Newman v Victorian WorkCover Authority

[2019] VCC 1165

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-18-03435

GRANT NEWMAN	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE HINCHEY
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1, 2, 3 and 5 April 2019
DATE OF JUDGMENT:	1 August 2019
CASE MAY BE CITED AS:	Newman v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2019] VCC 1165

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:             Limitation of Actions – application for extension of time – relevant principles

Serious Injury – paragraph (a) of the definition of “serious injury” – pain and suffering – whether injury to lumbar spine is organic in nature – whether injury resulted in serious injury consequences – relevant principles

Legislation Cited:     Limitation of Actions Act 1958, s23A; Accident Compensation Act 1985, s134AB

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Davies v Nilsen & Transport Accident Commission [2014] VSCA 278; Bell v SPC Ltd [1989] VR 170; Brisbane South Regional Health Authority v Taylor (1996) CLR 541; Welsh v Adecco & Ors [2017] VSC 44; Tsiadis v Patterson (2001) 4 VR 114; Millard v State of Victoria [2006] VSCA 29; Clark v McGuiness [2005] VSCA 108; Taylor v Western General Hospital [1986] VR 250; Andresakis & Associates v Alexus Holdings Pty Ltd (2006) 68 NSWLR 507; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517

Judgment:                 Application for extension of time granted. 

Application for leave to bring proceedings for damages granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A D Clements QC with Mr C Sidebottom	Ryan Carlisle Thomas
For the Defendant	Mr D McWilliams	IDP lawyers

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff while employed by Justice Transport Pty Ltd (“the employer”), specifically while conducting work at Sandown Racecourse on 23 July 2003 (“the 2003 accident”).

2   The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering.

3 In addition, pursuant to s23A of the Limitation of Actions Act 1957 (“the LAA”), the plaintiff seeks to extend the limitation period relevant to his claim.

Relevant legal principles

The application for leave to bring proceedings for damages

4   The application for leave to bring proceedings for damages is brought pursuant to subsections (a) and (c) of the definition of “serious injury” as defined in s134AB(37) of the Act, namely:

“‘Serious injury’ means –

(a)     permanent serious impairment or loss of a body function … .” 

…

(c)permanent severe mental or permanent severe behavioural disturbance or disorder … .”

5   The impairment of body function relied upon is function of the lumbar spine.

6 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, by s134AB(1) of the Act, the relevant physical or psychological injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer on or after 20 October 1999.[1] As set out in s134AB(37), the impairment of the body function must be permanent.[2]

[1]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622

[2]Barwon Spinners Pty Ltd & Ors v Podolak (ibid) at paragraph [33]

7   The plaintiff’s burden of proof on the application is on the balance of probabilities.

8 In relation to the physical injury which relates to the impairment of a body function, by s134AB(38)(b) and (c) of the Act, it is the “consequences” of the bodily impairment which produce the “pain and suffering” or “loss of earning capacity” which must be “serious” – that is, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of body function results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable.”  This has been referred to as the “narrative” test.

9   In determining the application, the Court:

(a)   must assess whether “the injury” is a “serious injury” as at the time the application is heard.[3]  In relation to the assessment of the pain and suffering consequences of an injury, it has been held that this task is largely a question of impression or value judgment;[4]

(b)   must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[5]

[3]Section 325(2)(j) of the Act

[4]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]

[5]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]

10 Section 134AB(38)(h) requires me to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.

11   In determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. 

12   It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[6]

[6]Petkovski vGalletti [1994] 1 VR 436

13   Applying the principles set out in Petkovski v Galletti,[7] in an application such as this where it is alleged that the plaintiff had a relevant pre-existing condition, it is the consequences of the aggravation of that injury (in this case, an injury to the lumbar spine) which must be assessed.[8] 

[7]Petkovski vGalletti (ibid) at 443

[8]See also AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309 at paragraph [34]

14   To undertake this task, the applicant must establish what injury was caused by the accident.  I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[9]  If I am satisfied that the additional impairment is “serious” (for example that the aggravation to the plaintiff’s lumbar spine alone has resulted in relevant pain and suffering “consequences” that are “when judged by comparison with other cases in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable”), then the applicant will have demonstrated that he is suffering from a “serious injury” under the Act.[10]

[9]AG Staff Pty Ltd v Filipowicz (ibid) at 444

[10]Petkovski v Galletti (ibid) at 444

15   In the application for leave to bring proceedings for damages, the plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined at length.  The defendant also cross-examined the plaintiff’s treating general practitioner, Dr Malcolm McCowan, and Mr Clayton Thomas, a pain and rehabilitation specialist.

16   In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[11]  I have read all of the tendered material.  In this judgment, I will refer only to the relevant parts of the tendered materials.  Both parties filed extensive written submissions.

[11]The Plaintiff’s Court Book was marked as exhibit P1;  the Defendant’s Court Book was marked as exhibit D1

17   In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[12] and Grech v Orica Australia Pty Ltd & Anor.[13]

[12]Supra

[13](2006) 14 VR 602

The application for an extension of the limitation period

18 The relevant limitation period applicable to a cause of action under the Act, is six years after the accrual of that cause of action.[14]

[14]see s5 and s40 of the LAA

19 The accident having occurred on 23 July 2003, the limitation period in respect of the plaintiff’s cause of action expired on or about 22 July 2009. Pursuant to s23A of the LAA, the plaintiff applies for an extension to the limitation period (“the extension application”).

20 By s23A of the LAA, where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court may decide that it is “just and reasonable” to order that the period within which an action on the cause of action may be brought, be extended for such period as it determines. This is the primary consideration for a court hearing an application under s23A of the LAA.[15]

[15]see Davies v Nilsen [2015] VSC 584 at paragraph [43(d)]

21 In exercising the powers conferred on it by s23A(2) of the LAA, the Court must have regard to all of the circumstances of the case, including the six “non-exhaustive” matters set out in s23A(3), viz:[16]

[16]Davies v Nilsen (ibid)

“(a)     the length of and reasons for the delay on the part of the plaintiff;

(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;

(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;

(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

22   The plaintiff bears the onus of satisfying the Court that it is “just and reasonable” to extend the limitation period.[17]

[17]Section 23A(2) of the LAA;  Bell v SPC Ltd [1989] VR 170 at 174-5; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR, per Toohey and Gummow JJ at 547;  Welsh v Adecco & Ors [2017] VSC 44 at paragraph [6]

23   There is no prima facie right to an extension of the limitation period under the LAA.  The defence under the LAA is a benefit given to the defendant by law. The loss of that benefit must be taken into account by the Court when carrying out the assessment required by s23A of the LAA.[18]

[18]Bell v SPC Ltd (supra)

24 It has however, been observed that “the provision, s23A, is beneficial and provides the Court with a wide discretion as to whether an extension of time ought to be granted”.[19]

[19]Davies v Nilsen (supra) at paragraph [43(e)]

25   The relevant delay is the “delay between the accrual of the cause of action and the making of the application for an extension of time.”[20]  It was agreed that the relevant date is the date on which the Form A, Serious injury Application was filed, namely on or about 10 April 2018.[21]

[20]Welsh v Adecco & Ors (supra)

[21]Exhibit P1, pages 7-14

26 The considerations set out in s23A(3) of the LAA are not to be weighed against each other.  The Court must endeavour to “synthesise” the competing considerations “in arriving at a conclusion that takes account of them all”.[22]  The task of the trial judge in determining such an application is not unlike that of the imposition of a sentence in a criminal trial:  the synthesis of competing considerations underpinned by the proposition that the plaintiff bears the onus of persuasion.[23]

[22]Tsiadis vPatterson (2001) 4 VR 114, per Buchanan J at 123

[23]Tsiadis v Patterson (ibid) at 114;  see also Millard v State of Victoria [2006] VSCA 29 at paragraph [42]; Clark v McGuiness [2005] VSCA 108 at paragraphs [38]-[40]

27   The plaintiff’s prospect of success in the proposed action are not a relevant factor in the Court’s consideration of an application for an extension of time, unless it is clear that the plaintiff has no cause of action.[24]

[24]Bell v SPC (supra) at 126; Taylor v Western General Hospital [1986] VR 250

28   The right of a plaintiff to bring a case against a former solicitor for failing to initiate a proceeding within time is a relevant consideration in determining whether to grant an extension of time.[25]  The weight to be given to this consideration, if relevant, depends upon the circumstances of the case.[26]

[25]Tsiadis v Patterson (supra) at 121-122; see also Andresakis & Associates v Alexus Holdings Pty Ltd (2006) NSWLR 507

[26]Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517 at paragraph [86]

29   Should a defendant establish that they may suffer prejudice by granting the plaintiff an extension of time, then it is for the plaintiff to satisfy the Court that such prejudice is not material.[27]

[27]Brisbane South Regional Health Authority v Taylor (supra);  Welsh v Adecco & Ors (supra)

30   Relevant prejudice to a defendant is that which has actually occurred by reason of the delay, as well as the prima facie prejudice suffered by a defendant who, if not for the application for an extension, would have the benefit of the limitation period.[28]

[28]Brisbane South Regional Health Authority v Taylor (supra) at 544, per Dawson J;  Welsh v Adecco & Ors (supra)

31   The longer the delay in commencing proceedings, the more likely it is that there will be prejudice from lost witnesses or fading recollections.[29]

[29]Brisbane South Regional Health Authority v Taylor (supra) at 551, per McHugh J;  Welsh v Adecco & Ors (supra)

32   In the application to extend the limitation period, the plaintiff swore two affidavits.  He also relied upon affidavits sworn by Mr Gary Condon[30] and Ms Jacqueline Burton.[31] 

[30]Exhibit P1, page 202

[31]Exhibit P1, page 196

33   The defendant relied on one affidavit sworn by Mr Tim Foster, an investigator employed by Freemans Investigations Services.[32] 

[32]Exhibit D1, page 5

34   The plaintiff was cross-examined as to relevant issues.  Mr Condon, Ms Burton and Mr Foster were not required to attend for cross-examination. 

35   Both parties filed written submissions and referred me to relevant case law.  I have read all of the materials and had regard to the evidence which is relevant to the extension application.

The application for leave to bring proceedings for damages

The Plaintiff’s background

36   The plaintiff was born in June 1946 in Australia.[33]  He is now aged seventy-three.  He completed Year 12 at Heidelberg High School.  He worked as a butcher for approximately two years and sold cars for a couple of years.[34]  He then got into the horse transportation business and did that for the rest of his working life.  He has worked for a number of horse transport companies.  He commenced work with the employer on 18 October 2001.[35]  He was working for that company as a horse float driver at the time of the accident.[36]

[33]Exhibit P1, page 20

[34]Exhibit P1, page 20

[35]Exhibit p1, page 63

[36]Exhibit P1, page 20

Relevant prior injuries

37   The plaintiff relied upon a chronology which drew together the plaintiff’s relevant medical history by reference to documents in both Court Books.  No issue was taken with the accuracy of that document.  The chronology disclosed the following prior medical history:

(a)   the plaintiff injured his right little finger at work in December 1988.  In August 1991, he was certified as having 100 per cent loss of use of that finger and was awarded the sum of $8,168.60 in compensation.[37]  A County Court Writ was issued on 12 August 1992 for common law damages in respect of the same injury.  That claim was settled on 16 February 1993 for the sum of $10,000 plus retention of benefits;[38]

[37]Exhibit P1, pages 30 and 40

[38]Exhibit D1, pages 12 and 20

(b)   on 30 June 1999, the plaintiff suffered a back injury when he opened the door of a horse float.[39]  On 16 July 1999, he was certified fit to resume normal duties by his general practitioner;[40] however, over the course of balance of 1999 and 2000, the plaintiff aggravated the injury to his back on at least two further occasions,[41] including on one occasion when he threw a mat out of a float,[42] and one occasion in April 2000 where he was pinned by a horse in a float, hurting his chest and back;[43]  

[39]Exhibit D1, pages 23 and 95

[40]Exhibit D1, page 35

[41]Exhibit D1, pages 95 and 107;  see also exhibit D1, page 96

[42]Transcript (“T”) 79, lines 9-29

[43]T85-86

(c)   on 2 December 1999, he had an c-ray and CT scan of his lumbar spine, which were reported as showing, inter alia, “‘mild’ disc bulges at L3-4 and L4-5”;[44]

[44]Exhibit D1, page 107

(d)   on 7 May 2001, the plaintiff sustained injuries to his back, left elbow, chest and ribs at work, when he was kicked by a horse.[45]  In July 2001, a Worker’s Claim for Compensation form was signed by the plaintiff in respect of this incident.  It listed his injuries as “partial collapse left lung.  Disc prolapse.  Lower back aggravation …”.[46]  He did not deny seeing a physiotherapist in relation to this injury, nor did he deny that he might have been suffering from leg pain at this time.[47]  He said that he could not recall telling Mr Pullar about these matters, but he agreed that in the past he has complained of aching pain down into his legs, thighs and calves.[48]  He denied experiencing pins and needles down into both feet and a sensation of weakness in the legs, until after the operation, which he says was related to the 2003 incident; [49]

[45]Exhibit P1, page 45

[46]Exhibit P1, page 45;  Exhibit D1, page 38

[47]T123-124;  see also T153, lines 17-20

[48]T155, lines 12-17

[49]T155, lines 18-30

(e)   he was certified fit to resume normal duties on 31 August 2001 and returned to work around this time.[50]  On 18 September 2001, he was examined by Mr Robert Marshall, surgeon, at the request of Allianz Australia Workers’ Compensation.  Mr Marshall concluded that the plaintiff had at that time recovered from the back and chest injuries suffered in May and June 2001;[51]

[50]Exhibit D1, pages 61 and 77

[51]Exhibit D1, page 78;  exhibit p1, pages 128-129

(f)    about two weeks after he was kicked, he was again squashed against the wall of a float by a horse.[52]  He denied not being able to lie on his back afterward:  “No not at all …”.[53]  He later said that he could not recall this incident at all;[54] 

(g)   in the first half of 2003, the plaintiff was experiencing intermittent back pain, which would flare up sometimes and then settle down again.  He required the use of Panadeine Forte from time to time, not every day.[55]  He was enjoying his work at that time.[56]

[52]T90, lines 28-31;  T 91, lines 2-7

[53]T91, lines 8-13

[54]T120, lines 7-12

[55]Exhibit P1, page 31, paragraph 9

[56]Exhibit P1, page 31 at paragraph 9

The accident

38   The plaintiff described the accident in the following way:[57]

“On [the] 23^rd day [of] July 2003 I had to take horses from the Cranbourne Stables to the Sandown Race Track and then other horses onto Flemington and then back to Sandown Race Track in the afternoon.  I got back to Sandown at about 2:30 p.m. and it had been raining.  I got the horses off the horse float and then had to take more horses from Sandown back to Cranbourne to finish the day.  To get horses on and off the truck you have to use a hydraulic ramp on the side of the truck which provides access to the horse bays.  I brought horses back from the Sandown stables and when I got back to the truck the ramp had been lifted up and locked in position on the truck.  I had left it down because I knew I had another horse to bring back and I only expected to be away for a short period of time.  I had been away from the truck for about 15 minutes.  A strapper was with me and had the horse under control.  I unlatched the catchers on the loading ramp and then pushed the button which operated the hydraulic mechanism.  Instead of lowering the ramp it just came down suddenly and struck me in the back.  I was knocked to the ground.  Others came to my assistance and the racecourse doctor was called and I was taken inside and then taken by ambulance to the Dandenong Hospital and I was admitted and stayed there for a couple of days. I saw my own general practitioner, Dr McGowan (sic), and he provided me with medication and some time off work … .”

[57]Exhibit P1, pages 20-21

39   Following the incident, the plaintiff was diagnosed as suffering from a fractured coccyx.[58]  He was certified unfit for work.[59]  He returned to work in September 2003, having had about two months off.[60] 

[58]Exhibit P1, pages 99 and 108

[59]Exhibit D1, page 65

[60]Exhibit P1, page 35, paragraph 6

40   He was referred to Mr Michael Pullar, neurosurgeon, because of worsening back and leg pain.[61]  A CT scan of the plaintiff’s lumbar spine was conducted on 24 October 2003, the report of which stated:[62]

“… At L3/4 disc level there is a broad based bulge in the convexity of the posterior surface of the L3/4 disc which in combination with hypertrophy of the ligamentum flavum narrows the lumbar canal slightly at this level.  No focal disc protrusion … is seen.  At L4/5 disc level there is evidence of a midline focal disc bulge which is slightly deforming the thecal sac and in combination with hypertrophy of the ligamentum flavum reducing the size of the lumbar canal to a moderate degree … .”

[61]Exhibit P1, page 35

[62]Exhibit D1, page 111

41   He continued to work and took regular Panadeine Forte and other prescription medication for pain.  As well as the back pain, the pain in his legs increased and eventually became a constant problem.[63]

[63]Exhibit P1, page 36

The Plaintiff’s evidence

42   The plaintiff swore two affidavits, the first on 5 April 2018 and the second on 14 February 2019.  He gave further evidence-in-chief at the commencement of the hearing.

43   In summary, his evidence as to the pain and suffering consequences which he presently experiences is as follows:

Experience of pain, medication and treatment

(a)   he is in pain all the time and it never goes away;[64] 

[64]Exhibit P1, page 24

(b)   he gets pain in his low back and in both legs from the knees down to the feet.[65]  The evidence established that the pain which the plaintiff now feels in his lower limbs is a “burning, dya[s]esthesia-type pain,”[66] which the plaintiff has described as feeling “as if the toes are being ripped off the bone …”;[67]

[65]Exhibit P1, page 24

[66]Exhibit P1, page 120

[67]Exhibit p1, page 131

(c)   the pain has not improved over the last twelve months.  He thinks that it has got worse “because the pain is more severe and the difficulty with my balance and walking have got worse.  Also the difficulties of pain in my lower legs and feet have got worse … ”;[68]

[68]Exhibit P1, pages 24-25

(d)   he has continued to see Dr McCowan approximately every two weeks;[69]

[69]Exhibit P1, page 23

(e)   he takes Palexia, daily, for pain relief.  He was having physiotherapy and hydrotherapy until late 2018, but ceased these for financial reasons;[70]

[70]Exhibit P1, page 23

(f)    he was referred Mr Craig Timms, neurosurgeon, on two or three occasions, and that doctor continues to give him advice about his ongoing back problems.  The plaintiff had an MRI scan on 20 October 2017 and Mr Timms performed a lumbar laminectomy in November 2017 at the L3-4 and L4-5 levels.[71]  Amongst others, he has seen Mr Daniel Bloomfield and Mr Moses for further advice.  No treatment was given by Mr Bloomfield.  Testing was carried out by Mr Moses and a Doppler examination was conducted.  The plaintiff did not have the results of this examination at the time of swearing his second affidavit;[72]

[71]Exhibit P1, page 28

[72]Exhibit P1, page 24

(g)   he has recently been referred to Dr Clayton Thomas for pain management.[73]  Although he has been assessed, he has not had any treatment from this doctor as at the date of the hearing;

[73]Exhibit P1, page 24

Ability to work

(h)   following the incident the plaintiff was able to continue working with the employer (who were then known as Mornington Cranbourne Floats[74]), but he noticed increasing back pain, together with more and more restrictions in terms of bending, squatting, lifting and doing anything which required the use of his back.[75]  He mostly worked with a strapper, who looked after the horses.  While the duties did not change, he had to modify the way he did his job;[76]

[74]T51, lines 12-14

[75]Exhibit P1, page 21

[76]T53, lines 1-28

(i)    because of these restrictions, he tried to find lighter work and obtained a job with Sydney Horse Transport (who had purchased Mornington Cranbourne Floats[77]), working there in a managerial capacity.  He described himself as “virtually office bound, booking all the horses in to go interstate, to go to sales, to go to the races or drive around to trainers and chase up work for them”.[78]  In about 2013, he began attending horse sales around Australia and advised about various horses.[79]  His employment with Sydney Horse Transport was terminated in 2015;[80] 

[77]T55, lines 17-19

[78]T55, lines 7-13

[79]T56, lines 11-19

[80]Exhibit P1, page 21

(j)    in about 2016,[81] he obtained a part-time driving job with Condo’s Horse Transport.  He found that work very difficult because of his back pain and restrictions, which had worsened over the years.[82]  He finally stopped working for Condo’s Horse Transport in 2017, because his back was just too painful and the restrictions meant that he could not do the work;[83]

[81]T60, lines 3-11

[82]Exhibit P1, page 21

[83]Exhibit P1, pages 21-22

(k)   he “felt shattered” to stop working.  He had no intention of stopping when he did.  He loved his work, because he loved the horses and the camaraderie within the racing community.  He feels greatly disappointed about not being able to work.  He often becomes upset when he thinks about it; [84]

[84]Exhibit P1, page 38

Ability to sleep

(l)    his sleep is badly affected by the pain.  He is lucky to get three hours of sleep before waking.  Then he cannot get back to sleep;[85]

(m)     sometimes he gets up in the night and just sits in a chair to try to get some relaxation, because sleep is impossible;[86]

[85]Exhibit P1, page 24

[86]Exhibit p1, page 24

Activities of daily living

(n)   his balance is affected and he has considerable difficulty walking because of the pain and the loss of strength in his legs;[87]

[87]Exhibit P1, page 24

(o)   he needs a stick to walk and cannot walk more than 200 to 300 metres without getting increased back pain, causing him to have to rest;[88]

[88]Exhibit P1, page 24

(p)   sitting for any period of time, certainly for more than twenty to thirty minutes, will cause the pain in his back to increase;[89] 

[89]Exhibit P1, page 24

(q)   he can drive locally, but not for any distance and not for more than twenty to thirty minutes without having difficulties;[90] 

[90]Exhibit P1, page 24

(r)    he does not participate in family events any longer and does not go on social outings “unless I absolutely have to”.  If he does go to a social function, he usually comes home early;[91]

[91]Exhibit P1, page 24

(s)   he can water the garden but do nothing around the house that is heavier than that;[92]

[92]Exhibit P1, page 24

(t)    any sort of activity, including bending, squatting, twisting or lifting, will increase his back pain and the pain that spreads into his legs.[93]  He spends most of the day resting and sometimes has a nap in the afternoon.  He watches television a lot when he feels up to it.[94]  “I … just sit around at home and do almost nothing”;[95]

(u)   he gets depressed about the pain and the restrictions that are now imposed upon him.  He had always been an active person and that has been taken away from him;[96]

[93]Exhibit P1, page 25

[94]Exhibit P1, page 24

[95]Exhibit P1, page 25

[96]Exhibit P1, page 24

44   Under cross-examination, the plaintiff gave the following evidence:

(a)   he worked for the employer as driver for about eleven years until 2012, when he went to being the operations manager.  The company was then known as “Sydney Horse Transport”;[97]

[97]T66, lines 2-8

(b)   the reason he went from being a driver to operations manager at Mornington Cranbourne Floats/Sydney Horse Transport was because Gary Condon left;[98]

[98]T61, lines 5-9

(c)   he worked as a driver for Garrett & Griffiths for fifteen years in the 1990s;[99]

[99]T61, lines 10-18; T63, lines 19-21

(d)   getting horses on and off trucks is very tough work;[100]

[100]T62, lines 29-31

(e)   the work he did for the employer was hard, rigorous work.  The type of work he was doing did not change[101] from the time of the 2003 accident until he became the operations manager when Gary Condon left.  Except for the periods he had off work, he could “cope” with those duties throughout that time;[102]

[101]T66-67

[102]T62, line 28 – T163, line 31

(f)    the occasion where he hurt his back before the accident, involved a “side drop” door at Garrett & Griffiths.  With a side drop door, you catch the door as it falls.[103]  He would describe the injury he sustained on that occasion as a “strain,” although he said that “it bloody hurt” and agreed that the injury knocked him about “to an extent”.[104]  He said he “possibly” could have told staff at Dandenong Hospital after this incident that he tried to stand up but collapsed.[105]  He also said that after the incident, he drove the truck back to Mordialloc, then an ambulance was called; [106]

[103]T67-68

[104]T70, lines 1-5

[105]T114, lines 13-23

[106]T116, lines 1-31

(g)   he had not had any issues with his back prior to the injury event described above, which occurred in 1999[107]

[107]T78, lines 7-13

(h)   he has been on strong pain medication, including Panadeine Forte, for many years, including for a “frontal relocation” of his oesophagus in response to a reflux problem which caused an ulcerated oesophagus;[108]

[108]T81, lines 1-30; T82, lines 6-17

(i)    he agreed that prior to the accident, his back was bad enough that he needed to see his general practitioner “on occasion”;[109]

[109]T83, lines 3-10

(j)    he recalls seeing Mr Pullar, but does not know whether it was in May 2000;[110]

[110]T85, lines 1-9

(k)   he is someone who has a pretty high pain threshold.[111]  He can handle a fair bit of pain:  “My word I can.”  He agreed that for him to say “I can’t go on any longer,” he would have to be in extreme pain: “I don’t complain over little things …”;[112]

[111]T118, lines 6-7

[112]T115, lines 1-3

(l)    he said, on that basis, it was fair to describe the pain he was in after the 1999 float door incident, as “extreme pain”;[113]  He agreed that he was lying on the floor when the ambulance attended in response to this injury, but denied that this was because it was the only comfortable place for him to be:  “No, [the company] said, “We don’t know what’s happened.  Just lay on the floor until the ambulance comes”;[114]

[113]T118, lines 19-21

[114]T118-119

(m)     he agreed that he had been kicked many times by horses on numerous occasions over his career:  “It’s part and parcel of the job.”  He agreed that had caused him to feel pain in his back:  “Yeah, and every other part of my body, head, shoulders, legs, arms …”;[115]

[115]T121, lines 1-10

(n)   he agreed that when horses kick, they kick hard:  “My word they do…”  He said that if kicked, it would “definitely put you down, yeah … depends where they kick you”;[116]

[116]T121, lines 11-22

(o)   he has always been allergic to sleeping tablets.[117]  At times he has been prescribed prednisolone for his back, but mostly it was prescribed for an issue with his vocal cords, that kept getting infected;[118]

[117]T126, line 1-17

[118]T126-127

(p)   the plaintiff explained that in 2001, when he sustained the fractured ribs and collapsed lung, the pain was in his back:[119]  “… I don’t know if you’ve ever had broken ribs and a collapsed lung – that’s where you get it [in the back] …”;[120]

[119]T127-128

[120]T128, lines 15-19

(q)   in the aftermath of the accident, he was “… sore all over, particularly… around my bum, around the hips …”.[121]  It was in this context that at the hospital he was told he might have a fractured coccyx”;[122]

[121]T150, lines 13-22

[122]T152, lines 13-17

(r)    he now has “total pain in the whole of my back from the [site of the] operation [at L3-4, L4-5] …” to his tailbone;[123]

[123]T153, lines 7-13

(s)   he said that his pain after the incident was “not at all” like the pain he had suffered before it;[124]

[124]T158, lines 24-28

(t)    asked to describe the difference in the pain from prior to the accident and the pain after it, he said:[125] 

[125]T159-160

A:“Well, I had problems with my back off and on, but I’d go to physio and things like that.  After the incident, my whole back – that’s why I had to stop work – my back, from where they did the incision right down my back, is painful.  If I sit down – if I drive down the street, I’ve got to sit with my legs out of the car for five or ten minutes before I can stand up.

…

Q:So that pain has come on since the operation?---

A:It was intermittent before, but its constant now.  … and then it just got … worse and worse, to the stage where I couldn’t work at all, I had to stop working.

Q:… And prior to when the ramp fell on you in 2003, can you tell me how your back pain was then?---

A:It was good, really.

…

Q:So good in what way?  Please explain it to me?---

A:As I said to you, I’d have a bad day and might get knocked around…but other than that, I could go for weeks and it would be great, not bother me …

Q:But after the 2003 [accident], when the ramp fell on you, can you give me a summary of that?---

…

A:It just became constant.

…

And that is why I had to go and see a neurosurgeon.

Q:… And you’ve given the evidence you needed to keep working because you had a mortgage, you’ve got two small children …?---

A:Yeah.

Q:And then it got worse and worse.  Is that the evidence that you give me?---

A:Yes.

Q:And then since the operation, things have been really bad?---

A:Really bad.

Q:So is that a fair summary of the difference pre-2003 and afterwards?---

A:Yes it is, yeah.  I had a pretty good life.”

(u)     he estimates that he has moved approximately 40,000 horses over his working life.  From time to time horses misbehave;[126]

[126]T212, lines 24-31

(v)      in the February 2007 incident when he was struck in the chest and pinned by a horse that reared forward, he suffered fractured ribs and chest and right lung trauma.[127]  He agreed that his back would have been involved in that injury: “… yeah, my word”.[128]  He clarified that “… it could have been halfway up my back, top of my back …” and that he did not recall “… the total injury as such … I don’t know whether it was … my front … ribs or my back ribs that were fractured …”.[129]

[127]T213-215

[128]T216, lines 1-22

[129]T217, lines 1-22

(w)     he recovered from the injuries sustained on 7 February 2007, although they were very painful at the time.  He began taking OxyContin and OxyNorm at this time.[130]  He cannot recall a worsening of his back pain at this time.[131]  He did not agree that the injury event in 2007 “tipped you even further down the chute as far as your back was concerned and your back got even worse after 2007”.[132]  He said that it was from the 2003 accident that “it got worse than what it had ever been after that”.[133]  It was from that time that he started getting back pain “nearly every day”;[134]

[130]T253, lines 24-27

[131]T255, lines 1-4

[132]T255, lines 13-21

[133]T255, lines 22-29

[134]T256, lines 1-5

(x)      he has continued to take narcotic medication since 2007, although he kept working at Mornington Cranbourne Floats.  He first started taking that medication was when he was kicked by a horse.  The reason he kept taking it was because of his back problem, which continued to worsen over time:[135] “Not from 2007.  It just continually got worse after the accident in 2003”;[136]

[135]T254, lines 22-31

[136]T256, lines 10-14

(y)      when he was working as the operations manager for Sydney Horse Transport, some days he would work fourteen to sixteen hours, twelve of which would be spent driving;[137]

[137]T256, lines 15-25

(z)      even when he was at Garrett & Griffiths, he has never worked an eight-hour day in his life.  It was terribly hard work, normally fourteen to fifteen hours, six days per week.[138]  All the float companies work the same way;[139]

[138]T257, lines 9-126

[139]T258, lines 10-11

(aa)   when he stopped working, he was seventy-one.  He had intended to retire “at some stage”.[140]  He denied that he had intended to retire at seventy in any event: “because I was registered with the Melbourne Racing Club (MRC)”.  He said that when he could not drive trucks anymore, he would work intermittently with MRC at Sandown, Caulfield and Mornington, because of his experience.  He could have done that until he was eighty[141] “hopefully three days per week”;[142]

[140]T258, lines 12-16

[141]T258, lines 17=29

[142]T259, lines 1-2

(bb)   he agreed that he had contracted pneumonia “a few times … because of the problems with my throat, it was affecting my chest”;[143]

[143]T259, lines 16-22

(cc)    it was put to him that he had experienced leg problems that were unrelated to his back condition.  He said that he has had investigations in the past and people have mentioned “plantars” to him; however, in relation to the pain down into his feet, he said that it was “since the operation” that he has had trouble walking:  “… I’ve got pins and needles all the time, since I had the operation, from my knees to my feet …  If I’m in bed I can’t have the doona over my feet because of the pain it causes … the operation didn’t work …”;[144]

[144]T260, lines 5-18

(dd)   he agreed that he told Mr Timms that he has a burning sensation in his feet and that he was struggling with them.  He said that this is what makes it difficult to walk;[145]

(ee)   he disagreed that this issue alone would have caused him to stop working: “I’d probably try to struggle through with that, but with all the other things, no …”.[146]  In relation to the work he was hoping to get from MRC, he agreed that because of the burning sensation in his legs and feet, “I wouldn’t be able to stand up all day”.[147]

[145]T260-261

[146]T261, lines 11-21

[147]T262, lines 14-26

Matters relevant to the extension of the limitation period

45   The plaintiff gave the following evidence which was relevant to the extension application:

(a)   the truck and horse float that he was using at the time of the incident was owned by his employer.  He drove it regularly before the incident;[148] 

[148]Exhibit P1, page 32

(b)   he understands that the explanation for the incident is that because the ramp door had been pushed up and manually closed, the hydraulics were full of air, not fluid, and this meant that the door fell when the latches were released;[149]

[149]Exhibit P1, page 32

(c)   he was not aware of this risk at the time of the incident.  He had not been warned of it by his employer, nor had he been instructed not to stand in front of the door when opening the latches.  There were no signs warning of any risk.[150]  He had not previously experienced any issue with the float door prior to the incident;[151]

[150]Exhibit P1, page 32

[151]Exhibit P1, page 33

(d)   he is not aware of where the truck and horse float that were involved in the incident are now;[152]

[152]Exhibit P1, page 32

(e)   prior to the incident, the trucks at Justice Transport would be serviced periodically by a mechanic employed by Justice Transport;[153]

[153]Exhibit P1, page 32

(f)    regarding the details of the accident, back in 2003, he knew that someone other than him had put the door up, and that there were only a limited number of people who could have done that.[154]  He agreed that he knew it must have been someone else’s fault that he was injured;[155]

[154]T133, lines 9-15

[155]T133, 16-27

(g)   over many questions, by his answers, the plaintiff demonstrated a very clear understanding of what caused the incident.[156]  He said that he had talked to a mechanic working for the employer about what happened “within a few weeks” of having got back to work.[157]  He acknowledged that the Claim Form which was filled in on his behalf, referred to both an “attached note” as to the incident details and who was responsible, and an “attached list” of witnesses to the incident.[158]  He said that “the attached list was done by Jackie Burton who was administrations manager for the company”.[159]  He said that there “would have been” documents attached to the Claim Form,[160] but he had never seen the documents, “it was just the WorkCare claim form that I filled out”;[161]

[156]T133-135

[157]T139, lines 1-14

[158]T136, lines 1-31

[159]T136, lines 24-30

[160]T137, lines 10-24

[161]T137, lines 2-6

(h)   he said that it is still his belief now that whoever put the door up is responsible for his injuries.[162]  He cannot now recall the names of the witnesses, although he has been shown photographs of some people;[163]

[162]T137, lines 30-31

[163]T138, lines 1-5

(i)    although he thought someone was responsible for his injuries, and he knew that his back had gotten worse as a result of the incident, he never spoke to anyone about what legal action he could take.  His wife is a legal secretary.  He never discussed whether he had a claim with any of her colleagues.[164]  He agreed that he would not have had to take time off work to get legal advice, had he wanted to do so;[165]

[164]T148, lines 11-30

[165]T264, lines 17-31

(j)    the incident was reported to the employer very soon after it occurred.  The details of the injury were recorded by the employer in a “Register of injuries” document completed on 23 July 2003 by Allen Reeves;[166]

[166]Exhibit P1, pages 33 and 60

(k)   the register of injuries identifies three witnesses to the incident, who were employees of Freedman horse trainers:  Michael Flemming, Shana Cridland and Erin Matera.  This accords with the plaintiff’s memory that there were Freedman employees in the vicinity of the incident at the time it occurred;[167]

[167]Exhibit P1, page 33

(l)    he is not aware of whether the employer undertook any inspection, repairs or maintenance on the truck door after the incident.  He recalls that the truck and float continued to be used after the incident;[168]

[168]Exhibit P1, page 33

(m)     it was only when he was forced to cease work in 2017 and went to see Mr Timms, that he realised the extent of his back injury.[169]  Up until that time, although he had experienced back pain and had some treatment, he had continued full-time employment until he commenced with Condos Transport;[170]

[169]Exhibit P1, page 28

[170]Exhibit P1, page 28

(n)   he first attended upon a solicitor in relation to the incident in January 2018, when there was a dispute as to whether Mr Timms’ account should be paid by his private health insurer or WorkCover;[171] 

[171]Exhibit P1, page 28

(o)   prior to that time, he had no knowledge that he could have taken any steps or had any rights or entitlements as a result of the incident.  Up until that time he had given no consideration to whether or not anyone was at fault or whether there were any failures or omissions by his employer or anyone else that caused the incident;[172]

(p)   he deposed to having made three Workcover claims prior to the incident.[173]  He deposed to lodging a WorkCover Claim Form in relation to the incident.[174]  He deposed to having made at least three WorkCover claims for injuries after the incident.[175]

[172]Exhibit P1, page 28

[173]Exhibit P1, pages 29-31

[174]Exhibit P1, page 34

[175]Exhibit P1, pages 36 and 37

Relevant subsequent injury events

46   As referred to above, the plaintiff has deposed to suffering a number of injury events after the accident, which necessitated increased medication and/or time off work.[176] 

[176]Exhibit P1, pages 36-37

47   The first of these events was in February 2007, being an injury to the plaintiff’s chest, where he sustained fractured ribs.  He said that the fractured ribs were very painful and the management of that pain required the prescription of Oxycontin.[177]  He subsequently recovered from those injuries.[178]

[177]Exhibit P1, page 36

[178]Exhibit P1, page 36

48   The second event was in November 2007, when the plaintiff’s thumb was injured, involving a severed tendon.  That injury required surgical repair.  The plaintiff made a good recovery.[179]

[179]Exhibit P1, page 37

49   The third event was in September 2008, involving an injury to the plaintiff’s left ankle and Achilles tendon.  He made a good recovery from that injury.[180]

[180]Exhibit p1, page 37

50   The fourth event was also in late 2008, when the plaintiff was kicked by his daughter’s horse and developed a lot of bruising in his leg.  He was diagnosed with “compartment syndrome” at Dandenong Hospital.  The condition resolved without the need for surgery, and he recovered well.[181]

[181]Exhibit P1, page 37

51   The plaintiff was cross-examined about the detail of many of these injuries.  It is a key part of the defendant’s case that in particular, the February 2007 incident was a key factor in precipitating the pain from which the plaintiff now suffers.

52   Apart from the evidence set out above which the plaintiff gave during cross-examination in relation to this incident, I am mindful of the fact that in his affidavit sworn 28 March 2019,[182] the plaintiff specifically said, in relation to the relevant 2007 injury incident: “My back was not injured in the February 2007 incident.”  Similarly, the Dandenong Hospital notes in relation to this incident record “no back pain” when the plaintiff presented to the hospital.[183]  The plaintiff’s WorkCover Claim Form dated 27 February 2007 describes the injuries suffered as “fractured ribs, chest and right lung trauma”.[184] 

[182]Exhibit P1, page 36

[183]Exhibit P1, page 254

[184]Exhibit P1, pages 78-80

The issues

The Plaintiff’s credit

53   It was conceded by Counsel for the plaintiff that at some points during his oral evidence, the plaintiff found the process of giving evidence difficult and frustrating.  The submission continued:

“At times he appeared to find it difficult to answer questions responsively.  At times he appeared to find it hard to articulate his answer.  At times he appeared to be confused and fatigued.  Unsurprisingly, at times during his oral evidence the plaintiff found it difficult to remember details in relation to events which occurred between 10 and 20 years ago … .”[185]

[185]Plaintiff’s written submissions in relation to the s134AB application, paragraphs 9-10

54   Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was a co-operative witness who appeared to be doing his best to give accurate responses to the questions asked of him.  During cross-examination, apart from the difficulties noted above, he gave his evidence openly and without embellishment.  He made concessions which were disadvantageous to his case.  He did not quibble or prevaricate in relation these matters.

55   Furthermore, I find that the plaintiff's account of events has remained consistent throughout the period during which he has seen his treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court. 

56   After a consideration of all the evidence and in particular, the evidence of the plaintiff, I consider that he was a credible witness, in the sense of being a truthful person.  At no time did I gain the impression that he was attempting to mislead the Court, or exaggerate his symptoms. 

Stoic plaintiff

57   I also formed the view that the plaintiff is extremely stoic in relation to his condition.  Despite the evident pain that he has constantly suffered since 2003, he has continued trying to work to support his young family, even though he is often unable to avoid activities which cause him pain and despite the advice of his treating general practitoiner, referred to below, that he needed to stop working.

Comparison of pre and post-incident presentation – relevant medical evidence

58   Many medical reports were tendered into evidence.  I have read all of the medical reports and assessed them for relevance.  In this section, I refer to those reports which are relevant to the question of the plaintiff’s pre and post-accident presentation and what contribution the accident made to the plaintiff’s present symptoms.

Pre-accident presentation

59   The medical experts who were able to comment on the plaintiff’s pre-incident condition are Mr Michael Pullar and Dr Robert Marshall, viz:

(a)   the plaintiff relied upon four separate reports dated 8 June 2000, 21 June 2000 and 7 August 2000 from Mr Pullar, who, in the report dated 21 June 2000, commented:

“Mr. Newman presented to me with mechanical low back pain.  He injured his back about twelve months ago (at work) and was mainly troubled by back pain but this settled with physiotherapy and he was able to get back to work.  About ten weeks ago … he had to drive a truck with a broken seat for an extended period of time.  After this he had quite severe low back pain which hasn’t settled.  He describes an ache down into both legs (the thighs and the calves posteriorly) with pins and needles down into both feet and a sensation of weakness in the legs.

His plain x-rays and CT scan revealed only some bulging of the lumbar discs.  There is no obvious evidence of nerve root compression … .”[186]

[186]Exhibit P1, page 90

(b)   in a report dated 18 September 2001 and directed to the defendant’s agent, Dr Robert Marshall commented:

“… He was originally injured on 17.05.2001 … when a … [horse] kicked him in the back with both hooves …

…

… Mr. Newman’s problems continued and…about two weeks after his original injury, he was squashed against the wall of the horse float by another horse and this made his back very painful indeed…Finally he was x-rayed and to everyone’s consternation this showed that he had suffered a partial collapse of the lung and had no doubt ruptured some bullae in the lung at the time of the original injury … he was put off work.

He recovered with this conservative treatment and was able to return to work three weeks ago after he had been off work for eight weeks with his chest problems.

He still has some back pain in his lumbo-sacral region but this is permanent and he had this before he was kicked … He has learned to live with a degree of chronic backache which he has had ever since he had a disc lesion many years ago.  He said, reasonably enough, that the kick from the horse had somewhat aggravated his underlying problem.

There is now nothing to find on examination.  There is no neurological, muscular or joint deficit to be detected in relation to Mr. Newman’s back.  His chest is clear to examination and he appears to have made a complete recovery.  He still complains of some pain on full flexion of his lumbar spine but there are no specific features.

…

I believe that Mr. Newman has now recovered from the effects of his injury ... He has now returned to work and is doing normal work without any problems.  He requires no further treatment and no restrictions are necessary … .”[187]

[187]Exhibit P1, pages 128-129

Post-accident presentation

60   Both prior to and following the accident, the plaintiff saw his treating general practitioner, Dr Malcolm McCowan.  In a report dated 31 July 2018, Dr McCowan stated:[188]

“Mr Newman was injured at work on 23/7/2003.  He was working as a horse float driver when the hydraulic assistance on the float door failed causing the door to crash heavily on Mr Newman, hitting him in his lower back and pinning him to the ground.  He required hospitalisation…and was off work for about six weeks…Mr Newman attended physiotherapy after the accident but never fully recovered and has suffered from recurring back pain since that time.  This was exacerbated by him continuing to work as a float driver loading and unloading horses, and lowering and raising float doors … .”

[188]Exhibit P1, page 111

61   Dr McCowan was required to attend for cross-examination.  He gave short further evidence-in-chief and was cross-examined at length.  During his viva voce evidence, Dr McCowan said the following:

(a)   he has treated the plaintiff for well over twenty years;[189]

[189]T168, lines 2-4

(b)   in a report to Cambridge Integrated Services, Insurer, dated 5 January 2004, Dr McCowan expressed the opinion that the plaintiff had “an L4/5 disc problem and degenerative lumbar disease, which has been acutely exacerbated by his injury in July”.  He continues to hold this opinion;[190]

[190]T166, lines 18-23

(c)   he continues to hold the opinion that the July 2003 workplace accident is a significant contributing factor to the plaintiff’s present problems.[191]  He said: “I think Mr Newman suffered a significant injury in 2003 and I think it has continued to significantly impair him from that period of time.  It has decreased his ability to work and it’s significantly decreased his quality of life … .”[192]  He described the plaintiff as “significantly worse” since the July 2003 accident and because of that accident;[193]

[191]T166, lines 24-28

[192]T167, lines 8-12

[193]T167, lines 13-20

(d)   he explained the pain which the plaintiff experiences radiating down the posterior aspect of both legs, down to his feet in the following way: “That will be spinal cord compression where the nerve, the disc pops out in the front and puts pressure directly on to the spinal cord rather than the nerves going down one leg or the other”;[194]

[194]T173, lines 15-24

(e)   he acknowledged that the plaintiff had “significant disc problems” before 2003;[195]

[195]T174, lines 11-16

(f)    while the plaintiff did return to work after the 2003 incident, “he had significant ongoing issues … He struggled with work after that.  … I don’t know how many times I told him that he really shouldn’t be working.”[196]  When challenged again about this issue later in cross-examination, he confirmed his opinion that after the 2003 incident: “I think it’s accurate to say that [his back problems] got worse … ”;[197] 

[196]T182, lines 1-10

[197]T186, lines 24-30

(g)   he said that the reason he told the plaintiff that he should not be working was “simply he struggled through the day.  He was having trouble doing the work.  He enjoyed the work.  He felt the need to look after his young family so he continued doing something that he loved, dealing with horses, but that wasn’t doing him any good … he was coming in, complaining of pain, complaining that he was struggling, and his work wasn’t helping him … He certainly lived every day in pain and he coped and continued to work and he continued to work for many years.”[198]

[198]T206, lines 1-14 and T209, lines 2-9

(h)   when it was put to Dr McCowan that the plaintiff had always struggled with back pain after 1999, he said: “… he had ongoing problems after ’99, yes, and he had significantly worse problems after 2003”;[199]

[199]T182, lines 11-14

(i)    he thought there was a difference between the pre-incident and post-incident imaging, especially at the L4-5 level.[200]  He said however, that in his opinion, even the absence of a significant difference on an imaging study, would not call the plaintiff’s account of his pain into question;[201]

[200]T190-193

[201]T207, lines 16-19

(j)    he did not agree with the proposition that given the heavy nature of the plaintiff’s work and all the various traumatic incidents he had experienced over his working life, even without the July 2003 accident “it’s very likely … that his back condition would be as bad as it is now …”.  In response to this proposition, he said: “No, I don’t know I’d agree with that … if we’re talking about the balance of probabilities, I believe that [the 2003] injury was significant to him.”  He said that he was confident in this opinion;[202]

[202]T196, lines 1-17

(k)   he said that he thinks that the July 2003 accident is significant to the plaintiff because since that time, the plaintiff has experienced significantly increased symptoms.  He has seen “quite a change” in the plaintiff’s presentation; [203] 

[203]T196-197

(l)    where there is a change in presentation which is proximate to a known incident causing trauma to the relevant area, he said that “without a doubt” on the balance of probabilities, he is able to say that such an incident has caused that exacerbation;[204]

[204]T196-197

(m)     he said that the known incident of trauma in July 2003 to the plaintiff’s spine, made it more likely that he would need surgical intervention at a later time:[205] “It was a significant cause of his back … [deteriorating] further … which led to the surgery …;”[206]

[205]T198-199

[206]T209, lines 17-19

(n)   he “completely” disagreed with the opinion of Dr Menz, that “the injury sustained in July 2003 did not do any permanent damage to [the plaintiff’s] spine other than bruising and a sprain to his spine from which he made a good recovery”.[207]  He said that he disagreed with the opinion provided by Dr Menz that “the pathology in the plaintiff’s spine is constitutional and would have occurred with or without the injury in July 2003”.  He acknowledged the fact that Dr Menz is more qualified to talk about back injuries, but said: “I still disagree with it”;[208]

[207]T203, lines 2-11

[208]T204, lines 11-19

(o)   he said that the things with which he disagreed with in Dr Menz’s opinion included, the assertion that the plaintiff “made a good recovery”, that the gist of Dr Menz’s opinion was that the plaintiff suffered a “minor” injury, that he characterised the injury as “bruising and a sprain only” and that he said that the plaintiff’s injury did not cause any “permanent damage”.  He said, in relation to Dr Menz’s expertise: “I think he is well qualified to talk about the back injury as he saw it at the time.  I struggle to accept that he can see 16 years in the past without having seen the patient at that time …”;[209]

(p)   he confirmed that the OxyContin and OxyNorm which the plaintiff has been prescribed in the last twelve years, are for his back pain.  He said that the prescription of these medications suggested that the back pain had got worse, in that those medications are significantly stronger than Panadeine Forte, and the plaintiff “was no longer able to cope [on] the Panadeine Forte …”.[210]

[209]T204-205

[210]T209-210

62   In a report dated 19 July 2008, Dr Mark Patrick observed that the plaintiff presented to him with “intractable back into leg symptoms” which limited his ability to stand and increasingly “restricted … with overall physical functioning”.[211]  He said that there is “an aspect of sleep disruption and anxiety related to maintaining his job, which is very demanding.  He is also increasingly on Norspan and Oxycontin type agents for symptom control.”[212]  He concluded: “In the longer term it seems that he will have to make some serious decisions about his capacity to maintain the current pace and physical demand of his work.”[213]

[211]Exhibit P1, page 105

[212]Exhibit P1, page 105

[213]Exhibit P1, page 106

63   Although Dr Patrick does not in his report link the symptoms which the plaintiff reported to any particular incident, he does note the details of 2003 incident as part of the “Problem list” in the introductory section of the report.[214]  The matters set out in the report identify and corroborate the account which the plaintiff has given of his worsening symptoms about this time.  I note that there is no mention of the February 2007 injury incident, or any suggestion that this is the incident which caused a worsening of the plaintiff’s symptoms.

[214]Exhibit P1, page 105

64   Dr Clayton Thomas, a specialist in rehabilitation and pain medicine, examined the plaintiff on 4 December 2018.  In a report dated 6 December 2018, Dr Thomas made the following observations:[215]

[215]Exhibit P1, pages 131-132

“… A more significant event occurred at work on 23 July 2003 …  He was off work for four to six weeks after that and then he commenced a return-to-work process.

Year by year, his pain gradually worsened with back pain and bilateral leg pain.  He remained motivated in his attempts to remain functional and to remain at work.  In 2012, his employer moved him to more management-type positions, more office-based work, where he remained until ultimately he left work from that employer in 2015.  He gained some part-time work after that for a further couple of years in horse transport but this was increasingly problematic to the point that he effectively could not work and he stopped work in 2017.

…

On 4 December 2018, he reports significant lower back pain.  He reports pain down into his legs and both feet.  He feels as if the toes are being ripped off the bone.  He has constant lower back pain.  Activity that involves bending, lifting, twisting, pushing or pulling aggravates the pain substantially.  Sleep is significantly impacted on.  At most, he can sleep three hours in bed.  Most nights, he sits upright out of the bed.  He cannot lie with a doona on his feet, as he feels as if there is a dead weight on them.

…

I would accept that this man developed pain in his lumbar spine as the result of the injury that occurred at work on 23 July 2003 … .”

65   During his viva voce evidence, Dr Thomas gave the following evidence:

(a)   his first consultation with the plaintiff was for a medico-legal opinion.  He has since seen the plaintiff as a patient;[216]

[216]T221, lines 24-30

(b)   there was no imaging available for Dr Thomas at the time of his examination of the plaintiff;[217]

[217]T224, lines 28-29

(c)   when he took his history from the plaintiff, he got the impression that in the 2003 accident, the float door hit him and pushed him to the ground;[218]

[218]T227-228

(d)   the expression “a more significant event,” are the doctor’s words, not the words the plaintiff used;[219]

[219]T229, lines 12-19

(e)   Dr Thomas described the 2003 accident as causing “an aggravation that never abated”;[220]

[220]T229, lines 28-30

(f)    he agreed that just working with horses would cause strain on a person’s lumbar spine;[221]

[221]T231, lines 17-26

(g)   he said that the 2 December 1999 CT scan of the lumbar spine showed “degenerative change, whether [or not] it be aged related … this is a picture which shows spondylosis …”;[222]

[222]T232, lines 13-19

(h)   spondylosis can be caused by the process of time or some specific insult to the spine.  The changes seen on the plaintiff’s imaging at that time are the result of arthritic change;[223]

[223]T232-233

(i)    imaging results are not indicators of the level of pain a person is experiencing;[224]

[224]T233, lines 21-29

(j)    having been directed to the report of a CT scan taken in October 2003, Dr Thomas made the following comments:

“The L3-4 disc looks to be ostensibly the same.  At L5 is the addition of what is now called a focal midline disc bulge.  In the previous imaging it was far right and now it is focal and it is midline.  So there’s a change in … the L4-5 disc.”

asked whether that change would be productive of an increase in symptoms, Dr Thomas said:

“… I mean, if it is new and it is acute then it is relevant …” 

As to how the observed injury came about, he said:

“This would usually be a transmitted force from above, a fall on to the bottom would lead to a focal disc prolapse like this.

…

… not flat like a tree, but more straight down on to the bottom.”[225]

[225]T237, lines 4-12

(k)   he said that an injury like this is “unlikely” to be the result of manual labour “because of the … midline focal disc protrusion.  That’s unusual …”;[226]

[226]T237, lines 23-29

(l)    he acknowledged that if there is a traumatic incident and subsequent to that, a reaction or pain response from the person involved, it is easier to put those two events together and conclude that the event caused the increase in pain.[227]  He agreed that the 2007 incident where the plaintiff was squashed up against a float wall by a horse and suffered fractured ribs, could cause injury to a person’s lumbar spine.  He said that in assessing this, he would be assisted by an account of what pain the individual felt at the time and what symptoms they reported subsequently.[228]  He said that he would connect the incident with an instance of reported aggravation of a pre-existing injury “if the aggravation remained and didn’t return to pre-aggravation levels”;[229]

[227]T245, lines 24-31

[228]T245, lines 6-17

[229]T246, lines 1-6

(m)     when shown the detail of what was reported by the plaintiff to the hospital[230] following the 2007 incident, Dr Thomas said:

[230]T248, lines 5-31

“…The event of … [2003] was substantial.  It led to an apparent fracture of the coccyx.

… There was a disc prolapse seen [on] the CT scan three months later …, which was new.  Likely to be due to force landing on your bottom.  It does seem like that was the aggravation which is substantial and that…since then, his situation has worsened.  It is possible that another event might have occurred but the events that you are describing are more where he is pushed backwards or jarred sideways, not a transitional force to his bottom … the GP may be better able to answer that particular question … .”[231]

[231]T250, lines 1-25

(n)   he disagreed with the proposition that even absent the 2003 accident, the plaintiff may still have had the same deterioration in his spine.[232]  When it was put to Dr Thomas that following the 2003 accident, the plaintiff continued to work for another nine years in a rigorous job (albeit that the general practitioner noticed that he was “struggling”),[233] Dr Thomas responded:[234]

“The imaging … in 2003, the CT scan showed a focal disc prolapse so there’s some disruption to L4-5 after the 2003 episode.  That was not an age related change.  That was due to…trauma happening, and generally a force along the spine, like the fall.  So that L4-5 was injured at that time more likely than not.  So as a consequence of that, [a] long time down the track, that has become more degenerate and leading to the requirement for surgery many years later.”

[232]T249-250

[233]T250-251

[234]T251, lines 7-18

66   Mr Craig Timms, neurosurgeon, has seen the plaintiff on numerous occasions.  In his opinion, expressed in a report dated 11 February 2019, he stated:[235]

“When I first met Mr Grant Newman in my rooms on 11 October 2017, he reported that whilst working as a truck driver, a horse transport operator, he received a traumatic injury to his lumbar spine when a horse door from a truck … [landed] on him.  He was having progressive back pain, sciatica, and trouble walking …

…

My conclusion regarding Mr Grant Newman is that he injured his lumbar spine working in … [the] horse transport industry with a large … [tailgate] hitting him on the back, developing back pain and sciatica.  He has failed to settle with nonoperative measures and has been treated surgically to decompress lateral recess stenosis in his lumbar spine at L4-5.  He has had no significant improvement following the surgery and more recently his symptoms have worsened with burning dysaethesia-type symptoms in his lower limbs.”

[235]Exhibit P1, pages 118-120

67   Although he did not recount the history that was given to him at the time of his examination, in relation to the plaintiff’s foot pain, in a report dated 18 January 2019, Mr Daniel Goldbloom confirmed that the issues which the plaintiff experiences in his legs and feet “are coming from his spine”.[236]  This accords with Dr McCowan’s evidence concerning the origin of the pressure being placed on the plaintiff’s spine, namely the focal mid-line bulge at L4-5.[237]

[236]Exhibit P1, page 126

[237]T173, lines 5-24

68   Mr Roger Westh, orthopaedic surgeon, examined the plaintiff on 18 February 2019.  In a report dated 26 February 2019, Mr Westh said, in the summary of his opinion:[238]

[238]Exhibit P1, page 136

“In summary, Mr Grant Newman is a 72 year old man who injured his back on a number of occasions during the course of his employment with Justice Transport.

He initially injured his back in 1999 with resultant mechanical low back pain and was treated conservatively.  He was able to continue working as a horse float driver.

He suffered a significant back injury at work on 23 July 2003 when he was struck on the back by a loading ramp and knocked to the ground.  It is likely that he sustained an aggravation of underlying degenerative changes in his spine.

Following this injury Mr Newman had ongoing back pain and associated leg pain and over a period of time his symptoms gradually worsened.  He subsequently ceased work in October 2017.  He later underwent spinal surgery in November 2017 with no improvement in his condition.

Mr Newman now presents with features of chronic mechanical low back pain and he also has unexplained symptoms and pain in his lower legs with some features consistent with a possible peripheral neuropathy.  He is being regularly reviewed by his treating doctor and is apparently being referred for consideration of pain management.

… .”

69   Dr Anthony Menz, a consultant orthopaedic surgeon engaged on behalf of the defendant, was of the opinion that “the original diagnosis at the time of the injury in July 2003 was minor age related spondylosis”.  He said:

“I do not believe the door falling on his back caused any significant new pathology to his spine or back. 

The more recent diagnosis in October to November 2017 was spinal stenosis related to disc bulge and facet joint impingement.

… .”[239]

[239]Exhibit D1, page 84

70   In assessing the evidence contained in Dr Menz’s report, I note the particular expertise which Dr Menz enjoys by reason of being an orthopaedic surgeon; however, I take account of the fact that in expressing his opinion, there is no evidence that he had regard to the report of the CT scan dated 24 October 2003, in which evidence of the focal midline disc bulge at L4-5 appears.  Further, Dr Menz mistakenly states that “the original diagnosis at the time of the injury in July 2003 was minor age relates spondylosis”.[240]  I accept the submission made by the plaintiff that there is no evidence that “minor age related spondylosis” was the diagnosis made by any doctor following the accident.  I also note the observation made by Dr McCowan under cross-examination, viz:

“I think [Dr Menz] is well qualified to talk about the back injury as he saw it at the time.  I struggle to accept that he can see 16 years in the past without having seen the patient at that time … .”[241] 

[240]Exhibit D1, page 84

[241]T204-205

71   Lastly, as emerged during the cross-examination of Doctors McGowan and Thomas, it is clear from an examination of the relevant imaging, that Dr Menz’s assertion that the accident caused no significant new pathology to the plaintiff’s back, is simply inaccurate.  I reject the opinion contained in Dr Menz’s report.

Compensable injury

72 The details and occurrence of the incident are not in dispute. In relation to the s134AB application, the only issue raised by the defendant is whether the consequences of the aggravation suffered by the plaintiff in the incident, satisfy the narrative test in the Act.

73   The submission for the defendant stated: 

“The difficulty in this case is that the Plaintiff has failed to adequately separate the consequences of the subject injury compared with all the other various traumata his lumbar spine has been subjected to throughout the course of his working life …

It is not sufficient for the Plaintiff to establish that the subject incident was a cause or indeed a significant cause of the need for him to have surgery. The Court must separate the consequences of this particular incident isolated from all other incidents (as this is not a claim based on the nature and conditions of the Plaintiff’s employment) in order to be satisfied that the Plaintiff satisfies the narrative test under s.134AB.”[242]

[242]Defendant’s written submissions at paragraphs [38]-[40]

74   Having assessed all of the relevant evidence as set out above, I find that for approximately four years prior to the accident, the plaintiff suffered from a lower back condition which resulted in him having intermittent back pain, for which he intermittently took pain-relieving medication. 

75   The state of the plaintiff’s back just prior to the accident is best understood by what was set out in his affidavit sworn 28 March 2019, viz: 

“Immediately prior to the July 2003 incident, I was having intermittent back pain.  My back would flare up sometimes, but it would then settle down again.  Prior to the July 2003 incident, I took Panadeine Forte to manage pain as necessary for my back, not every day.  I was enjoying my work.

… .”[243]   

[243]Exhibit P1, page 31

76   The evidence also indicates, and I find, that the plaintiff was intermittently taking Endone prior to the accident, in the aftermath of the incident which caused the collapsed lung.[244] 

[244]Exhibit P1, page 208

77   In addition to this evidence, as referred to above, during cross-examination, the plaintiff described his pre-accident state as “… good, really … I could go for weeks and it would be great, not bother me …”.[245]  Nothing put during cross-examination undermined this evidence.

[245]T159

78   The evidence demonstrates, and I am satisfied, that the radiological investigations of December 1999 and July 2000 only show arthritic changes in the plaintiff’s lumbar spine, that were unremarkable for a man of his age.  They did not show a focal midline bulge at the L4-5 disc.

79   Taking into account the relevant evidence, I find that prior to the accident, the plaintiff experienced intermittent pain in his lower back, but could go for weeks without his back condition worrying him.  I find that the plaintiff had a good life and he was enjoying his work.  I find that he managed his intermittent pain by taking Panadeine Forte and Endone as required, but not constantly.  There is evidence that by reason of his pre-accident condition, the plaintiff experienced an “ache down into both legs”[246] and “pins and needles down into both feet and a sensation of weakness in the legs”.[247]  The evidence satisfies me that although these symptoms were present, they were not such as to interfere with the plaintiff’s ability to walk, sit or stand for long periods of time.  In the relevant reports before the Court, apart from the reports of intermittent pain and the need to take medication as required, there was no indication that the plaintiff’s life was otherwise adversely affected. 

[246]Exhibit P1, page 89

[247]Exhibit P1, page 89

80   Having considered the evidence about each of the post-accident injury events, especially the February 2007 injury incident, the body parts involved and the plaintiff’s evidence as to the sequalae of each injury event, I accept the plaintiff’s evidence, and find that the plaintiff recovered fully from the injuries sustained in each of these subsequent incidents.  I further find that there is no evidence that the plaintiff suffered a further permanent aggravation to his lumbar spine in or as a result of the incident on 16 February 2007.  Lastly, I find that the day-to-day consequences of the accident which is the subject of this application, are not contributed to in any way by the subsequent injuries referred to above.

81   Having considered all of the medical evidence from both treaters and medico-legal experts from both sides, the weight of the evidence satisfies me that as a result of the 2003 accident, the plaintiff presently suffers from a focal midline disc bulge at L4-5, which caused a permanent aggravation of degenerative changes in the plaintiff’s lumbar spine, including the L4-5 disc.  I find that the unremitting sequalae of this injury necessitated the plaintiff’s surgery in November 2017.

Are the consequences of the accident “serious” for the purposes of the Act?

82   The weight of the evidence satisfies me that the consequences of the 2003 accident to the plaintiff are as follows:

(a)   constant, severe back pain which is unremitting in nature, necessitating surgery in November 2017;

(b)   pain in his legs and feet, described by the plaintiff as a “burning pain” and “as if the toes are being pulled off the bone”.  The origin of this pain was confirmed by Mr Goldbloom to be emanating from the plaintiff’s spine.  Dr McCowan clearly explained the mechanism of such pain and the manner in which that was related to the 2003 accident.  The plaintiff’s evidence, which I accept, was that this pain developed after the 2003 accident, but became “really bad” after the November 2017 surgery; 

(c)   severely interrupted sleep as a result of being unable to bear the weight of the doona on his feet and legs following the surgery – the plaintiff said that he is lucky to get two to three hours of sleep per night and if he wakes, he cannot get back to sleep.  Sometimes he gets up in the night and sits in a chair to try and get some relaxation because sleep is “impossible”;

(d)   the need to take daily, stronger analgesic medication (Palexia), for low back pain following the accident;

(e)   the loss of his ability to work in an industry which the plaintiff loved.  As a result of the loss of his ability to work with horses and the loss of the camaraderie of the racing community, which he had intended to exercise up to the age of eighty at the Melbourne Racing Club, the plaintiff described himself as feeling “shattered”.  He continues to feel upset when he thinks about having to stop work;

(f)    the loss of the ability to be generally active.  In particular, the low back pain which radiates into the plaintiff’s legs, has affected his balance and causes him considerable difficulty with walking.  Similarly, any activity involving bending, squatting, twisting or lifting increases the plaintiff’s back pain which then spreads into his legs, with the result that he is now very inactive: “I could water the garden but do nothing heavier than that”;

(g)   sitting for more than twenty to thirty minutes causes the pain in the plaintiff’s back to increase.  This means that his ability to drive for more than twenty to thirty minutes is also affected.

83   I find that each and every one of these consequences is a new consequence suffered by the plaintiff as a result of the injury that he suffered in the accident on 23 July 2003.

Is the compensable injury permanent for the purposes of the Act?

84   Having considered the relevant reports from Dr McCowan,[248] Dr Thomas,[249] Mr Westh[250] and Mr Timms,[251] I find that the plaintiff is likely to continue to suffer from increased symptoms in his lumbar spine for the foreseeable future. Thus, I find that the injuries sustained by the plaintiff in the 2003 accident are permanent for the purpose of the Act.

[248]Exhibit P1, page 112

[249]Exhibit P1, page 132

[250]Exhibit p1, page 136

[251]Exhibit P1, page 116

The application for an extension of the limitation period

85   The principles applicable to the determination of an application for an extension of time under the LAA are set out above. 

Submissions in relation to the extension application

86 In this case, it was conceded that there was a delay of almost fifteen years between the time that the plaintiff suffered injuries in the accident on 23 July 2003 and the time that his s134AB(4) “serious injury application” was lodged with the Victorian WorkCover Authority, on or around 10 April 2018.

87   The reasons proffered for the delay by the plaintiff are set out in paragraph 6 of his affidavit sworn on 11 September 2018, viz:[252]

[252]Exhibit P1, page 28

(a)   it was not until the plaintiff had finally ceased work in October 2017 due to back pain, that he realised the extent or significance of his back injury.  Up until that time, the plaintiff had always been able to continue working, despite continuing and increasing back pain;[253] 

[253]Exhibit P1, page 28

(b)   the plaintiff did not consult solicitors in relation to his rights or entitlements arising from the injuries he suffered in the accident until January 2018.  The January 2018 consultation was triggered by a dispute as to whether the surgery performed by Mr Timms in November 2017, should be paid by the plaintiff’s private health insurer or by the WorkCover agent;[254] 

[254]Exhibit P1, page 28

(c)   before January 2018, the plaintiff had not received any legal advice as to any right that he might have to bring a claim for common law damages arising from the injuries that he received as a result of the accident;

(d)   before January 2018, the plaintiff had not given any consideration to whether or not there were any acts, omissions or fault on the part of the employer, that was a cause of the accident on 23 July 2003, which resulted in his injuries.

88   Taking these matters into account, it was submitted on behalf of the plaintiff that it could not be said that once he became aware of his right to bring a claim for common law damages against the employer for the injuries he sustained as a result of the 2003 accident, he then “sat on his rights”. To the contrary, it was submitted that after consulting solicitors in January 2018 and receiving legal advice, the plaintiff acted promptly by lodging his s134AB(4) “serious injury application” in April 2018.   Moreover, after the draft Defence was served in August 2018 pleading a limitations period defence, the plaintiff also acted promptly by filing a Summons in September 2018, making an application to extend the limitation period. 

89   The plaintiff further submitted that the delay was unlikely to cause any significant prejudice to the employer or the Victorian WorkCover Authority as its indemnity provider, because:

(a)   the accident was reported to the employer within 24 hours of it occurring;[255]

[255]Exhibit P1, pages 33-34; exhibit D1, page 63

(b)   on 29 July 2003, only six days after the accident, the plaintiff submitted a WorkCover Claim Form in relation to the injuries that he suffered in the accident, which was promptly responded to by the employer, who completed an Employer Claim Report dated 5 August 2003;[256]

[256]Exhibit P1, pages 34-35 and 62-66

(c)   by letter dated 4 September 2003, the claim was accepted by the employer’s WorkCover claims agent, Cambridge Integrated Services.  This presumably occurred after the employer and/or Cambridge Integrated Services had conducted enquiries to satisfy themselves that the plaintiff had suffered injuries in the accident, as described in his WorkCover Claim Form;[257]

[257]Exhibit P1, pages 34-35 and 68-75

(d)   hence, there was prompt notification by the plaintiff to the employer, the occurrence of his accident, the injuries suffered in it and the circumstances of that accident.  This is not a case where the employer finds out for the first time about an alleged incident and injury many years after the date of the alleged incident;

(e)   the Court should infer from the acceptance of the plaintiff’s claim by Cambridge Integrated Services, on behalf of the employer, and the subsequent payment of the plaintiff’s medical expenses and some weekly payments of compensation, that in or around late August 2003, that Cambridge Integrated Services on behalf of the employer, investigated the plaintiff’s claim for compensation with a sufficient degree of thoroughness to enable it to make a decision to accept that the employer had a liability to pay compensation to the plaintiff in respect of the injuries he suffered in the accident;

(f)    the plaintiff has had the same treating general practitioner, Dr McCowan, since at least 1999 until the present time.  The defendant has had access to Dr McCowan’s records and various reports that he has written over the last twenty years.  Therefore, no prejudice arises through lack of access to records or reports of the plaintiff’s treating general practitioner.  Similarly, both Court Books contain numerous medical reports from the plaintiff’s treating specialist medical practitioners from 2000 through to the present time;

(g)   the records of the Dandenong Hospital in relation to the plaintiff’s attendance on 23 July 2003 and the ambulance report from that day are also available;[258]

[258]Exhibit P1, pages 95-102 and 93-94

(h)   the affidavit of Tim Foster sworn on 19 March 2019 relied upon by the defendant, does not establish any specific prejudice that will be suffered by the employer or by the Victorian WorkCover Authority, by reason of the delay.  Mr Foster was able to speak with numerous individuals who were employees of Justice Transport Pty Ltd as at July 2003, including Allen Reeves, Robert Justice and Garry Condon.  The mere fact that they were reluctant to cooperate with Mr Foster’s investigation does not establish prejudice, and certainly not prejudice caused by delay;

(i)    while Mr Foster was not able to contact Ms Jackie Burton, she has, in any event, provided an affidavit sworn on 29 March 2019.[259]  Mr Garry Condon has also provided an affidavit sworn on 29 March 2019;[260]

(j)    the affidavit of Tim Foster only relates to the investigation of the plaintiff’s claim which took place in 2018.  The defendant has placed no evidence before the Court as to what investigation was made in relation to the plaintiff’s claim in 2003, after the accident was reported to the employer and the plaintiff’s WorkCover claim was lodged.

[259]Exhibit P1, pages 196-197

[260]Exhibit P1, pages 202-204

90   In response, the defendant made the following submissions:

(a)   the plaintiff has not provided a reasonable explanation for the delay, asserting only that it was not until the extent or significance of his back injury was made plain in October 2017 when he finally ceased to work, that he was alerted to the fact that he may have a cause of action;

(b)   by contrast, the plaintiff has in fact brought numerous proceedings in the past for common law damages.[261]  He has lodged numerous WorkCover claim forms for various injuries sustained whilst working for the employer and also his previous employer;

[261]Exhibit D1, page 21

(c)   in relation to this claim, the plaintiff had attached a note giving an explanation as to why he thought that the injury was sustained as a result of the fault of another person.  He also reported to Mr Malcolm Thomas, orthopaedic surgeon, that:

“... he had left it (the float door) down and another driver had put the float ramp up in order to get his truck out, but it hadn’t been secured properly.”[262]

[262]Exhibit D1, page 136

(d)   given this, it is clear that from soon after the date of the accident, the plaintiff knew that somebody was at fault in relation to the accident;

(e)   the employer has suffered substantial specific and general prejudice in defence of the plaintiff’s claim as a result of the plaintiff’s delay, viz:

(i)     the death of the director of the employer, Mr Robert Justice;

(ii)     the absence of the attachments to the plaintiff’s Claim Form about the further circumstances of his injury.  It is apparent that there was further information appended to the Claim Form,[263] but the whereabouts of that material is unknown;

[263]T136-137

(iii)    the employer was deregistered approximately four years ago.  This fact, together with the death of the director, increases the likelihood that any relevant documents that may have been in the possession of the defendant will be difficult to locate;

(iv)    the absence of any evidence from any person who was a witness to the incident.  The defendant says that the affidavits obtained by the plaintiff from Ms Burton and Mr Condon can shed no light on the circumstances of the incident;

(v)     the existence of a report of injuries and the contemporaneous record of the incident itself (in the Claim Form) should not be used to infer that the defendant or its insurer has conducted a thorough investigation of the incident. There is also no evidence of any factual investigation at that time into the circumstances of the incident;

(vi)    the plaintiff gave evidence about having spoken with a mechanic about reasons why the ramp fell on the plaintiff as sharply as it did.[264]  There is no evidence as to the identity of the mechanic or whether that person is available to be contacted at all;

[264]T138-140

(vii)   the plaintiff gave evidence about a strapper being present when he was injured in the accident.[265]  The identity of that person is unknown;

[265]Exhibit P1, page 27

(viii)  the introduction of the identity of Mr Maley in the letter of termination,[266] is an avenue of enquiry which has not yet been explored but, given the passage of time, and also the fact that the business was purchased at least ten years after the subject injury, it is unlikely that the purchaser of the business would have any knowledge of the circumstances of the incident;

[266]Exhibit P1, page 205

(ix)    the plaintiff gave evidence of people who attended him on the date of the injury, the identity of whom are all unknown.  Given the fact that it is well over fifteen years since the accident occurred, the likelihood that any such witness will be located is very slim indeed; 

(x)     the uncertainty as to the identity of the actual truck the plaintiff was working on at the time introduces an element of prejudice.  It is unknown whether the truck is still available or where it may be located.  It is not known whether it was transferred to Mr Maley in the sale of the business.  The absence of knowledge of the model of the truck or the type of hydraulics used in the ramp, may affect any conclusion that is drawn about how such hydraulic mechanisms operated.  This will undermine the weight of any expert evidence that may be led by the parties in determining the question of liability.  The photographs appended to the plaintiff’s affidavit are only of a very similar horse float.[267]

[267]Exhibit P1, page 32

91   As to general prejudice of the kind referred to by McHugh J in Brisbane South Regional Health Authority v Taylor,[268] the defendant submits that as a result of the delay by the plaintiff in commencing his proceeding, any trial of the action after pre-litigated steps have been completed, is not likely to take place until 2020 or 2021, between seventeen and eighteen years after the incident.

[268]Supra

92   The paramount consideration for the Court in synthesising the various factors relevant to this application is whether the defendant could be afforded a fair trial.  The extreme delay, which itself speaks of significant general prejudice, when matched with the specific prejudice referred to above, means that if the application for an extension of time is granted then the defendant will be denied the ability to have a fair trial.

93   For the reasons set out above, the defendant submits that the plaintiff’s application for an extension of a limitation period should be refused.

Analysis of the arguments

94 As can be seen, the submissions from both parties focussed on issues of delay and prejudice. I will also address each of the other matters referred to in s23A(3) of the LAA.

95 The matters referred to in s23A(3)(a) and (b) of the LAA are not relevant to this matter.

96   The plaintiff’s evidence is that he only became aware that he might have had a cause of action against the defendant when realised the nature and extent of his injuries in late 2017.  The plaintiff also acknowledges that from very shortly after the occurrence of the accident, he knew that someone else was at fault.  The plaintiff has not given evidence that he knew at any stage prior to receiving legal advice, that he might have had a relevant claim against the employer.

97   The defendant submits that the plaintiff must have known that he had or may have suffered a compensable injury, given his involvement in previous WorkCover proceedings for damages.

98   I do not accept that the mere fact that a plaintiff has participated in previous or subsequent WorkCover proceedings for damages in respect of other injuries, gives rise to a necessary inference that the plaintiff knew that he had or may have suffered a compensable injury in relation to the 2003 accident. 

99   The complexities of the Accident Compensation regimen in this State are such that unless a person is legally qualified, it is not reasonable to impute a knowledge of their rights under that scheme, without the input of expert legal advice.

100 I accept the plaintiff’s evidence that he did not consult a lawyer in relation to the consequences of his injury, until a dispute arose about who was responsible for paying Mr Timms’ account for the surgery that was performed upon the plaintiff. That occurred in late in 2017. The plaintiff’s s134AB claim was issued on or about 10 April 2018. The summons for an extension of time under the LAA was filed promptly, once it became apparent that a limitation of actions defence was to be taken in this matter.

101 In those circumstances, taking into account the plaintiff’s state of knowledge and the complex nature of the law in this area, I accept the plaintiff’s submission and find that he acted promptly and reasonably once the availability of a claim became known to him.

102 The medical evidence, which is set out above in relation to the application for leave to bring proceedings for damages, demonstrates that the plaintiff sought immediate medical assistance in relation to the injuries suffered in the 2003 accident. 

103 It is clear from an examination of the documents produced and relied upon by both parties in this matter, that all records which would allow a full analysis of the plaintiff’s medical presentation both prior to and after the 2003 accident, are still in existence.  Further, the plaintiff has had the same treating general practitioner for many years.  That doctor is still alive.

104 In this case, there is no evidence that the plaintiff could recover damages against his solicitors in a professional negligence claim, given that he did not consult them until January 2018.  Hence, this factor is of no relevance in this case.

105 It is clear on the evidence and was agreed by both parties that the length of the delay was in excess of fifteen years.  I accept the submission made by the defendant that this delay in and of itself speaks of significant general prejudice.

106 The reasons for the delay are referred to above.  I have already accepted the plaintiff’s evidence in relation to this point.  I also accept that the reasons advanced are genuine and that there was no deliberate decision on the plaintiff’s part not to take action which he was aware was open to him.

107 The defendant alleges that in this case, it has or will be likely to suffer significant specific prejudice.  The particular matters raised by the defendant are as follows:

(a)   the inability to call a number of witnesses.  The director of the employer, Mr Robert Justice, has recently died.  The defendant asserts that other witnesses who may possess or be able to give relevant evidence are either unavailable, or cannot be found.  The evidence relied upon to make this argument is an affidavit sworn by Mr Tim Foster, sworn 19 March 2019;[269] 

[269]Exhibit D1, pages 5-7

(b)   the employer has been deregistered for some time.  There has or is likely to be a loss of many relevant documents;  and

(c)   it should not be inferred that any contemporaneous investigation of the circumstances of the accident was conducted;  and

(d)   the defendant has not located the truck which was involved in the accident and is unlikely to be able to do so.

108 As to the argument concerning the inability to identify and call relevant witnesses, the defendant acknowledges that Ms Jackie Burton and Mr Gary Condon are available but says that the affidavits they have each sworn in this proceeding “can shed no light on the circumstances of the incident”.

109 While it may be true that neither Ms Burton nor Mr Condon were witnesses to the 2003 accident, it is clear that each have some recollection of the fact that it occurred.  There is no evidence that either witness has exhausted their memory as to the 2003 accident, or as to matters which may lead to further avenues of enquiry, particularly in relation to the identity of any other people who might be witnesses or be in possession of other relevant information.

110 Furthermore, Mr Foster’s affidavit does not shed any light on whether the other people who were named as potential witnesses at the time of the accident are in fact alive and available to give evidence at any trial of the matter.  As is evidenced by the fact that both Ms Burton and Mr Condon have since come forward and been prepared to swear affidavits, the enquiries made by Mr Foster could hardly be described as wide ranging or exhaustive attempts to locate relevant witnesses.

111 Further, Mr Foster’s affidavit does not disclose any enquiries which he made to identify or locate either the strapper referred to by the plaintiff, the relevant mechanic who the plaintiff spoke to after the 2003 accident or those people who attended upon the plaintiff in the aftermath of the accident.  Thus, there is no evidence before me that these potentially relevant witnesses have been sought out, but attempts to locate them have been in vain, or that they are or might be unavailable to give evidence at any trial of the matter.

112 The defendant admits that the new owner of the company, Mr Adam Maley, may be a relevant avenue of enquiry which has not yet been pursued, but asserts that “given the passage of time, and also the fact that the business was purchased at least 10 years after the subject injury, it is unlikely that the purchaser of the business would have any knowledge of the circumstances of the incident”. 

113 While Mr Maley’s knowledge of the incident may be sparse or non-existent, nevertheless, there is no evidence before the Court to indicate that he is unable to shed any light on relevant matters such as the whereabouts of the truck involved in the incident, or even its make and model, which as is acknowledged, are all relevant facts which form part of the matrix of this case. 

114 There is simply no evidence before the Court that the defendant has made all reasonable attempts to locate all relevant witnesses, but has failed in this endeavour.  In those circumstances, I am unable to be satisfied that there is evidence of specific prejudice to the defendant by reason of the unavailability of relevant witnesses.

115 As to the argument concerning the loss of documents, there is no evidence before me that the defendant has conducted any enquiry, let alone a thorough enquiry as to the whereabouts of relevant documents, but has been unable to locate them. 

116 There is before me clear evidence that certain documents pertaining to the identity of potential witnesses and the mechanism of the accident, were sent to the defendant or its agent shortly after the accident.  There is no evidence before me that the defendant has conducted a search for this documentation and that it has not been able to be located.  There is merely an assertion about this fact in the submissions made by the defendant.

117 A more important consideration is what might have been lost by reason of the fact that the two attachments to the Worker’s Claim Form[270] may have gone astray. 

[270]Exhibit P1, pages 62-64, especially page 63

118 One of those attachments contained the names of potential witnesses to the incident.  However, the evidence indicates that the names of those potential witnesses appear in two other documents, the first being the employer’s Register of Injuries[271] and the second being the Employer Claim Report.[272] 

[271]Exhibit P1, page 60

[272]Exhibit P1, pages 65-66

119 The second attachment was said to be a “Note” which set out why the plaintiff thought that his injury or condition may have been caused or contributed to by a third party.[273]  Relevantly, however, the front page of the Worker’s Claim Form document contains a question concerning what happened to cause the accident, the answer to which reads:  “The hydraulic ram failed when undoing locking pins”. 

[273]Exhibit p1, page 63

120 This is the same version of events which the plaintiff gave in evidence during this hearing.  Further, the plaintiff expanded upon this during his evidence, when he said that it had been explained to him that the reason the hydraulic ram failed, was that the door had been lifted manually, and there was therefore air, not fluid in the mechanism.  Thus, it could not be said, even if it transpires that these attachments cannot be located, that the absence of those documents will prejudice the defendant from knowing who the plaintiff listed shortly after the accident as being potential witnesses to it, or as to the plaintiff’s belief about what caused the accident.  This information is contained in various forms in the relevant documents, as referred to above.

121 I note the defendant’s argument concerning the conduct of an investigation into the circumstances of the accident.  However, there is simply no evidence before me which would allow me to conclude that the defendant did not undertake such an investigation at the time of the accident.  This issue is not addressed at all in the affidavit material before the Court.  On the material before me, I am unable to be satisfied one way or the other, as to whether any report of an investigation into the circumstances of the accident was conducted.  I do not know if such a document or any related documentation exists, and if so, whether it is available to the defendant to assist in the conduct of any trial.  Thus, I am unable to conclude that any specific prejudice arises to the defendant in relation to this matter.

122 Nothing in the evidence put before the Court by the defendant sheds light on what documents have or might have been lost by reason of the deregistration of the employer company.  There is no evidence which would allow me to conclude that Mr Robert Justice had particular relevant knowledge in relation to this matter, which has or may have been lost to the defendant by reason of his death. 

123 There is no evidence before me as to what other documents relevant to the claim would be expected to exist, which cannot now be located.

124 Thus, I am unable to be satisfied that there is evidence of specific prejudice to the defendant by reason of the unavailability of relevant documents.

125 As to the absence of relevant equipment or machinery, namely the specific truck which was involved in the accident, I make the following observations:

(a)   first, there is no evidence that relevant enquiries have been made to locate the relevant truck.  For instance, there is no evidence that the purchaser of the business, Mr Maley, has been interrogated as to the whereabouts of the vehicle and that it cannot be located, or that he is unable to provide any information as to matters which lead to further relevant enquiries, such as the make and model of the relevant truck;  and

(b)   second, it must be that the physical absence of that piece of machinery, or any information in relation to it, if that indeed be the case, is as deleterious to the plaintiff as it is to the defendant.  On the trial of any claim for damages, it is for the plaintiff to demonstrate what act or omission was the cause of his injuries.  In the absence of being able to demonstrate to the requisite standard, what defect in the relevant vehicle caused the incident, one might conclude that the plaintiff may have difficulty proving his case. 

(c)   in those circumstances, the potential absence of the relevant truck is a factor which weighs against specific prejudice to the defendant, rather than in favour of it.

126 For the reasons set out above, I am not satisfied that beyond the general prejudice which is inherent in a delay in bringing proceedings of fifteen years, the defendant has suffered significant specific prejudice in this matter, by reason of that delay. 

127 Similarly, although the delay is lengthy, by reason of the contemporaneous reporting of the matter to the defendant and the continuous consultation with medical experts, together with the existence of all relevant medical materials as set out in this judgment above, the general deleterious effect of that delay on the defendant’s ability to have a fair trial, is somewhat ameliorated. 

128 Synthesising all of these considerations and considering where the interests of justice lie, I am satisfied that in this case, it is just and reasonable to order that the limitation period be extend.

Conclusion

129 Accordingly, pursuant to s23A of the LAA, I grant leave to the plaintiff to extend the limitation period.  

130 Pursuant to s134AB(16)(B) of the Act, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering in respect of the injury that he suffered to his lumbar spine on 23 July 2003.

131 I will hear the parties on the question of costs.

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