Marchetti v Victorian WorkCover Authority
[2017] VCC 1085
•11 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-02514
| CRAIG MARCHETTI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 July 2017 | |
DATE OF JUDGMENT: | 11 August 2017 | |
CASE MAY BE CITED AS: | Marchetti v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1085 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to spine in 1992 – application pursuant to s135A of the Accident Compensation Act 1985 – determination pursuant to s135AC of the Accident Compensation Act 1985 as to whether the application for determination had been made before the expiration of three years after the date the worker’s incapacity had become known – whether the worker had suffered a “serious injury” as defined
Legislation Cited: Accident Compensation Act 1985, s135A and s135AC
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; AEP Industries Australia Pty Ltd v Mahmoud (2007) 17 VR 144; Papercorp Pty Ltd v Nicolaou; Howden v Ansett Australia [2006] VSCA 143; Paget v JLT Worker’s Compensation Services Pty Ltd [2003] 12 VR 692; Morris & Joan Rawlings Builders and Contractors [2010] 30 VR 444; Smith v Canberra Press Pty Ltd [2009] VSCA 200
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Britbart QC with Mr C O’Sullivan | Adviceline Injury Lawyers |
| For the Defendant | Ms R Annesley QC with Mr R Lewis | Wisewould Mahoney |
HIS HONOUR:
1 On or about 1 October 1992, the plaintiff, Craig Marchetti, alleges that he suffered injuries when he fell from a truck in the course of his employment with Frank Marchetti & Sons Pty Ltd (“the Company”). The company was operated by the plaintiff’s uncle.
2 In this application, the plaintiff seeks leave to issue a proceeding to recover damages in respect of injuries suffered by him in that accident. The plaintiff’s right to do so is governed by the provisions of s135A and s135AC of the Accident Compensation Act 1985 (“the Act”).
3 Section 135A, in effect, provides that a worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of employment if the injury is a serious injury.
4 The term “serious injury” is defined in the Act, insofar as is relevant to this application, as:
“serious long-term impairment or loss of a body function.”[1]
[1]Section 135A(19)
5 Insofar as it is relevant, s135AC of the Act provides:
“Despite anything to the contrary in the Limitation of Actions Act 1958, proceedings in accordance with section 135 or 135A must not be commenced—
(a) subject to the Limitation of Actions Act 1958, unless paragraph (b) applies, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before 1 September 2000; or
(b) if the cause of action arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before the expiration of 3 years after the date the incapacity became known.”
(My emphasis)
6 Here, the alleged cause of action arose on 1 October 1992.
7 On 27 October 2015, the plaintiff made an application to the Authority pursuant to s135AC of the Act, alleging that he had suffered a serious injury in the course of his employment on 1 October 1992.[2]
[2]Plaintiff’s Court Book (“PCB”) 7
8 It follows that, by reason of the provisions of s135AC(b), the plaintiff is barred from commencing a damages claim relating to those injuries unless the incapacity arising from those injuries suffered in the accident was not known until after 26 October 2012.
9 In Papercorp Pty Ltd v Nicolaou,[3] the Court of Appeal held that the words “the incapacity arising from the injury” in s135AC(b) should be taken to mean any consequence, known to the worker, deriving from compensable injury, whether constituted by pain or suffering consequences, or pecuniary disadvantage, or both, which would found a successful serious injury application.[4]
[3][2006] VSCA 143
[4](Ibid) at paragraph [33]
10 The onus is on the plaintiff to establish that he was not aware of his incapacity arising from injury suffered in the accident on or prior to 26 October 2012.[5]
[5]Morris & Joan Rawlings Builders and Contractors v Rawlings [2010] VSCA 306 at paragraphs [9] to [31]
11 Put another way, the plaintiff must establish that his application was made within three years of the date that the serious injury incapacity became known to him.
12 In determining whether the plaintiff has satisfied the criteria in s135AC, a two-step process is required to be followed by the Court:
(a)First, identify what the worker knew in relation to his injury at the relevant date (here, on or prior to 27 October 2012); and
(b)Second, having determined what the worker knew, the Court must determine whether, as a matter of fact and degree and value judgment for the judge, these known facts constitute knowledge of “serious injury incapacity” as explained in Humphries & Anor v Poljak.[6]
[6][1992] 2 VR 129; AEP Industries Australia Pty Ltd v Mahmoud (2007) 17 VR 144 at paragraph [11]; Papercorp Pty Ltd v Nicolaou; Howden v Ansett Australia [2006] VSCA 143 at paragraph [50]
13 In Humphries, the Court of Appeal stated that:
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? Beyond such guidance it is, we think, not possible to go.”[7]
[7][1992] 2 VR 129 at paragraph [8] per Crockett and Southwell JJ
14 The parties were in agreement that the Court is to look at the worker’s actual subjective knowledge of his incapacity.
15 The Court must decide what the worker knew about the extent of, and probable duration of, his incapacity arising from the compensable injury at a particular time.
16 However, the fact that the worker may know of the fact and nature of his incapacity but not subjectively know that such incapacity amounts to a “serious injury” (as defined in the Act) until after the relevant date, does not matter. It is sufficient to bar the claim if the worker knew, by the relevant date (27 October 2012), of facts which, viewed objectively, constituted a serious injury incapacity.[8]
[8]AEP Industries Aust Pty Ltd v Mahmoud (supra) at paragraph [28]; Smith v Canberra Press Pty Ltd [2009] VSCA 200 at paragraph [8]
17 Nor is it relevant that the worker may not have appreciated that he had a cause of action arising from the injuries.[9]
[9]Smith v Canberra Press Pty Ltd (supra) at paragraphs [10] to [12]
18 The issue before the Court is whether the plaintiff knew of the relevant incapacity on or before 27 October 2012 (that date being three years before the date of his application).
19 I consider that what I am required to determine is:
(a)What was the plaintiff’s subjective knowledge as to the extent and probable duration of his compensable injury on or prior to 27 October 2012?
(b)Whether, having regard as to what the plaintiff subjectively knew about his injury, those known facts, viewed objectively, constitute knowledge of serious injury incapacity as explained in Humphries.[10]
[10]Supra
Circumstances of the injury
20 In the application form dated 27 October 2015,[11] it was stated that the plaintiff had suffered injury to his lower back and neck on 1 October 1992 whilst loading carpet onto a truck. He was disembarking from the truck when his foot got between the carpet and the side gate of the truck. He fell backwards and hit his shoulder and neck on the toolbox on the truck, and his lower back on the combing rail. Because his leg got caught in the gate, the worker was left suspended hanging, and required assistance to get down.[12]
[11]PCB 7
[12]PCB 7
21 The defendant did not take issue with the circumstances of the alleged accident, nor with the date upon which it was alleged to have occurred.
Post injury
22 It was common ground that, following the accident, the plaintiff was absent from work for about one week. In his 2015 affidavit, he deposed that:
“I returned to work on light duties. For about six months I was doing paperwork and basic administrative tasks in the office.”[13]
[13]PCB 14
23 That statement might cause one to understand that, after about six months, he returned to driving work and ceased administrative work. However, in his vive voce evidence, the plaintiff stated that from the time he first returned to work in 1992 until he ceased work in 2000, about 90 per cent of the work performed by him for the Company was administrative paperwork. Only about 10 per cent of his work was driving, and nearly all of that was driving a truck locally, and relatively short distances, commencing about six months after the accident. In short, save for a couple of trials, he never returned to interstate, long-haul transport, as had been his preferred and chosen occupation before the accident.[14]
[14]Transcript (“T”) 64
24 He said that the pain in his neck and back was exacerbated if he sat for too long and so he tried to avoid those long-haul trips.[15]
[15]PCB 14
25 It was not in issue that the plaintiff continued at work with the Company, performing those light duties, until 2000. Since ceasing work in 2000, he has never returned to any paid employment.[16]
[16]Ibid
Background
26 The plaintiff was born in February 1961.
· As at the date of the accident, 1 October 1992, he was aged thirty-one.
· When he ceased work in 2000, he was aged thirty-nine.
· On 27 October 2015, when he brought his application under s135AC, he was aged fifty-four.
· He is currently aged fifty-six.
27 He was educated up to Year 10 and after finishing school, completed an apprenticeship in marine diesel mechanics for four years. After completing that, he worked for a transport company, driving trucks and performing mechanical maintenance. He worked in that capacity for some nine years.
28 He then commenced working for the Company.
29 At the time of the accident, the plaintiff was married and had two children, born in about 1988 and 1994 respectively.
30 Before the accident, he was in good health and had not experienced problems with any part of his spine. I accept that he enjoyed his work as a long-haul transport driver and was fit and capable of performing it.
Treatment with respect to the Plaintiff’s spine since the accident
31 Following the accident, the plaintiff’s uncle/employer encouraged him to see a chiropractor whose name, he believes, was Reggars. The plaintiff recalled that the chiropractor arranged for him to have an x-ray of his spine. In his 2015 affidavit, he deposed that his understanding was that he had suffered a fracture of his lower back. In vive voce evidence, he said that it was the chiropractor who had told him that. There was no evidence from Reggars or any chiropractor who had seen the plaintiff at that time, and no x-ray taken at that time was tendered. There was no medical evidence confirming that any fracture had been suffered at the time. Nevertheless, I accept that that was what the plaintiff was told and what he believed.
32 The plaintiff deposed in his 2015 affidavit that he was aware that WorkCover records show that he saw a Dr Hogg in December 1993, but he could not remember that name. No material or records of Dr Hogg were tendered by either party.
33 The plaintiff was later treated by masseurs, Mr and Mrs Surgeoner and a Mr Gibbons. He has received chiropractic treatment from Dr Don-Leonard and Dr Portelli. He saw a Dr Dinh, who treated him with acupuncture and massage.
34 Since 2002, the plaintiff has attended the Coolaroo Clinic. He saw various doctors there regarding neck and back pain. His regular general practitioner since August 2009 has been Dr Slesenger of that clinic. Over various periods between 2000 and 2008, he also saw a general practitioner, Dr Louis, at Alexandra, but does not believe that he consulted him about neck or back pain. Rather, he saw Dr Louis about depression.
35 In May 2014, Dr Slesenger arranged for the plaintiff to undergo an MRI scan of his low back. He was shortly afterwards referred to a neurosurgeon, Mr Nicholas Maartens.
36 Mr Maartens recommended regular physiotherapy and considered that, if he wanted to do something about his back pain, he should consider undergoing an L5-S1 fusion.
37 Later, in about September 2014, Dr Slesenger referred the plaintiff to an orthopaedic surgeon, Mr John Choi, for a second opinion. A report from Dr Choi dated 5 September 2014 was tendered.[17] The plaintiff deposed that, later, Mr Choi advised him to undergo surgery to his lower back and to his neck. He understood that Mr Choi wrote to WorkCover seeking payment for these surgeries. That request was denied, and the matter was referred to a Medical Panel which examined the plaintiff in August 2015 and considered that, although the neck and lower back injuries were still work related, the Panel did not consider that it was reasonable for him to undergo the proposed surgeries. At the time of his 2015 affidavit, the plaintiff deposed that he was then considering whether to have the surgeries performed in the public health system. He deposed that he thought that was the path he would soon need to take. In fact, he has not opted to have surgery to his neck or back to date.
[17]PCB 55C
38 In his second affidavit, sworn in April 2017, the plaintiff deposed that he has continued to see his general practitioner for prescriptions, continued to have regular remedial massage treatments and continued with sessions with his chiropractor.
39 The plaintiff stated in his 2017 affidavit that he continued to take Panadeine Forte, Panadol and Nurofen for pain relief. In his viva voce evidence, he said that he took Panadeine Forte when it was required or when he needed to. He said that he did not take pain-killing medications too regularly, because they led to him being constipated and nauseous, and believed that in the long term, they were bad for his kidneys.
Non-work-related medical conditions
40 For completeness, I outline other medical conditions suffered by the plaintiff over the relevant period. However, I note that neither counsel submitted that these had relevance to the decision to be made in the plaintiff’s case.
41 In 2010, the plaintiff was diagnosed as suffering from an acoustic neuroma. He underwent surgery to his brain and later, underwent further surgery after a cerebral spinal fluid leak. As a consequence of this, he has suffered hearing loss on his right side. He has recently been advised that he has a similar tumour in the same area which is not able to be operated on. If it grows, he has been told that he will need radiotherapy but so far, it has not grown.
42 In 2000, he suffered a psychological breakdown when his marriage broke up. He has suffered Depression since that time and has received psychiatric and psychological treatment, as well as anti-depressant medication. He ceased that medication in about 2014 but from time to time takes Deptran for increased anxiety.
43 In October 2014, he underwent a left knee arthroscopy after suffering left knee pain. The knee improved following that procedure.
Injuries suffered in the work accident
44 Normally in the case of a serious injury application, the evidence of medical practitioners as to the nature, extent, and the prognosis concerning the claimed injury, is crucial evidence. However, here, that is not the case.
45 The defendant here concedes that:
·The plaintiff did suffer an injury to his spine in the 1992 accident;
·The plaintiff does have a serious injury as defined in the Act at the current time;
·The plaintiff would have qualified as having a serious injury at least as long ago as 2000, that is, since well before October 2012.
46 Given the fact that the plaintiff has suffered a serious injury in the course of his employment is not in issue, I do not intend to deal with the medical reports relating to diagnoses of his injury in any great detail.
47 In July 2014, Dr Nicholas Maartens, neurosurgeon, noted that the lower back pain was overwhelmingly the predominant pain. He noted an MRI scan taken in May 2014 demonstrated that the plaintiff had quite advanced disc degeneration at L5-S1 and a marked loss of disc height. The exiting neural foramina were also quite narrow. He suggested that if the plaintiff wanted something done about his back pain, he would advise an L5-S1 disc fusion.[18]
[18]PCB 40
48 In September 2015 and July 2017, a chiropractor, Dr Portelli, considered that the plaintiff had suffered serious and permanent injury to his neck and spine as a result of the work injury. His diagnosis was one of discogenic compression injury and direct trauma to the spine, including the cervicothoracic and lumbar pelvic spine.[19]
[19]PCB 43, 47
49 In September 2014, Dr Choi, orthopaedic surgeon, considered that the plaintiff was suffering from a chronic disc degeneration at L5-S1, with irritation of the bilateral nerve roots.[20]
[20]PCB 55D
50 A further report from Dr Choi, dated 22 October 2014, contains his opinions that the plaintiff suffered from symptomatic disc degeneration with bilateral foraminal narrowing leading to bilateral radiculopathy and chronic lower back pain with evidence of L5-S1 degeneration and loss of intervertebral joint height. Further, he considered that the plaintiff had a two-level (C5-7 and C6-7) spondylitic disc degeneration with radiculopathy affecting his shoulders and arms bilaterally. He discussed with him the prospect of two-level fusion of C5-6 and C6-7, and also an L5-S1 lumbar fusion.[21]
[21]Defendant’s Court Book (“DCB”) 33A
51 In May 2017, Professor Richard Bittar, neurosurgeon, noted that an MRI scan of the plaintiff’s cervical and lumbar spine performed in February 2017, demonstrated multi-level degenerative disc and facet joint disease in both areas of the spine. He considered that at L5-S1, the intervertebral disc was “almost completely collapsed”. His diagnosis was of aggravation of cervical spondylosis, cervicogenic headaches, and aggravation of lumbar spondylosis. He considered that the injury occurring at work in October 1992 remained a significant contributing factor.[22]
[22]PCB 58-59
52 The defendant tendered medical reports from Mr Michael Troy, general surgeon, Mr Clive Jones, orthopaedic surgeon, and a further report from Dr Choi.
53 In April 2006, Mr Troy’s diagnosis was that the plaintiff had had a soft tissue injury to the lower lumbar spine which apparently related to an incident in the workplace in 1999. That reference to the year 1999 is plainly incorrect. He noted the history provided by the plaintiff was that a chiropractor had told him that he had a hairline fracture in his back. Mr Troy did not consider that the plaintiff was suffering from any injury where employment remained a contributing factor. He considered that the plaintiff suffered from age-related degenerative changes in his back.
54 In September 2015, a Medical Panel reported that it was of the opinion that the plaintiff was suffering from persistent dysfunction of the lumbar spine and referred pain to the lower limbs without radiculopathy, secondary to aggravation of lumbar spondylosis relevant to the claimed lower back injury. Further, the Panel was of the opinion that the plaintiff suffered from persistent dysfunction of the cervical spine and referred pain to the shoulder blades and upper extremities, without radiculopathy, secondary to aggravation of pre-existent cervical spondylosis, relevant to the claimed neck injury.[23]
[23]DCB 8
55 In March 2015, Mr Clive Jones, orthopaedic surgeon, reported that the plaintiff was then in receipt of a Disability Support Pension, that he had not worked for fifteen years, and there appeared to be no prospect that he would resume employment, no matter what treatment was carried out. He considered that the plaintiff was likely to remain a disability support pensioner permanently. He considered that any input from the 1992 work injury must have now long subsided. He did not expect Mr Marchetti to work again.
56 In May 2017, Mr Jones considered that the plaintiff’s presenting condition appeared to be degenerative change in the cervical and lumbar spine, with some exaggeration of the symptom level. He did not believe that the plaintiff was then suffering from a work-related injury.
57 A report from the general practitioner, Dr Joseph Slesenger, dated 17 July 2012, referred to the plaintiff’s original injury being a fractured spine with ongoing spinal pain. With regard to that diagnosis, there was no evidence confirming any fracture and I am not satisfied on the evidence before me that there was any such fracture.
The Plaintiff’s knowledge of incapacity on or prior to 27 October 2012
58 In a case where an application is brought by a plaintiff in respect of an injury suffered some twenty-five years earlier, it is not surprising that the plaintiff’s memory of events, or the order of such events, is somewhat poor.
59 Here, in a number of instances, the plaintiff’s memory of what symptoms had been experienced by him, and when, was inconsistent with some of the clinical notes made by treating practitioners and medico-legal practitioners at the time of, or soon after, examinations.
60 I regarded the plaintiff as a witness who did attempt to give his evidence honestly. However, I did not regard him as a reliable witness regarding much of his evidence as to what symptoms were suffered by him at various times between 1992 and October 2012. In saying that, I am not being critical of him. The time between the accident and the hearing was substantial.
61 However, where there were inconsistencies between the plaintiff’s memory of the extent and nature of his symptoms at different times and the contemporaneous notes of medical practitioners concerning the histories of symptoms provided by him, I consider that the practitioners’ notes are likely to be the more accurate and reliable.
62 The evidence of the plaintiff’s subjective knowledge of his incapacity must inevitably come from his own accounts as appear in his affidavits in support of his application, his vive voce evidence, and from histories given to doctors at various times (both before and after 27 October 2012, but relating to his knowledge before that date).
63 Having considered all of the relevant evidence I consider that the subjective knowledge of the plaintiff regarding his incapacity on or prior to 27 October 2012 can be summarised as follows:
(a) Prior to the accident, the plaintiff was an active sportsman, regularly engaging in basketball, martial arts, gym and social football. He never returned to such activities after the accident, because they caused aggravation of his pain.[24]
[24]T22, 48, 49, 50, 51 and 79
(b) He had previously enjoyed hunting, an activity he ceased in the mid-2000s as his back pain was aggravated by walking on uneven ground.[25]
[25]T52
(c) He had previously enjoyed water skiing but had ceased after the accident, because it caused increased back pain. He has not enjoyed water skiing since at least 2010.[26]
[26]T54
(d) He had performed relatively heavy manual labour for some eleven years before the accident, working 70 to 80 hours per week and regularly lifting weights in excess of 50 kilograms.[27] He had never been able to return to such work after the accident.
[27]T55
(e) He knew that, prior to the accident, he had been a fit, strong and resilient thirty-one-year-old.[28]
[28]PCB 52
(f) He knew that the circumstances in which he was injured in October 1992 were that, having completed the loading of a truck, he climbed over a 6‑foot gate on the side of the truck, caught his foot between the load and the centre bar of the gate, fell backwards, “violently” hit his shoulder and neck on the toolbox on the truck, hit his lower back “extremely hard and at great force” on the combing rail of the truck, and as a result of his foot being caught, was left suspended, hanging about a metre off the ground.[29]
[29]PCB 11, 42 and 53
(g) Immediately after the accident, he had felt an acutely sharp pain which radiated from his lower back into his legs, and excruciating pain in his shoulder blades and into his neck and base of his skull.[30]
[30]PCB 53
(h) He knew that he had injured his neck and lower back in the accident.[31]
[31]PCB 12
(i) Soon after, he saw a chiropractor, who arranged for an x-ray of his spine and told the plaintiff that he had suffered a fracture of his lower spine.[32] The plaintiff accepted that this was so.
[32]PCB 12
(j) After the accident:
· he received massage treatment from Charlie Surgeoner, Mary Surgeoner and Keith Gibbons;
· he received chiropractic treatment from Dr Sharon Don-Leonard and Dr Michael Portelli;
· he received acupuncture and massage treatment from Dr Tim Dinh;[33]
[33]PCB 12
· he attended one or other of the doctors who carried on practice at the Coolaroo Clinic for consultations, medication prescriptions, and referrals up to and beyond 27 October 2012 for his back and neck.[34]
[34]PCB 13
(k) From the time of the accident, his pain affected his mood and made him grumpy.[35]
[35]T63
(l) He had had two days off work following the accident and then returned to work on light duties. For the next six months, he did paperwork and basic administrative tasks in the office of the company. He then worked driving smaller trucks locally on occasions (10 per cent), but mainly doing office work (90 per cent). From the date of the accident in 1992, save for a couple of trials, he was never able to return to his chosen and preferred occupation – that of driving large long-haul trucks – because of low back and neck pain.[36]
[36]T64
(m) He told Dr Maartens that he had suffered back pain ever since the accident, and that he suffered a fracture at L5 in his low back.[37]
[37]PCB 40, 42
(n) His belief, from 1992 until at least 2012, was that he had fractured his lower spine in the accident.[38]
[38]T66-7; DCB 25-9, 34-5; PCB 34
(o) On 8 October 1998, he told Dr Thompson of the Coolaroo Clinic of lumbar back pain.[39]
[39]PCB 20B
(p) He told Dr Choi that since the accident, he had had intermittent pain episodes relieved with non-operative treatment including massage.
(q) He ceased work with the defendant in about March 2000. He has not worked in any capacity since then. His marriage had broken up by that time. He suffered from Depression. He told Dr Slesenger that he had ceased work in 2000 due to a combination of persistent low-back pain and the psychological effects of a marital break-up.[40]
[40]PCB 29
(r) He considered returning to work in about 2002 but because of his back, he was unable to do so.[41]
[41]T70
(s) He had last driven a truck in about 2000.[42]
[42]DCB 18
(t) In April 2006, the pain in his back at times was sufficient to make him feel nauseated.[43] His walking was affected by pain.[44] He complained to Mr Troy of his pain, his limited sitting tolerance, his feelings of nausea, and coughing and sneezing causing shooting pain into his right leg and knee which had occurred at the time of the accident and had continued to occur occasionally.[45]
[43]DCB 2; T103
[44]DCB 2; T104
[45]DCB 2
(u) He was medicated with Deptran for some years, commencing prior to 2006, to help him with his “low-back pain” and “depressed mood”, and his “chronic back pain”.[46]
[46]PCB 20B
(v) Since at least 1997, he had on occasions been prescribed Panadeine Forte for “extreme pain”.[47] He continued to take Panadeine Forte for his pain in August 2007.[48] Around 2008, he said he could have been taking Panadeine Forte once a week if his pain was “really, really bad”. Otherwise he said he would try and control it with Panadol and Nurofen.[49]
[47]T63-4
[48]PCB 20C
[49]T87
(w) The pain in his back and neck was constant (although variable). As at 2008, he was taking Panadol or Nurofen very regularly,
(x) In February 2007, Dr Liang of the Coolaroo Clinic, recommended massage treatment to help the plaintiff reduce pain, and to make him able to be more independent with basic self-care.[50]
[50]PCB 27
(y) He told Dr Slesenger in May 2015 that, in the accident, he had suffered injuries to his low back, upper back and neck, and that his spinal injuries had persisted and that he had had ongoing pain.[51]
[51]PCB 21-2
(z) He told Dr Slesenger that he had had physiotherapy since the injury and that he underwent massage and stretching.[52]
[52]PCB 22
(aa) His social life had diminished after the accident and never recovered.[53]
[53]T57-8
(bb) He had needed to be careful when performing household chores to avoid exacerbating pain. He said he had had to teach himself how to manage such chores.[54]
[54]T80
(cc) After the accident, he had been restricted by pain in his ability to play with his children.[55]
[55]T58
(dd) His sleep had been disturbed after the accident. Before October 2012, he was woken by pain four to five times per night.[56]
[56]T62
(ee) In March 2012, he had been referred by to Dr Dinh (acupuncture) for back pain.[57]
[57]PCB 29A
(ff) In April 2012, he required massage, physiotherapy and acupuncture for his back pain.
(gg) He required regular massage treatment on a monthly or weekly basis since at least 1997 to decrease his pain levels.[58] His sitting tolerance was limited to 30 minutes.[59]
[58]T71
[59]DCB 2; T71; T103
(hh) As at early 2012, he suffered from sciatic pain in his legs a couple of times per week.[60]
[60]DCB 2; T98
(ii) His attempts to return to distance truck driving were unsustainable.[61]
[61]T64
(jj) He had had physiotherapy since the injury.[62]
(kk) In May 2015, he reported that his life had been blighted over the previous sixteen years.[63]
[62]PCB 22
[63]PCB 25
64 I accept the defendant’s submission that the plaintiff’s pain and suffering consequences suffered by him before October 2012 would constitute a serious injury incapacity. That is, that the plaintiff’s injury and the consequences to him of it, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.
65 In summary, prior to 27 October 2012, the plaintiff subjectively knew that he had suffered injury in 1992, the consequences of which included:
· The presence of daily pain and the need for regular medication;
· His inability to return to a job which gave him particular enjoyment and pleasure;
· His loss of capacity to engage in sports;
· His loss of social interaction;
· Sleep disturbance; and
· The need for weekly massage therapy over a period of some fifteen years.
66 I am satisfied that, on physical grounds, the plaintiff lost his capacity for employment well before October 2012 and that he was aware of that. I am conscious that he did suffer from Depression following the breakdown of his marriage in about 2000. However, I accept that on physical grounds alone, his work capacity had been lost at least by 27 October 2012 and probably earlier. I note the plaintiff’s belief was that his inability to work from 2000 was partly due to his Depression and partly due to his physically-based pain symptoms.[64]
[64]T70
67 Much of the plaintiff’s evidence and the submissions made on behalf of him concerned matters relating to the alleged deterioration of the plaintiff’s condition after about 2013. I accept that his symptoms do appear to have worsened somewhat in about 2013 to 2014. However, such deterioration and the extent of it are not the issues to be determined here. What I am required to consider is when the plaintiff first subjectively knew of facts concerning his incapacity caused by his injuries suffered in the subject accident which, when viewed objectively, constituted serious injury incapacity as explained in Humphries.
68 Whether his incapacity worsened after October 2012 is not to the point.
69 I accept that after the plaintiff was advised, in about 2014, that he might require fusion surgery to his lumber and cervical spine, he would have appreciated that his injuries were worse than he had previously known or suspected.
70 However, the relevant test does not principally involve consideration of what the plaintiff knew about his injuries and incapacity arising from them after 27 October 2012. The test centres upon what he knew of his incapacity before that date and whether, viewed objectively, the facts known by him constitute knowledge of serious injury incapacity. That determination has been described as “a matter of fact and degree and value judgment for the judge”.[65]
[65]AEP Industries Australia Pty Ltd v Mahmoud [2007] VSCA 203 at paragraph [9]
71 I was referred by counsel to a number of decisions in which the Court of Appeal has considered claims involving s135AC of the Act. I have concluded that save for principles of law previously set out, these cases turned on their own facts.
72 Senior Counsel for the plaintiff referred me to the case of ACN 005 565 926 Pty Ltd v Snibson,[66] as being a decision with many parallels to this case. I found that its facts were very different to this case, not the least being that at a time three years before Snibson’s application was made, he was still in employment, albeit on reduced hours.
[66][2012] VSCA 31
73 Looking at the current matter objectively, I consider that, had the plaintiff brought an application under s135AC at any time after about 2000, he would have succeeded in establishing that his compensable injury in October 1992 was a serious injury as defined.
74 Taking into account all of the evidence in the case, I am not satisfied that the plaintiff has discharged the onus of establishing that the serious injury incapacity arising from the 1992 injury was not known by him until after 27 October 2012. It follows that I am not satisfied that an application for a determination by him under s135A(2B) has been made to the Authority before the expiration of three years after the date the incapacity became known to him.
75 It follows that, by reason of the provisions of s135AC, the plaintiff is not permitted to commence a proceeding to recover damages in respect of injuries suffered by him in the accident and his application is dismissed.
76 I shall hear the parties in regard to any consequential orders sought.
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