not complain of back ache in the five months between 7 August 2002 and 23 January 2003.

68         The defendant referred to Dr. Mitchell’s clinical notes.31 Dr. Mitchell stated that there were complaints of lower back and leg pain. No history of any work accident or injury was obtained or noted by Dr. Mitchell until 19 April 2004.

69         David Lynch returned to work in the middle of January 2003. He attended Dr. Mitchell on 23 January 2003. On that date Dr. Mitchell recorded:

Lower back has been particularly troublesome, left side more so than right. thighs and calves below left medial malleolus (left ankle).32 Also experiencing bilateral leg pain, left and right side, radiating to posterior

70         Dr. Mitchell organised a CT scan on 28 January 2003. There is a reference at L4-5 to “minor left posterior lateral disc bulge and the nerve roots appear to exit normally and at L5-S1 there is a slight left posterior lateral disc bulge which appears to mildly compromise the exiting left L5 nerve root”.33

71         Although Dr Mitchell does not have a specific note of the event in which David Lynch suffered an injury until it is recorded on 19 April 2004, Dr. Mitchell repeatedly stated that that was the first time he recorded that incident. In cross-examination Dr. Mitchell was asked:

“And you don’t resile from your earlier evidence that the first you were told of any workplace involvement was in April of 2004? …That’s certainly the first time I recorded it.”34

72         In re-examination Dr. Mitchell was taken to some of the reports which he had received. Each of the reports (by Dr. Bower dated 3 September 200335, Mr Johnson dated 3 October 200336 and Mr. de la Harpe dated 30 January 200437) refers to David Lynch’s injury at work in December 2002 whilst taking part in the relocation of the factory. Each of those reports predates 19 April 2004. I accept Dr. Mitchell’s evidence that at least from September 2003 he understood that the pain which David Lynch felt in his back was attributed to the events that occurred at the factory in December 2002.

73         When asked to say when it was that he first had an understanding of the attribution of David Lynch’s back pain to the events that occurred at the factory job in late 2002, Dr. Mitchell stated:

“No, well what I can say is it was at least 3 September 2003, which is when the was on trying to relieve his symptoms.38 first of these reports came through. And again, prior to that, I guess our focus

74         In his comprehensive report dated 30 January 200639, Dr. Mitchell clearly expresses his opinion that:

Mr. Lynch’s current incapacity, I believe, is related exclusively to the injury he sustained. Prior to this injury he was very active and productive.

75         Dr. Mitchell was not challenged on this opinion.

76         David Lynch attended Dr. Findiesen on or about 17 February 2003, Mr Speck on or about 13 August 2003 and Dr. Kinloch on 17 September 2003. None of those practitioners record a history of the injury. However the history taken by each of them is consistent with David Lynch’s symptoms re-commencing in a significant way in December 2002. To that extent those histories are consistent with the injury occurring at work on 27 December 2002 and confirm a significant change and worsening of David Lynch’s condition at that time.

Dr. Findeison

77         Dr. Mitchell referred David Lynch to Dr. Findeison, rheumatologist, in February 2003. In his report dated 17 February 200340, Dr. Findeison stated:

“I saw him back in 1999 with heel and posterior leg pain which I blamed on his lumbar spine and apparently everything settled nicely and he has been pretty good over the past four years and been able to renovate a house working every weekend. Symptoms, however, returned two months ago for no apparent reason. Since then he has had quite significant bilateral buttock pain extending down both posterior legs to the heels which hasn’t improved with Celebrex and physiotherapy. Morning stiffness lasts 10 minutes and his pain can wake him at night on occasions.”

78         The defendant submits that the history taken by Dr. Findeison was that David Lynch developed symptoms for “no apparent reason” which is at odds with David Lynch’s evidence that there was a specific incident which had resulted in severe pain at the time.

79         David Lynch says that he believes that he told Dr. Findeison that he had hurt himself moving a machine. Although the defendant relies on the statement in Dr. Findeisen’s report that David Lynch developed symptoms for “no apparent reason”, Dr. Findeisen’s report nevertheless confirms David Lynch’s account that his significant symptoms developed in December 2002.

Mr. Speck

80         In his report dated 13 August 200341, Mr. Speck, orthopaedic surgeon, stated:

The changes do not explain the symptoms in the leg, with a burning feeling present since December.

81         Mr. Speck’s report indicates that the symptoms in David Lynch’s leg and the complaint of burning developed from December 2002, which was the time of the alleged injury.

Dr. Kinloch

82         The history recorded by Dr. Kinloch is also consistent with David Lynch’s injury occurring in December 2002. In his report dated 10 February 200642, Dr. Kinloch recorded David Lynch’s history in September 2003 as:

He complained of back pain and bi-lateral lower limb pain commencing four years previously, initially intermittent, but constant over the preceding nine months.”

Dr. Simon Bower, neurologist

83         In his report dated 3 September 200343, Dr. Simon Bower stated:

In January he told me he was moving a punch machine at work when he developed sudden lumbar back pain. He drove to Queensland one week later, which aggravated his symptoms. Since then he has had burning pain in his feet, particularly the right lateral aspect of his foot, which radiates into the back of his calves and thighs.

Mr. Michael Johnson, orthopaedic surgeon

84         Dr. Kinloch referred David Lynch to Mr. Johnson. In his report dated 3 October 200344 Mr. Johnson recorded that David Lynch:

Originally developed some discomfort in the right foot in 1999, but this was not severe.

In December, 2002, he developed more significant symptoms when moving boxes whilst taking part in the relocation of his factory.

Mr. David de la Harpe, orthopaedic and spinal surgeon

85         Dr. Mitchell referred David Lynch to Mr. de la Harpe who examined David Lynch on 29 January 2004. In his report dated 30 January 200445 Mr. de la Harpe recorded:

David has had back pain and bilateral non-dermatomal leg pain since moving equipment at his factory over a year ago followed up by a long drive to Queensland.

86         Further prior to lodging his claim for compensation, David Lynch attended each of Dr. Bower, neurologist, on 3 September 2003, Mr. Johnson, orthopaedic surgeon, on 3 October 2003 and Mr de la Harpe, orthopaedic surgeon on 29 Janaury 2004 for treatment. Each of those specialists independently records a relatively accurate history of injury caused to David Lynch by lifting during the factory relocation in December 2002. These histories were recorded in the context of attendances for treatment prior to the lodgement of any claim for workcover. These histories are consistent with David Lynch’s evidence.

87         There is no doubt expressed in the medical opinions of various examiners as to the consistency between the incident complained of by David Lynch and the injury observed by those medical specialists.

Dr. Lewis, rheumatologist

88         In his report dated 26 June 200746, Dr. Lewis stated that:

Based on his history in my opinion his employment was a significant contributing factor to the injury and the subsequent need for surgery.

Mr. Brownbill, neurosurgeon

89         In his report dated 15 May 2008, Mr. Brownbill47, neurosurgeon, stated:

“On the information provided I consider that this man had longstanding essentially asymptomatic lumbar spine degenerative changes which were rendered symptomatic by the described lifting incident on 27 December 2002 with associated two level lumbar invertebral disc derangement.

90         Dr. Mitchell referred David Lynch to Dr. Brzozek who gave him an epidural in July 2003.

91         Dr. Mitchell also referred David Lynch to Cameron Bennett, physiotherapist.

92         The defendant submitted that the plaintiff has not served reports from other early treaters such as Dr. Brzozek (July 2003) and Cameron Bennett (physiotherapist) (July 2003). I accept the defendant’s submission that their evidence would not have assisted David Lynch’s claim.

David Lynch’s drive to Queensland

93         The defendant submitted that the symptoms complained of by David Lynch are consistent with an aggravation of a pre-existing condition by David Lynch’s prolonged drive to Queensland and his activities at Surfer’s Paradise.

94         The defendant referred to the report by Laraine Buscombe (a psychologist retained by the plaintiff’s solicitors), dated 10 February 200648. in which she stated:

David’s injury occurred at work on 27/12/2002 when he was moving machinery over the Christmas break in order to relocate to new remises. There was minimal staff available at the time because of the holidays and communication was difficult with the available staff because of their limited fluency in English. He was under considerable work pressure at the time of the accident to complete the job over the Christmas break as the company was moving to new premises and he was lifting heavy machinery himself since he could not use a fork-lift. As he lifted the load, he twisted his back. Although he was in considerable pain, he did not realise at the time that the injury was as serious as it was. When he was on leave and was on holiday in Queensland from 02/01/2004 [sic], he experienced intense pain from driving for two days and consulted a chiropractor in Surfers Paradise. The chiropractor diagnosed pulled muscles in his back and treated him for that, but the pain intensified and worsened. He did attempt to return to work with modified duties, but the pain was debilitating and prevented his continuation at work.”

95         The defendant submitted that that report indicated that there is a clear account of a significant contribution to David Lynch’s problems by the drive to Queensland.

96         However David Lynch was able to do a whole range of things for an extensive period of time after he hurt his back. He continued to work on that day and the next day, but avoided physical tasks. He drove to Queensland, he went to Wet ‘n’ Wild and drove back from Queensland. He returned to work on about 14 January 2003 and performed his normal duties between 14 January 2003 and April 2004. However during that period, David Lynch experienced significant problems with his lumbar spine. The fact that David Lynch drove to Queensland after he injured himself is consistent with David Lynch’s attempts to continue his normal activities and maintain himself in employment.

Video taken at Wet ‘n’ Wild

97         The defendant contends that the video recording of David Lynch taken at Surfer’s Paradise in early January 2003 does not support David Lynch’s case that he had suffered any serious injury shortly before the recording was made.

98         The defendant submits that David Lynch is shown to be active at Wet ‘n’ Wild and in no apparent discomfort. Although the defendant conceded that there were more athletic rides available at Wet ‘n’ Wild and there was no evidence that David Lynch went on those rides, David Lynch engaged in activities that would be likely to jar and aggravate a back injury.

99         I accept David Lynch’s evidence when he states that the video recording was taken at Wet ‘n’ Wild in Surfers Paradise on 9 January 2003, the day after David Lynch said that he had visited the chiropractor. This is confirmed by the fact that the chiropractor’s notes make no reference to David Lynch’s visit to Wet ‘n’ Wild. The video showed David Lynch sitting on a large tube down a slide. David Lynch was also filmed in the wave pool. At one stage there appeared to be a splashing fight going on in the wave pool. David Lynch then carried two mats up to a ride named Aqua Racer and bent over to grab a mat which had slipped onto the ground. David Lynch also went down another water slide with a young child between his legs.

100       I have reviewed the video taken at Wet ‘n’ Wild. Although it shows David Lynch participating in some of the water activities, close examination of his movements suggests that David Lynch had a stiff back. I accept David Lynch’s evidence that he was in a bit of pain at the time but was “just battling on”.49 I accept David Lynch’s evidence that he had been to the chiropractor the day before. Although David Lynch may have been foolish in going down the water slides, his conduct should be considered in context. David Lynch is a person who continued to work in 2003 even though his back was getting worse. He kept hoping that his back would get better.

The claim forms

101       The defendant submitted that the Court should not accept David Lynch’s evidence that he injured his back at work in December 2002 because he did not lodge a claim for compensation until 23 February 2004, 13 months after the alleged injury.

102       However I accept David Lynch’s evidence that he requested the WorkCover claim forms from his employer but that it took some time for them to be provided. He eventually obtained the forms from the post office.

103       David Lynch filed a WorkCover Worker’s claim form on 23 February 2004.50 In that form he said that he was lifting a machine just before the injury. He said that the manual handling of the cutting machine caused or contributed to his injury.

104       The employer’s claim report signed by Mr. Yung51 on 24 February 2004 also states that David Lynch’s injury occurred on 27 December 2002 and that the injury happened when David Lynch was “moving cutting machine into new factory.” 52

105       I accept David Lynch’s evidence that he completed the WorkCover worker’s claim form and that it was all his writing apart from Mr. Yung’s signature and Sue O’Brien’s signature. I accept David Lynch’s evidence that he did not complete the employer’s workcover claim report.53

106       Question 47 of the employer’s workcover claim report states “If there are any reasons why you believe you are not required to pay compensation as claimed by the worker, please give details”.54 Mr. Yung said that he did not give any details “because this form is not filled by me.”55 However Mr. Yung admitted that he signed the report and that it was witnessed by Susan O’Brien.

David Lynch’s underlying back condition

107       The defendant submitted that David Lynch had an underlying back condition. In August 2002 he complained to Dr. Mitchell of “lower back and calf aching troublesome for months”.56 The radiology of 1994 (as described by Mr. Speck57) showed foraminal narrowing at L5/S1 and a prolapse to the left at L3/4. The CT scan of 24 March 199958 is similar to the CT and MRI investigations of 2003. Both showed a left sided disc protrusion at L5/S1 causing neural compression on the left. Likewise a comparison can be made of the CT scan of 24 March 1999 with the CT scan taken on 28 January 2003. With hindsight, Dr. Mitchell’s view was that the earlier problems suffered by David Lynch (calves, legs, feet) were related to his lumbar condition.59 There was an underlying back condition and it had deteriorated.

108       The defendant submitted that the evidence of Dr. Mitchell was that prolonged driving could aggravate lower back pain.60 Further having viewed the nature of the rides shown on the video, Dr. Mitchell said that “those sorts of rides certainly could have the potential to aggravate somebody’s back pain and may contribute to …an underlying back problem.” His evidence was that it could take little to cause David Lynch’s disc problems.61

109       However although David Lynch had been experiencing some intermittent symptoms going back as far as 1995, David Lynch had been able to function in a normal manner, with no significant interference with work or other activities. From December 2002, there is recorded the consistent and rapid deterioration of the condition of David Lynch’s lower back, as evidenced in particular by his attendances with and treatment by numerous medical practitioners. His condition declined as evidenced by the reports of the chiropractor, Dr Mitchell on 23 January 2003, Dr Findeisen on 17 February 2003, Dr Brzozek who administered epidural injections in July 2003, Dr. Bower on 3 September 2003 , Mr. Speck on 13 August 2003, Mr Johnson on 3 October 2003, Dr Kinloch on 10 February 2006 and David Lynch’s admission to the Epworth Hospital in September 2003.

110       The defendant submitted that the Court should not rely on the conclusions as to causation reached by Dr Bower, Mr Johnson, Mr de La Harpe and Mr D’Urso because the histories that were provided to those doctors were incomplete as there was no reference to a pre-existing back condition.

111       In Grech v Orica62 Ashley JA stated that in making its determination the Court must consider the whole of the evidence; not just the evidence of the doctors.

The matters which the plaintiff needed to establish, in the case of each of the injuries alleged, were to be resolved upon all the evidence before the court. It was not a trial by doctors’ opinions; nor a trial in which relevant questions were to be decided on the footing, in effect, that medical opinion did not of itself provide answers to those questions.

112       Having considered all the evidence, I find that there was a dramatic change in the symptoms experienced by David Lynch after December 2002. Further Dr. Findeisen who treated David Lynch in 1999 and Mr. Speck who treated him in early 1995 point to the increased symptoms and disability which David Lynch suffered after December 2002.

113       Having considered the whole of the evidence, I am satisfied on a balance of probabilities that:

• David Lynch suffered an injury to his lower back in the course of his employment with the defendant on 27 December 2002; and

• That injury is a significant cause of the current condition of David Lynch’s lumbar spine.

Admissibility of video taken by David Lynch

114       David Lynch sought to tender a video he said he had taken on 1 January 2003.

115       The plaintiff submitted that the issue of recent invention had been put to David Lynch in cross-examination and that the DVD taken in January 2003 is now an admissible document.

116       Counsel for David Lynch, Mr. Tobin, submitted that the video was admissible for three reasons. First because at the time David Lynch made the application, David Lynch had no intention of relying upon the video because the existence of the injury and the acceptance of his claim was not disputed. That position continued until the defendant served an affidavit by Mr. Fraser (the senior legal manager employed by QBE), made 31 October 2008. 63

117       Mr. Fraser said that David Lynch lodged a claim for compensation with the defendant on 23 February 2004. The claim form was accepted by QBE and weekly payments commenced on 13 May 2004 At the time of acceptance of David Lynch’s claim for compensation, QBE was not aware of the existence of the video or circumstances referred to in Mr Yung’s statement dated 20 August 2007.

118 Mr. Fraser agreed in cross-examination that the existence of the video and the contents of Mr. Yung’s statement had been known by his company since August 2007. Mr Fraser also agreed that as a claims agent he is required to comply with the objectives of the Act. He agreed that QBE could immediately cease payments under s.114(3) of the Act if it formed the view that the worker never had an entitlement to compensation.64 He agreed that the worker’s weekly payments of compensation had not been terminated. He also agreed that QBE had not served a notice of intention to terminate payments in respect of this worker.

119       Mr. Tobin submitted that up until the time when Mr. Fraser swore his affidavit, the defendant had admitted David Lynch’s injury and paid him compensation by way of weekly payments.

120       Mr. Tobin referred to Nominal Defendant v Clements65 and R v Martin66 and submitted that the second reason why the video was admissible was to rebut the suggestion made to David Lynch in cross-examination that his claim that he had been injured on 27 December 2002 was a recent invention. Mr. Tobin submitted that the video was admissible as a prior consistent statement.

121       Mr. Tobin also submitted that David Lynch was cross-examined about the video67 and accordingly this makes the video admissible at law.

122 The defendant conceded that the issue of recent invention had been put to David Lynch in cross-examination. The defendant did not concede that the DVD was made on the date shown on the screen. The defendant objected to the tender of the video on the basis that it had not been disclosed to the defendant in accordance with subsection 5 or 10 of the Act. The DVD was in David Lynch’s possession in 2003. Section 134AB(11) of the Act provides that a medical report or other material is inadmissible on behalf of the worker if:

“(i)	it was in existence, and the worker or the worker’s legal representative was aware of it, before the expiration of 28 days after receiving the advice under subsections (7) and (8); and
(ii)	it had not been disclosed to the other party in accordance with subsection (5) or (10).

123       In Warren v Bonlac Foods Pty. Ltd.68 Kellam J. (as he then was) allowed the defendant to tender butter production records which had not been disclosed to the worker in accordance with the Act. Kellam J held that the documents were admissible in the proceeding on the basis that “at the time of the s.135A application the defendant had no reason to be aware that they were in any way relevant to the claim then made by the plaintiff”.

124       Having considered the submissions made by counsel, I am not satisfied that the DVD purportedly taken of David Lynch in January 2003 and marked for identification is admissible in evidence. The facts in this case are different from the facts in Warren v Bonlac Foods Pty. Ltd. Although Mr. Fraser did not make his affidavit until 31 October 2008, David Lynch was aware that the defendant proposed to rely on the statement of Mr. Yung dated 20 August 2007 who said that all the machinery and equipment in the defendant’s factory had been moved prior to the Christmas break. Mr. Yung had also stated that the business closed on 23 December 2002 and re-opened on 14 January 2003. The DVD was in existence at the time David Lynch received the defendant’s material which included Mr. Yung’s statement and accordingly the Act required David Lynch to disclose the DVD within 28 days.

Weekly payments of compensation

125       The defendant conceded that the defendant’s claims agent, QBE, accepted David Lynch’s claim and has paid David Lynch weekly payments.69 However the defendant submitted that the payment of compensation is non-conclusive and certainly the payment of make-up pay is anything but conclusive.

126       In Ansett Australia Ltd. v Taylor70 Ashley JA stated:

Having regard, however to the very serious consequences for the Authority or self-insurer flowing from acceptance of a claim – not only in respect of compensation payable under s.98C or s.98E, but also, potentially, with respect to s.134AB(3) and (15) – I consider that such an admission should ordinarily be regarded as very significant; albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct.

127       The defendant submitted that in this case there was evidence from Mr. Fraser that a detailed investigation did not appear to have been carried out at the time the decision was made. The Surfer’s Paradise material and the statement from Mr. Yung was only brought into existence in the latter part of 2007 and was not known or appreciated by the claims officer who made the administrative decision in 2004.

128       I accept David Lynch’s submission that although the payment of weekly compensation by the defendant is not conclusive, it is an admission of the fact that David Lynch was injured at work on 27 December 2002 and the causal connection between the work incident and his current incapacity.

129        Even though the defendant stated that he was not aware of the video or the statement made by Mr. Yung, QBE continued to make weekly payments of compensation to David Lynch even after it became aware of the video taken at Wet ‘n’ Wild and the statement made by Mr. Yung.

130       In Polochowski v Norman Smorgon & Sons Pty. Ltd.71 Gowan J stated:

In my opinion the machinery of the Act makes it possible for the employer to put an end to the weekly payments by taking certain action and at his own behalf and if he does not do that then I think that the continuation of the payments can amount to evidence of an admission that the incapacity is still existing. Of course the questions of weight will come into the matter but I am not concerned with that.

Conclusion

131       I accept David Lynch’s evidence that the injury occurred at the defendant’s new factory premises on 27 December 2002. David Lynch was a straightforward and credible witness. He was cross-examined over an extensive period of time. He made concessions where it was appropriate. He stuck to his story in a way that was credible and consistent.

132       I am satisfied on a balance of probabilites that David Lynch injured his back at work on 27 December 2002 and that the injury was a significant contributing factor to the impairment and/or incapacity to David Lynch’s lumbar spine.

133 I order that David Lynch have leave to bring a proceeding for recovery of damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985.

Statement by Simon Yung dated 20 August 2007, exhibit 5.

Exhibit 6.

Exhibit 7.

Exhibit 5.

Exhibit R.

Transcript p 203.

Transcript p 151.

Transcript p 195.

Exhibit 5.

Exhibit 5.

Transcript p 193.

Transcript p 198.

Transcript p 198 -199.

Transcript p 199 – 200.

Transcript p 199.

Transcript p 192.

Transcript p 197.

Transcript p 197.

Transcript p 205.

Transcript p 258.

Exhibit 2.

Exhibit 2.

Affidavit made 27 November 2008, exhibit D.

[2008] VSCA 260

Exhibit E.

Exhibit D.

Exhibit S.

Exhibit S.

Exhibit S.

Exhibit 12.

Exhibit 12.

Exhibit 12.

Exhibit 12.

Transcript p 97 and pp114-115 (re-examination).

Exhibit G.

Exhibit H.

Exhibit J.

Transcript p 115.

Exhibit F.

Exhibit 10.

Exhibit 9.

Exhibit L.

Exhibit G.

Exhibit H.

Exhibit J.

Exhibit M.

Exhibit N.

Exhibit 11.

Transcript p.63.

Exhibit 3.

Exhibit R

Exhibit R

Transcript p 129.

Exhibit R.

Transcript p 201.

Exhibit 12.

Exhibit 9.

Mr. Mitchell’s clinical notes, exhibit 13.

Transcript p 86.

Transcript p 99.

Transcript pp101-2.

(2006) 14 VR 602, 611.

Exhibit 8.

Transcript p 260.

(1960) 104 CLR 476.

(1996) 65 SASR 590.

Transcript p 162.

Unreported, Supreme Court of Victoria, 6 October 2003

Letter by QBE Mercantile Mutual dated 29 March 2004, exhibit P.

[2006]VSCA 171, para 40

Unreported, Supreme Court of Victoria, 11 December 1968