Nave v The Herald and Weekly Times Limited
[2015] VCC 446
•20 April, 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-03471
| NICHOLAS RAYMOND NAVE | Plaintiff |
| v | |
| THE HERALD AND WEEKLY TIMES LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 -12 March, 2015 | |
DATE OF JUDGMENT: | 20 April, 2015 | |
CASE MAY BE CITED AS: | Nave v The Herald and Weekly Times Limited | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 446 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation; serious injury application
Catchwords: Limitation provisions; time of knowledge of incapacity
Legislation Cited: Accident Compensation Act 1985, s135A, s135AC(b)
Cases Cited:Morris & Joan Rawlings Builders and Contractors v David Morris Rawlings [2010] VSCA 306; Paper Corp Pty Ltd v Nicolaou [2006] VSCA 143; AEP Industries Aust Pty Ltd v Mahmoud (2007) 17 VR 144; Paget v JLT Workers Compensation Services Pty Ltd and Glenelg Shire Council [2005] VSCA 144; Edwards v McSaveney & Anor [2005] VSCA 252
Judgment: For plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R Moore QC with Mr R Forsyth | Patrick Robinson & Co |
| For the Defendant | Ms G Cooper | Wisewould Mahony |
HER HONOUR:
1 Mr Nicholas Nave began working for the Herald and Weekly Times in May 1986, aged eighteen. For the next 26 years, he worked conscientiously and with unquestioning loyalty for that company. He was devastated when his employment was terminated in July 2011. This was expressed to be due to the company being unable to provide suitable employment for him, medical advice being to the effect that he was unable to return to full duties for the foreseeable future as a result of his medical incapacity from low back strain and occupational dermatitis[1].
[1]Exhibit H referring to content of Exhibit G. The occupational dermatitis has restricted alternative duties available, as his hands and forearms have reacted to contact with printing chemicals, and gloves have proved ineffective.
2 It is the history of his low back injury, and the application of legal constraints imposed by the history of the Accident Compensation Act 1985 (“the Act”), which are the subject of the current application.
3 There is no issue that over the course of his employment with the defendant Mr Nave suffered injury to his low back. Work duties or incidents which occurred after 20 October 1999 and contributed to his low back condition have been the subject of an application under s 134AB of the Act, and are not in issue here[2].
[2]The application was run and defended as if a distinction would have been apparent to Mr Nave as to the consequences of his original injury rather than to the various exacerbations and aggravations he has suffered.
4 The first injury to his low back, however, occurred in 1993, when to bring a claim for damages a worker was required to satisfy s 135A of the Act then in force. It was not until May 2013 that Mr Nave made application under s 135A, and it is that application which is now before the court. Due to the timing of the injury and of the application, a claim for damages for that injury will be barred unless he satisfies the limitation of actions provision in s 135AC(b).
5 Under s135AC(b) of the Act, a worker cannot bring a claim for damages 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 s135A(2B), has been made to the Authority or a self-insurer before the expiration of three years after the date the incapacity became known.
6 It is conceded by the plaintiff that an application for a determination under s135A(2B) was not made until 9 May 2013 .
7 The defendant accepts that the plaintiff suffered an injury to his low back in 1993 which now satisfies the definition of a “serious injury” under s 135A, namely that he had suffered serious long-term impairment of the function of his low back. It also accepts that the serious injury incapacity of his low back injury was not known until after 12 November 1997. It argues however that his incapacity from the 1993 injury had become known more than three years before his application was made, in that he had knowledge of facts which, viewed objectively, constituted serious injury incapacity.
8 The sole issue to be decided in this case, therefore, is whether Mr Nave’s incapacity had become known more than three years before the date of his application under s 135A(2B). He will be precluded from bringing a claim for damages in respect of the 1993 injury if, prior to 9 May 2010, his serious injury incapacity from that injury had become known.
Principles to be applied under s 135AC(b)
9 The plaintiff bears the burden of proving that the incapacity (from the 1993 injury) was not known prior to 9 May 2010[3].
[3]Morris & Joan Rawlings Builders and Contractors v David Morris Rawlings [2010] VSCA 306 at [31]
10 An application will be barred by operation of s135AC(b) if the worker had knowledge of the incapacity arising from his pre-12 November 1997 injury more than three years before the date of the making of the application. The incapacity being spoken about is serious injury incapacity. It is sufficient to bar the claim if the worker knew of facts that, viewed objectively, constituted the serious injury incapacity. The fact that an applicant/worker does not subjectively appreciate that the injury is serious until after the relevant date is not necessarily determinative[4].
[4]Morris & Joan Rawlings Builders and Contractors v David Morris Rawlings [2010] VSCA 306 at para [36]. Also Paper Corp Pty Ltd v Nicolaou [2006] VSCA 143 at para [6]; AEP Industries Aust Pty Ltd v Mahmoud (2007) 17 VR 144, 150 at para [28]
11 The question then is what amounts to knowledge by the worker of facts that, viewed objectively, constituted the serious injury incapacity.
12 The serious injury incapacity can be constituted by consequences of pain and suffering alone or by loss of earning capacity alone or by a combination of both[5], and the worker does not need to have knowledge of the full extent of his or her incapacity but just knowledge of enough incapacity of either or both types to constitute a serious injury.
[5]AEP Industries Aust Pty Ltd v Mahmoud (2007) 17 VR 144; Papercorp v Nicolaou at para [19]
13 The question of whether the plaintiff had the knowledge of incapacity prior to the defined time is a straight question of fact and there is no element of discretion.
14 The test is as to “knowledge”, not suspicion or awareness of facts that convey information to another, but actual subjective knowledge on the part of the worker.[6] It has been said:
“In concluding whether circumstances which a judge finds were actually known to the worker mean that the worker subjectively had knowledge of serious injury incapacity, the judge’s task involves application of a template which contains elements of fact, degree and value judgment in the characterisation of that subjective knowledge.”[7]
[6]Paget v JLT Workers Compensation Services Pty Ltd and Glenelg Shire Council [2005] VSCA 144 at para [29]; Paper Corp v Nicolaou, at para [18-19]
[7]Edwards v McSaveney & Anor [2005] VSCA 252 para [21], cited in Paper Corp v Nicolaou at para [19]
15 Having decided the worker’s state of knowledge as to facts, the court must not rely simply on the worker’s subjective view of whether he had suffered serious injury incapacity, but must assess objectively in all of the plaintiff’s circumstances whether knowledge of those facts constitutes knowledge of what was actually serious injury incapacity.
The evidence
16 The evidence consisted of the affidavits and other documents tendered, as set out in the attached schedule, and the oral evidence of the plaintiff, who, after some limited further examination-in-chief, was cross-examined and re-examined.
17 In applications of this type, the credibility and reliability of the plaintiff’s own evidence is crucial. In this case, the defendant conceded that the plaintiff was a witness of truth, “doing his absolute best at all times”[8]. The defendant submitted however, that on occasion his recollection of dates was somewhat unreliable and in those circumstances I should rely on medical reports for confirmation of symptoms, time frames, and time off work.
[8]T90,lines 4-5
18 I do not accept that the plaintiff’s failure to recall every doctor he has seen, the dates of those consultations or exactly what he said in those consultations renders his evidence unreliable. On the contrary, Mr Nave appeared to me to be entirely frank in his answers, to the extent that where he said he could not remember, it was my impression that he was being careful not to agree to something which he could not remember. As in any case of this type, I have read the medical reports and taken into account that the contents of reports by doctors are usually a generally reliable but not infallible or necessarily entirely accurate record of contemporaneous accounts of symptoms[9], and may depend on the doctor’s own interpretation of what has been said.
[9]Doctors’ reports are usually reliable as a contemporaneous record of what the doctor understood he or she was being told at the time, but are often limited by time constraints, sometimes by language barriers (unlikely in this case), and may include misunderstood or incomplete accounts of symptoms or events from patients, and some interpretation by the doctor.
19 My impression of Mr Nave was that he is a man entirely without guile. He appeared to give evidence honestly and to the best of his ability, earnestly recalling as much as he could, conceding whatever matters he could recall whether or not they were against his interests, and genuine in believing what he asserted. I also accept as his counsel submitted that he probably had limited capacity to understand or fully grapple with the concepts involved in this case and behind some questions.
20 From his manner in court, and also his personal history, he appears to have a relatively simple and what some may regard as naïve approach to life. His counsel described him as unusual in the sense that he was gracious, courteous and direct in his evidence. In that he has always lived with his parents, and since leaving school had always worked for The Herald and Weekly Times Limited, his life experience seems to have been mainly limited to those two arenas. As I need to make an objective assessment of his understanding or appreciation of facts and circumstances, I regard his highly circumscribed life experience is an important factor in this case.
Plaintiff’s background and injury history
21 Mr Nave was born on 9 May 1968 and is now aged forty-six. He attended secondary school to Year 11, without finishing that year. After leaving school, he started work at The Herald and Weekly Times Limited and that has been his only employment.
22 His duties were mainly labouring tasks. He began, at age eighteen, in the marking room, marking how many papers were to go to which destination, which may have been the lightest duties of his work career but are no longer available. After a couple of years, he moved to the loading dock, where he worked until 1992, and then he became a production assistant at the defendant’s premises at Port Melbourne.
23 In 1993 Mr Nave sustained an injury to his back when moving an apparatus known as a “Christmas tree”, which was a metal stand for large rolls of paper. It fell on top of him, causing him to fall to the ground. He completed an accident report, but not a WorkCover claim. He felt pain in his low back and was treated at the company medical centre, and also by his own doctor.[10] He was put off work for four weeks initially, and he thought for another four weeks. These absences were taken as sick leave. His doctor had advised him that he should put in a WorkCover claim at the time, but when he was home on sick leave, the production manager visited his home to check on his welfare, and asked him not to put in a WorkCover claim. He did not put in a claim, because of his loyalty to the company and as he was asked not to do so.
[10]His long-time GP, Dr Jagoda, has a record of him reporting this injury to his clinic in 1994, but he was not treated by Dr Jagoda for his back condition until 2003.
24 That injury was the start of symptoms of low back pain, and he says that he never totally recovered from it, and from time to time something at work or at home would cause his back symptoms to flare up, and he would need some time off or some alternative duties.
25 When he returned to work, he was placed on alternative light duties for a period of time, then resumed his normal duties and could cope, but, at times, had some pain in his lower back area.
26 He worked his normal duties until November 1999, when, after a particular lift, he felt lower back pain and again went to his doctor and had three days off work. The work doctor sent him back to his own doctor on his return and he had two more days off before returning to work. He still took anti-inflammatory tablets. He said that he had never been without some pain in his lower back, but he continued to work and still did not want to put in a WorkCover claim because the company, he believed, had been really good to him.
27 He suffered another exacerbation in 2003, at which time he was moved from the production room to the stripping room or stripping stations. This was regarded as more restricted work, but the description of the duties, set out at length in evidence, indicates that it was still physically strenuous work which placed strain continuously on his back. He was given a chair so that he could sit down if he needed to do so, for 5 minutes breaks, but as he was still required to meet production targets and, in reality, there was still a lot of lifting involved, it was not as suitable a job as Dr Knight had described to him. Nevertheless, he did what he was directed to do as he said he really believed in loyalty to the company and giving 120 per cent. Whilst to others this may have seemed a very naïve approach, I accept that Mr Nave is entirely genuine in describing his feeling towards his employer in this way. He believed that by allowing him to take breaks by providing the chair, his employer was being good to him.
28 In 2005, he was working permanently in the stripping room, stripping paper rolls which came to him either on a motorised cradle at about chest height, or on the ground where he had to lean over and roll them. In June 2005, he sustained a further injury to his lower back when having to strip a roll urgently as it was needed on the production floor. This roll was on the ground and not in the motorised cradle and he had to manually push it to turn it so as to get all the covering paper off. Once that was done, he had to push the roll along the floor towards the forklift and, as he was doing this, he suffered a sudden, sharp pain in his back and right leg. Following that incident, he made a WorkCover claim, although reluctantly. The claim was accepted, however by September 2005, his weekly payments were terminated.
29 In about November 2005, he commenced a graduated return to work at the stripping station and eventually resumed full-time stripping station duties. He continued at those tasks full-time, but having regular physiotherapy or acupuncture treatment until August 2007.
30 On about 21 August 2007, there was a further incident when he was stripping a roll. While he was twisting to throw paper in the bin behind him, he had a severe episode of right leg and lower back pain so bad that his supervisor immediately sent him home. He attended Dr Jagoda and was off work for a couple of weeks, returning to the same stripping duties in September 2007. He was told by his employer to lodge a further WorkCover claim for that episode, so he did. A further statement was taken from him by another investigator, dated 2 January 2008.
31 Between 2007 and 2010, he continued working at the stripping station at the same duties. In 2009, he told Dr Wyatt that, after the flare-up of 2007, his back had returned to his pre-2007 condition. From time to time, he would have further flare-ups of back pain that affected his ability to work for short periods of time, but each time he returned to full-time duties.
32 Circumstances changed, however, in 2010, when a bar was installed between where he was to stand and where the roll of paper would be delivered by the automated system. The position of the bar increased the amount of forward bending and reaching required of him to do the stripping duties. He found that posture caused him further back pain, commencing in about June 2010 and gradually becoming worse until December 2010, when the twisting and reaching was getting too much for him and he was in what he described as terrible pain by the end of his shifts and was unable to continue to work.
33 In about December 2010, he could not drive because of the extent of his pain and his sister drove him to a local doctor as he could not get to see Dr Jagoda. By later that month, he was sent back to Dr Jagoda and a WorkCover certificate was given. He remained off work from that time onwards, although he says, and I accept, that he not only hoped but expected to recover sufficiently to return to his full-time duties in the stripping room, as he had been able to do after each previous exacerbation.
34 However, in March 2011, Dr Sleigh, the new company doctor, assessed him. In April 2011, he received a letter[11] stating that, as he would never be able to return to his original production assistant duties, and it was likely that the stripping station duties would also be unsuitable for his back condition, as they had caused three exacerbations – in June 2010, 31 July 2010 and December 2010 and if he returned to them there was risk of further injury to his back, the company was unable to provide other suitable duties. He says, and I accept, that he asked for a meeting to discuss other duties that might be suitable for him, as he was very distressed at receiving this letter, but the company would not discuss other possibilities. He then received a letter dated 19 May 2011 stating that his employment was to be terminated as at 9 July 2011[12].
[11]Exhibit G
[12]Exhibit H
35 Mr Nave says, and I accept, that he had always believed that he had long-term employment with the defendant which was likely to continue until he turned sixty-five. He expected they would treat him as the loyal hard worker that he believed himself to be. He says that he was devastated by the news that his employment was ended because of his injuries, and it was only then that he realised that as a result of his injuries he was unlikely to be able to work at any other employment.
Medical evidence as to his symptoms and capacity
36 The plaintiff was originally treated for his back by GP Dr Anderson, but since January 2004 by Dr Jagoda. In 2005 he reported[13] on the plaintiffs symptoms, that he had recommended laser acupuncture, that progress had been slow after a June 2005 exacerbation, that there had been referral t Mr Johnstone and to Dr Thomas, and that he was not yet fit to return to full-time work, noting Mr Nave to be committed to returning to work and recommending a graduated return. He recommended funding for acupuncture and a gym program. In March 2009, Dr Jagoda reported that since Mr Nave’s graduated return to work in November 2005, he complained of back pains fro time to time and had bee treated with anti-inflammatory ad analgesic drugs to keep it in check, having exacerbations of lower back pain radiating to the right leg, in august 2007 and May 2008, There had been a further course of laser acupuncture commencing January 2009 and he started to feel more sensation in his right leg. Another CT scan in March 2009 showed L4-5 annular bulge barely effacing the thecal sac and the L5-S1 disc was degenerate with lisgh narrowing but still no evidence on the scan of a nerve root impingement, and at that time a possibility that it may gradually resolve. The next reports[14] from Dr Jagoda are after the plaintiff’s employment was terminated in 2011, although that of June 2011 sets out a fuller history of the history of his condition.
[13]Exhibit B
[14]At least so far as those tendered in this case- Exhibit B
37 Dr Knight, the defendant’s company doctor who had also treated the plaintiff, provided reports in 2003 and 2005[15] indicating that Dr Knight had long believed that the plaintiff’s perception of his back pain was amplified by psychological features, but did accept that he suffered discogenic low back pain. He described Mr Nave as very introverted and focussed on his health. He had discouraged the plaintiff’s wish to transfer to the Mail room (the suggestion apparently being that of Dr Koadlow, and favoured by Mr Nave himself), saying that mailroom duties included lifting and pushing tasks that would be worse for his back, and describing the stripping station as the most suitable for him but noting that he repeatedly exceeded the restrictions on his duties there. He noted that Mr Nave reported being unable to continue to mow the lawn or vacuum at home. I also note his comments to the plaintiff’s GP, after describing how Mr Nave had failed to follow his advice about trying to exercise -
“I am sure you are aware of Nick’s personality, his loyalty to this company and his lack of insight …. I fear that surgery would be a disaster for him as also to leave his work.”
[15]Exhibit 9
38 In March/April 2004, Dr Koadlow, rheumatologist, reported to Dr Jagoda and Dr Knight,[16] noting reflecting that Mr Nave was complaining of his back pain becoming worse, pain down the right leg, and walking with a limp. He recommended ongoing medication, and that Mr Nave be moved to lighter work such as the mailroom or office work (recommendations with which Dr Knight did not agree).
[16]Exhibit 2
39 In 2005, Mr Michael Johnstone, orthopaedic surgeon[17] reported that Mr Nave complained of his back pain from his initial injury in 1993 had worsened in an incident of June 2005, that his problems had improved significantly by 30 September but he also had pain in his right leg. He noted that CT scan showed evidence of multi-level degenerative disease but without prolapse or nerve root compression. He thought it reasonable to perform an MRI, but the result was non-specific so he would not recommend surgery, and recommended conservative management and that he see rehabilitation specialist Dr Clayton Thomas.
[17]Exhibit C
40 Dr Thomas reported[18] that he did not find any abnormal illness behaviour or any significant emotional overlay or psychological factors contributing to his presentation, concluded that work was a material contributor to his condition, that he still required ongoing treatment and rehabilitative care but his condition had improved markedly, and he could return to work initially on reduced hours to be increased gradually on certification from Dr Jagoda. Dr Thomas saw him again in early 2011, noting he had managed to work effectively in the interval since he last saw him, but not since the end of 2010 due to aggravation of his back and leg pain. Dr Thomas recommended a functional restoration program, which Mr Nave wished to undergo, reassured him after an up-to date MRI, and talked about a return to work at the end of the rehabilitation.
[18]Exhibit D
41 In August 2005, occupational physician Dr Mary Wyatt examined the plaintiff for the defendant.[19] She reported being told by Mr Nave that he had suffered back ache since returning to work after the injury in 1993, with a few episodes were the back problem has flared and on those he took anti-inflammatory tablets and relied on home remedies such as a hot water bottle and analgesics. He had taken time off on sick leave. He felt his back pain was not improving, and he had been off work for 4-5 months over the last 2 years. at that stage he complained of pain in his low back and radiating into his right leg, with numbness, and his back ache was about 7 out of 10. He was avoiding most activities at home, although he tried to do a little bit such as trying to do some sweeping but it aggravated his low back soreness He was having physiotherapy twice a week but did not find significant benefit from it, and had been off work after a flare up from pushing a heavy reel.
[19]Exhibit 5
42 Dr Wyatt felt there were non physically based findings present, diagnosed chronic back ache ad intermittent flare ups I his back problem, predicted he was going to have ongoing back pain with ongoing flare ups, but was of the opinion that the incident of 1993 was not contributing to is long term back problem. She considered the June 2005 incident was contributing to his then current back ache. She also considered him fit to return to his previous job of stripping, that return to physical activity was an integral part of management, and that he could return to stripping as it involved regular movement and did not require a lot of heavy or significant physical activity. She did not consider that physiotherapy was helping and believed a thorough understanding that return to activity would assist would overcome what might be his fear that acrivity would do him harm. Simple analgesics and anti-inflammatory tablets were also a reasonable approach.
43 In a further assessment in January 2008, Dr Wyatt noted a history of his doing a less physical job than at the time of the 2005 flare up, and that that job had been better on his back, but he had a further flare-up in august 2007 resulting in acute pain, with difficulty moving at the time, returning to work after 2 weeks, and coping with work despite soreness in his back. He was having weekly physiotherapy. On examination he presented less restricted than in 2005. She considered that he had continued soreness in his back but accepted his telling her that it had settled to its previous state. She still considered that he should do regular exercise to prevent flare-ups in his back problem. In 2013, Dr Wyatt related that Mr Nave had become depressed since his employment was terminated, accepted that he had longstanding back complaints to which his employment had contributed to flare ups but she did not consider that as described his work duties had caused any permanent back problems.
44 In May 2009, Mr Brownbill, consultant neurosurgeon, reported to the defendant’s insurer[20] that the plaintiff had said that at that stage he was not receiving any physical treatment, but taking three medications and “ without that I could not cope”. He described lower back pain present most of the time and worse at night and with twisting, and pain down the right thigh and calf to the foot, which fluctuated but was not severe. Mr Brownbill was of the opinion that the plaintiff had suffered derangement of the lower lumbar intervertebral discs, which had arisen out of and in the course of his employment, that his then current symptoms were not due to any functional overlay, exaggeration, psychological or psychosomatic factors, that he had an ongoing work capacity but was not fit for his full employment of before the 1993 injury, should avoid activities involving lifting, twisting or bending, or prolonged sitting or standing. He considered that Mr Nave probably would not be able to remain at work if the current treatment were not provided, and that the necessary activities of daily living would significantly deteriorate if the treatment was ceased.
[20]Exhibit 6
45 Mr Brownbill assessed him again in March 2011, was told that he had suffered “spasms of ain” after an incident about 7 months earlier, but that “I am unchanged from wen I last saw you”. He was then attending a pain management clinic, taking Mobic and Tramal, Mr Brownbill considered him still fit to work full-time at the same occupation.
46 In October 2009 Dr Dominic Yong, specialist Occupational Physician, examined the plaintiff and did a workplace assessment of the stripping station duties.[21] At that stage the plaintiff said that he had been able over the years since his initial back injury to generally return back to his normal hours doing restricted duties, until June 2009, following which he had been certified to work reduced hours, 3 days per week doing a range of restricted tasks. When seeing Dr Yong there had been a flare up 12 days earlier, and he had not yet returned to work. He reported that he currently had back pain on the right side which was low and radiated down his right leg to his toes but was not as severe as 12 days earlier. He was taking 2 Mobic tablets per day, on Tramadol daily, and Panadeine forte intermittently. He described himself as not having any hobbies, and having ceased previous domestic tasks of mowing the lawn, washing the car, vacuuming and cleaning. His self-reported sitting capacity was 60 minutes, standing 30 minutes, walking 25 minutes and driving 30 minutes, and that the only domestic task he could do was go shopping for lighter loads. Dr Yong considered he had chronic back pain due to a discal cause, complicated by Waddell signs and deconditioning. He assessed the work duties and considered that Mr Nave had a current capacity to perform tasks with restrictions on repeated bending and twisting of the back, firm pushing or pulling, avoid repeated lifting of more than 6kg, and needing to vary posture regularly. He was not fit to work his pre-injury production assistant tasks, but could perform some production assistant tasks and felt the task of stripping of the reels complied with those restrictions.
Findings as to what facts and circumstances were known to or believed by the plaintiff prior to May 2010
[21]Exhibit 7
47 I am satisfied that the plaintiff knew:
· That he had continued to suffer some back pain since the injury in 1993 and it was unlikely to ever fully resolve;
·That he would continue to suffer an ongoing level of pain in his back, which would be exacerbated from time to time, especially by work duties or incidents.
·That at times when he had an exacerbation of his back condition his pain could be severe, and would radiate down his right leg and sometimes result in numbness. These symptoms required him to lie down when he got home from work, woke him at night, he had walked with a limp when in 2004 the right leg felt numb, and that since 2005 he had been unable to help his parents with heavier household tasks of vacuuming or mowing the lawn, or heavier gardening which he had liked, and his brothers helped his parents with these.
· That the defendant’s company doctor, Dr Knight, continued to consider him capable of performing the stripping station duties, and would not recommend him for mailroom duties, saying those required lifting heavy items;
· That medications including Mobic and Tramal had been prescribed for him at times, and helped him cope with his back pain, and that at times acupuncture or physiotherapy had been performed and helped.
48 I am satisfied on the balance of probabilities that as at 10 May 2010, the plaintiff believed:
· That the defendant would continue to employ him for the rest of his working life which he thought was until age 65;
· That although he was likely to continue to suffer pain in his back, with exacerbations from time to time, and some pain and sometimes numbness in his right leg, those exacerbations would resolve sufficiently for him to continue to work as they had always done in the past;
· That the defendant would continue to allow him time off work to recover sufficiently from exacerbations of his back pain to return to either modified or full duties;
· That despite his back pain never fully resolving, he would continue to be able to work until he turned 65.
49 I am satisfied that it was not until late 2010 that it began to occur to Mr Nave that he might not recover from the recent exacerbations as he had previously, and not until 2011, when he received the first letter from the defendant to this effect, that Mr Nave realised that his employment with the defendant might be terminated as a result of his ongoing back condition. I am satisfied that it was not until then that he realised that he was unlikely to be able to obtain employment with any other employer. I am satisfied that however naïve, Mr Nave had simply never turned his mind to the possibility that he might have to consider seeking employment elsewhere than with the defendant, and that the circumstances of his long-standing employment with the defendant had made that a not unreasonable expectation or belief.
Does the plaintiff satisfy s 135AC(b)?
50 The next question is whether those facts which I have found he knew or believed, constituted knowledge of a serious injury capacity from the 1993 injury.
51 The defendant argues that by the end of 2009 Mr Nave was suffering ongoing back pain (as he told Dr Wyatt), taking Tramal, Panadeine forte and Mobic, not able to do the garden or to help with household maintenance, knew he had flare-ups and knew he was not able to do his original work as a production assistant. It also argues that he knew he was unlikely to get a job elsewhere but I am not satisfied he did turn his mind to that until 2011 when he was told his employment with the defendant was to be terminated. The defendant argues that his knowledge of those facts, viewed objectively amounts to knowledge that he had incapacity from his back injury by the end of 2009 which constituted serious injury.
52 For the plaintiff it is argued that what he critically did not know was that his back injury would result in his being unable to continue working for the defendant, or any other employer. Further it is argued that the fact that he was able to keep working for so many years after his injury at what were in reality strenuous duties at the stripping station, reflects not only a very high degree of tolerance for pain, and stoicism, such that however he described it to doctors at times of exacerbations, I should infer that he did not in fact think that he was experiencing “very considerable” pain while he worked, prior to mid-2010.
53 In assessing the plaintiff’s state of knowledge of his level of incapacity, his subjective view is not determinant. An objective assessment must be made of the facts known to him, and that requires an assessment of his actual knowledge at that time in all of the circumstances. It has been said that those circumstances might include a matter such as a worker’s optimism – so long as it is not wholly unfounded; or the ability of a particular worker to block out pain[22].
[22]Ashley JA in Nicolaou at [47]
54 Somewhat ironically, it is the defendant in the context of this application which urges me to believe and rely upon all complaints by the plaintiff of symptoms and their extent as reported in medical reports to have been recounted by him. In my view, accounts to doctors of the symptoms being suffered by the plaintiff prior to May 2010 must be considered in the context of their timing and also in the context of the doctors’ opinions and recommendations as part of the circumstances.
55 Notwithstanding that I accept the plaintiff as honest and genuine in his account now of how he recalls his symptoms, and as to what he told doctors at the time of seeing them, I find it is unlikely that he would have been found to have suffered a serious injury from the 1993 injury had that issue been considered on 9 May 2010. Notwithstanding that Mr Nave was complaining of ongoing and significant levels of symptoms of pain in his low back and right leg to doctors, and exacerbations causing longer absences from work, he also told doctors that when exacerbations resolved his symptoms improved to how he had been either since 1993 or before the exacerbation. Dr Wyatt did not accept that the 1993 injury as described to her was likely to have caused a long-term back condition. Moreover, Doctors Knight, Wyatt and Yong all considered that there were “non-organic” features to his presentation, that he was fit to return to full-time duties at the stripping station, and that generally more exercise and keeping active would improve his condition and help prevent further exacerbations of his back pain. On this basis his incapacity for the household and garden activities he described was likely to be challenged as either psychologically based or unlikely to be long-term (had he reconditioned himself as recommended by those doctors).
56 Further, even though serious incapacity does not need to include incapacity for work, in this case I consider that Mr Nave was unlikely to prove that he had a serious injury if significant incapacity for work were not established. That is because in his work was a very significant part of his life, not only financially but as the main focus of his self-respect and purpose, and his home and social life and activities were very limited. Doctors Knight, Wyatt and Yong cast doubt on the physical basis for the extent of symptoms (of pain and suffering) of which he complained, and considered that more exercise and activity would recondition him. Dr Koadlow’s 2004 recommendations for much lighter work had been dismissed by Dr Knight, and implicitly would not have been supported by Dr Wyatt or Dr Yong. Dr Jagoda was providing certification for him to return to work after exacerbations, although on a graduated basis, as he was clearly aware of the importance to the plaintiff of doing so, and as late as March 2011 Dr Thomas was talking of a graduated return to work after rehabilitation. Mr Brownbill thought him fit for full-time duties albeit with restrictions.
57 Based on the medical reports up to the end of 2009 tendered in this case[23], I find it unlikely that the plaintiff would have succeeded at that stage in establishing a serious injury incapacity from the 1993 injury.
[23]There were no medical reports tendered dated between January and May 2010
58 In considering what the plaintiff’s actual knowledge was before May 2010 and whether that amounted to knowledge of serious injury incapacity, I can take into account that circumstances which yield knowledge in one person will not necessarily do so in another person. I am satisfied that Mr Nave’s ability to appreciate likely consequences of what he was experiencing as a result of his back condition was limited by his very circumscribed life experience. Apart from his home life with his parents and siblings, his work environment was his other major experience of life, and from his perception he worked for a company that had treated him well and he expected would continue to do so until retirement age. He was unquestioningly loyal to the defendant, so accepted that he was fit to return to work when told by Dr Knight that the stripping station was the most suitable duties for him with his back injury. His treating doctors understood his wish and the importance to him to keep returning to his work with the defendant, so facilitated and encouraged that with certification of capacity for such work. No-one was warning him that his symptoms were likely to worsen or that he might need more intrusive treatment than the medications he was taking when prescribed.
59 Finally, Mr Nave’s evidence was not challenged that there was a change to his duties in about June 2010 after which he noticed his back problems become worse and the exacerbations increased. That was the installation of a bar for safety reasons which was at a height that required him to lean forward more to carry out his work and thereby placed more stress on his back. That is a circumstance consistent with being the cause of a significant deterioration in his back symptoms to the extent that both Dr Jogoda and the new company doctor were of the view that he could not return to the stripping station work after December 2010 without risking further injury to his back, and told him so.
60 In these circumstances, viewing the circumstances of the plaintiff’s knowledge objectively, I am satisfied that prior to 9 May 2010 Mr Nave did not know that he had suffered serious injury incapacity from the injury to his back caused in the 1993 incident.
CI-13-03471
Nave - v- The Herald and Weekly Times Ltd
SCHEDULE OF DOCUMENTS EXHIBITED
| Number and Identifying Mark on Exhibit | Short Description of Exhibit | Court Book Ref |
| A | Plaintiff’s affidavits dated 18 December 2012 with exhibits, 3 December 2014 and 8 December 2014 | PCB27-49, 50-52, 53-56 |
| B | Reports of Dr John Jagoda dated 2 August 2005, 9 November 2005, 6 June 2006, 23 March 2009, 8 June 2011, 25 August 2011, 16 July 2013, 17 October 2013 and 13 November 2014 | PCB57-59,60-62,63-64,65-67,68-72,73-74,75-79,80-82,83-86 |
| C | Reports of Mr Michael Johnson dated 16 September 2005 and 23 September 2005 | PCB91-92,93 |
| D | Reports of Dr Clayton Thomas dated 5 October 2005, 17 February 2011 and 2 March 2011 | PCB94-96,97-98,99 |
| E | Report of Mr Kenneth Brearley dated 19 September 2014 | PCB115-121 |
| F | Report of Professor Richard Bittar dated 8 October 2014 | PCB122-125 |
| G | Letter Defendant to Plaintiff dated 21 April 2011 | PCB178-179 |
| H | Letter from Defendant to Plaintiff dated 5 July 2011 | PCB174 |
| J | Letter from Defendant’s solicitors to Plaintiff’s solicitors dated 20 June 2013 | PCB26a-26b |
| K | Serious injury certificate dated 4 December 2014 | PCB19a |
| 1 | Draft statement of claim submitted to Defendant approximately 7 February 2013 | PCB14-19 |
| 2 | Reports of Dr Leslie Koadlow dated 26 March 2004 and 2 April 2004 | PCB89,90 |
| 3 | Radiological reports 23 June 1993, 7 April 1994, 1 August 2003, 23 October 2003, 22 September 2005, 10 March 2009, 15 June 1998 | PCB139a-144 DCB102g |
| 4 | Workers Claim Forms dated 23 June 2005 and 5 December 2007 | PCB158-160, 166-167 |
| 5 | Reports of Dr Mary Wyatt dated 1 August 2005, 12 January 2008 and 25 May 2013 | DCB1-10 |
| 6 | Reports of Mr David Brownbill dated 13 May 2009 and 10 March 2011 | DCB23-35 |
| 7 | Reports of Dr Dominic Yong dated 14 October 2009 | DCB36-48 |
| 8 | Report of Dr Kevin Sleigh dated 23 March 2011 | DCB57-62 |
| 9 | Reports of Dr Edwin Knight dated 10 November 2003 and 4 July 2005 | DCB102a-102f |
| 10 | Letter from Plaintiff’s solicitors dated 9 May 2013 enclosing section 135A application | DCB103 |
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