Pearce v Victorian WorkCover Authority
[2020] VCC 1923
•4 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-01320
| MICHAEL PEARCE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2020 (via Zoom) | |
DATE OF JUDGMENT: | 4 December 2020 | |
CASE MAY BE CITED AS: | Pearce v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1923 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – Skin cancer – Scarring
Legislation Cited: Accident Compensation Act 1985 s134AB
Cases Cited:Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd and Anor [2006] VSCA 172; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Transport Accident Commission v Florrimell [2013] VSCA 247; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; Petkovski v Galletti [1994] 1 VR 436
Judgment:Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D McWilliams with Mr L Howe | Adviceline Injury Lawyers |
| For the Defendant | Mr D Churilov | Lander & Rogers |
HIS HONOUR:
Introduction and background
1 The plaintiff, Michael Pearce, is now 67 years of age. In 1974 he commenced working on the docks in Melbourne. He has been employed by various entities associated with the Patrick group of companies. From September 1998, he was employed as a labourer and stevedore on the Melbourne wharves by Patrick Stevedores Holdings Pty Ltd (“the employer”). The plaintiff’s work on the docks involved duties including crane driving and pin work on shipping containers. He worked outdoors, was exposed to lots of sun, and often got sunburnt at work.[1] His employment commenced in the days before “slip, slop, slap”. He was not provided with sun protection.
[1]Plaintiff’s Court Book (“PCB”) page 1, paragraph 3
2 The plaintiff has a well-documented history of damage to his skin, including the development of basal cell carcinoma (BCC), squamous cell carcinoma (SCC) and solar keratoses. He has had many procedures for treatment of these skin conditions.
3 There is no dispute that the plaintiff has developed multiple skin cancers due to sun exposure.
The Application – legal principles
4 This is an application pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”). The plaintiff seeks leave to commence a proceeding for pain and suffering damages in respect to impairment of his skin as a consequence of the skin cancers. He claims to have suffered “serious injury” on the basis of either a “permanent serious impairment or loss of a body function” or “permanent serious disfigurement”.
5 The plaintiff was represented by Mr McWilliams and Mr Howe. The defendant was represented by Mr Churilov. The plaintiff relied upon the tendered documents in Exhibit P1, namely two affidavits of the plaintiff, various medical reports, statutory claim documents, and photographs. The defendant relied upon the documents contained in Exhibit D1, namely documents exchanged as part of the serious injury process and various medical reports or materials. The plaintiff was not required for cross-examination. There was no oral evidence.
6 Broadly speaking, the legal principles are well known and not in dispute in this application.
7 In order, the questions to be answered in this application are:
(i) what is the injury and what is the impairment said to be produced in consequence;
(ii) is the impairment permanent; and
(iii) are the consequences for the plaintiff such so as to satisfy the “very considerable” test?[2]
[2]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 at [33]
8 If the answer to the second or third of the questions is no, then the injury is not a serious injury as defined by paragraph (a) of ss. (37) of s134AB of the Act.
The Parties’ submissions
9 I note that the plaintiff and the defendant each provided a written submission and made further oral submissions. I take the written and oral submissions into account.
10 Pausing. Shortly after the matter commenced, the defendant conceded that the plaintiff has damage to his skin (scarring) that would meet the test of “serious injury” contained within s134AB(37)(b). What was not conceded was that such “serious injury” was suffered by reference to employment on or after 20 October 1999. No such concession was made in respect to the application based on paragraph (a) of ss. (37).
11 Pausing again. The concession made by the defendant that the plaintiff’s skin damage is a “serious injury” due to “permanent serious disfigurement” brings sharply into focus the real issue in this case. The plaintiff worked in an outdoor environment for many years. He has had prolonged sun exposure. As is clear from the medical material, he had damage to his skin before 20 October 1999. The real issue in the case is whether his employment after 20 October 1999 has caused him to suffer further “injury” and whether such injury has produced impairment consequences that are “very considerable”.
12 Returning to the parties’ submissions, the defendant submitted that:
(i) in the case of an evolving condition which has its origins prior to 20 October 1999 it is incumbent on the plaintiff to identify and establish a specific injury which arises out of, or in the course of, or due to nature of employment on or after 20 October 1999 and is productive of serious consequences;[3]
[3]Defendant’s submissions, page 1, paragraph 5; Grech v Orica Australia Pty Ltd and Anor [2006] VSCA 172 per Ashley JA at [34]
(ii) it is not enough to establish that the impairment and serious consequences occurred on or after 20 October 1999 regardless of when the compensable injury had occurred;
(iii) the defendant submits that the plaintiff fails at first instance in not being able to identify and establish the specific work injury suffered on or after 20 October 1999;
(iv) if, contrary to the defendant’s primary submission of no injury suffered after 20 October 1999, the Court should find that the plaintiff suffered injury referable to his employment on or after 20 October 1999, as distinct from employment before it, the defendant submits that in accordance with the principles from Petkovski v Galletti[4] the plaintiff is required to establish the presence of an additional impairment which in its own right produces “serious injury” consequences;
[4][1994] 1 VR 436
(v) the defendant submits there is no evidence before the Court which sufficiently identifies the nature and extent of any additional post-20 October 1999 impairment or consequences;
(vi) the defendant submits that the acceptance of statutory benefits claims does not constitute any admission for the purposes of the “serious injury” application.[5]
[5]Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Transport Accident Commission v Florrimell [2013] VSCA 247; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66
13 The plaintiff submits that:
(i) based on the numerous reports from Dr Tate, it is apparent that there was a continuous progression of developing skin cancers in the period on or after 20 October 1999 until the plaintiff ceased work in 2017;
(ii) the plaintiff’s work on the docks and his exposure to sun has contributed to the damage to his skin;
(iii) the definition of injury includes the “aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease” as per s3 of the Act;
(iv) there has been a contribution to the plaintiff’s injury from 20 October 1999. All doctors conclude that exposure to sun in the period on or after 20 October 1999 has contributed to the plaintiff’s condition. Exposure in that period has been productive of “serious injury” consequences, given the frequency with which the plaintiff attended for procedures to his skin from 2018 onwards;
(v) it is open to the Court to conclude that, had the plaintiff been provided with appropriate personal protective equipment from 20 October 1999, then his condition “most likely would have been very different”;
(vi) the development of the conditions to the plaintiff’s skin are consistent with an incremental aggravation of his condition throughout the course of his employment on or after 20 October 1999.
An Analysis of the evidence
The Plaintiff’s affidavit evidence
14 The plaintiff relied on two affidavits. Those affidavits mostly deal with the consequences from his skin cancers in a broad-brush manner. In so far as evidence of his sun exposure and treatment before and after 20 October 1999, it is convenient to set out all of the relevant evidence in the plaintiff’s affidavit. It is contained in his first affidavit, sworn 7 November 2019, when he said:
“3. I commenced employment with Patrick Stevedores on or about 31 July 1974. I was employed as a general labourer. I had various duties including crane driving and doing pin work on the shipping containers. I worked outdoors and was exposed to lots of sun. I often got sunburnt at work.
4. On a date I cannot recall, but after I had been employed for many years, the employer started putting sunscreen lotion into the cranes and the canteen at work. Often the sunscreen would run out and not be replaced or topped up for a long time.
5. On a date I cannot recall, I asked the employer for a wide brim hard hat to wear at work. I was told such a hat was too expensive and that if I was given one, every other worker would want one to. I eventually received such a hat in or about 2016.
6. My GP referred me to a dermatologist, Dr Tate whom I believe I first saw in about 1995. I continued to see Dr Tate until 2017. Dr Tate told me I had skin cancers and solar keratoses and he performed many different procedures to my skin.
7. On or about 9 October 2001 completed a WorkCover claim form for skin cancer. The claim was accepted.
8. Between 2001 and 2008 I saw Dr Tate from time to time. He told me I had solar keratoses that had to be frozen or cut out. I had these lesions on various body parts including my face, head and both of my arms. Dr Tate would often perform procedures on up to 50 or 60 spots on my skin at a time. Sometimes I had a bit of time off work when having these procedures, but largely I continued working my normal duties.
9. In about 2008 Dr Tate told me I needed to have a procedure performed on my right eyelid and that he could not perform such a procedure. I saw plastic and reconstructive surgeon Mr Donato. Mr Donato removed lumps from both of my eyelids. Since that time I have seen him many times and he has performed many surgical procedures to my skin. In the last couple of years Mr Donato has performed about 20 surgical procedures whereby he cuts out pieces of skin from various parts of my body including my face, head, arms and shoulders.”[6]
[6]PCB 1−2, paragraphs 3–9
15 The plaintiff’s affidavit material confirms that he had developed damage to his skin due to sun exposure before 20 October 1999. His affidavit material confirms that he has had considerable treatment for damage to his skin from 2001 to date.
The Medical evidence
16 Dr Bruce Tate has been the plaintiff’s treating dermatologist for many years. It is unclear on the material exactly when Dr Tate started to treat the plaintiff. As set out earlier, the plaintiff in his affidavit suggests such treatment started about 1995. In a report dated 13 March 2018,[7] Dr Tate said:
“Michael will continue to develop solar keratoses and probably skin cancers for the rest of his life. It’s impossible to say what proportion of sun damage is related to work versus non-work sun exposures. Suffice to say that his work on the docks both has been and is a significant source of sun exposure particularly as the sun bounces off concrete substantially increasing the exposure.”
[7]PCB 13
17 That opinion is supportive for a finding that the plaintiff’s employment has been a significant contributing factor to the development of the skin cancers. However, Dr Tate does not deal with the issue of “injury” suffered before and after 20 October 1999.
18 Dr Tate had seen the plaintiff on or about 6 September 1999. In a letter of that date addressed to Dr Silberman at The Clinic Deer Park, Dr Tate noted various lesions on the plaintiff’s skin which he had biopsied. At that stage he was awaiting biopsy results.[8] It is unclear exactly what happened thereafter by way of treatment, save that Dr Tate arranged histopathology which was performed on 12 October 1999 and reported on 13 October 1999.[9] The conclusion of the histopathology is that the plaintiff had a BCC on the right upper and lower temple.
[8]Defendant’s Court Book (“DCB”) page 17
[9]DCB 24−25
19 Thereafter, the plaintiff has clearly attended Dr Tate on many occasions, as set out in the Plaintiff’s Court Book from pages 125−156. There can be no argument that the plaintiff has required many procedures on his skin.
20 Dr Tate’s letters and reports could be said to help the plaintiff on the first question, namely whether or not the plaintiff has suffered “injury” on or after 20 October 1999, in that he describes the work on the docks as a significant source of sun exposure. The opinions of Dr Tate are, however, unhelpful in so far as identification of impairment and consequences suffered after 20 October 1999 and excluding impairment and consequences suffered before that date.
21 The plaintiff was seen for medico-legal purposes by Mr Robert Donato, plastic surgeon. In a report dated 14 November 2018, Mr Donato diagnosed non-melanoma skin cancer.[10] In respect to the causation issue, Mr Donato said:
“In regards to the cause and the likely aggravation of his condition from work, my understanding that Michael has spent a significant amount of time outdoors exposed to the UV effects of sunlight and to this end, as there is a strong correlation between this and the development of skin cancer, I do believe that his work has been a material cause to both the cause, the aggravation and the acceleration, exacerbation of his particular condition.”[11]
[10]PCB 14
[11]PCB 15
22 Mr Donato does not refer to the histopathology report of 13 October 1999. In his report he sets out fourteen procedures performed on the plaintiff’s skin between June 2008 and August 2018.[12] In respect to the first question, Mr Donato’s report is helpful to the plaintiff on the causation issue, as it can be inferred that the sun exposure after 20 October 1999 has been, in the words of Mr Donato, material to both the cause, and the aggravation, of the skin conditions. But, again, in Mr Donato’s report there is no attempt to identify injury, impairment and consequences after 20 October 1999 and exclude injury, impairment and consequences before that date.
[12]PCB 17
23 Dr David Fish saw the plaintiff for the purposes of a statutory benefit impairment claim. In a report of 27 March 2019, he provides an impairment assessment but does not otherwise assist the plaintiff on the issue of identification of injury after 20 October 1999.
24 Associate Professor Christopher McCormack provided a report of 20 August 2020 at the request of the plaintiff’s solicitors. He took a history as follows:
“[The plaintiff] started seeing a dermatologist in 1995, but prior to that he had been seeing a general practitioner, who had removed several skin lesions, which are thought to be skin cancer. He attended Dr Bruce Tate over many years and had hundreds and hundreds of lesions treated with cryotherapy as well as some skin cancers dealt with. He feels his first skin cancer was probably excised in the early 90s. Since 2000s, he has been attending Dr Donato and then has had multiple excisions.”[13]
[13]PCB 40
25 Associate Professor McCormack goes on to say that the plaintiff’s history and signs are consistent with excessive solar exposure. He says:
“In summary, Michael has had solar damage, which appears to be consistent with exposure in his workplace.”[14]
[14]PCB 41
26 Again, there is no attempt by Associate Professor McCormack to isolate injury, impairment and consequences before and after 20 October 1999.
27 Mr John Crock, plastic surgeon, was asked by the defendant to review the plaintiff’s affidavit, the clinical records of Dr Tate and Mr Donato and to provide a report. In his report of 22 October 2020, he describes multiple recurrent skin cancers understood to be caused by exposure to sunlight.[15] He was asked questions about the typical latency period of both BCC and SCC, and notes that the latent period varies from 7 weeks to 56 years (average 25−30 years).[16] Mr Crock was then asked a question as follows:
“5. Having regard to the attendances upon Dr Tate in 1995 and the histopathology report dated 12 October 1999, was the worker’s development of skin cancer in the years that followed a foregone conclusion?
The answer to this question is probably yes, although there is no such thing as “a foregone conclusion” in medicine. Notwithstanding, given his skin type, his sun exposure and his clinical history, his scenario is fairly typical and not unexpected.”[17]
[15]PCB 157
[16]PCB 158
[17]PCB 158
28 The defendant submits that Mr Crock’s opinion, based as it is on a consideration of the plaintiff’s attendances on Dr Tate from 1995 and the histopathology report of 12 October 1999, supports a conclusion that the subsequent treatment – that is, treatment after 12 October 1999 – was as a consequence of the skin conditions diagnosed at that time. Therefore, the numerous procedures that the plaintiff has undergone in more recent years were probably because the need for such treatment was a “foregone conclusion” given the damage to the plaintiff’s skin before 20 October 1999. The defendant submits that Mr Crock, with the benefit of the histopathology, does not support an argument that the plaintiff has suffered an injury after 20 October 1999.
29 The plaintiff relies heavily on another aspect of the opinion of Mr Crock, and in particular his answer to the following question:
“6. In your opinion, could the Plaintiff’s skin cancer(s) have been avoided by wearing sunscreen and appropriate PPE in the period 20 October 1999 to 29 November 2019 or was the damage already done by?
No, sun protection particularly with a wide brimmed hat is most likely to have helped significantly if worn diligently during this time.”[18]
[18]PCB 158
30 The plaintiff submits that Mr Crock’s opinion in fact supports a conclusion that employment after 20 October 1999 is causally related to the plaintiff suffering an injury, being skin cancer. The plaintiff submits that Mr Crock’s opinion that a wide brimmed hat would “most likely” have helped significantly if it had been worn after 20 October 1999 supports a finding of injury having been suffered after that date.
31 It is difficult to reconcile Mr Crock’s opinion that sun protection, particularly a wide brimmed hat, after 20 October 1999 would have helped significantly, in light of his acceptance (perhaps reluctantly) that the development of skin cancer in the years following October 1999 was probably a foregone conclusion. On the topic of the provision of a wide brimmed hat, the plaintiff added to his tendered documents a letter addressed “To whom it may concern” from Dr Tate of 17 February 2014. In that letter, Dr Tate says:
“Michael has been under my care for quite some time for his sun-damaged skin. It would be beneficial if he could wear a wide brimmed safety helmet when outdoors to protect his face.”
32 Again it is difficult to know what Dr Tate means in that letter. Is he suggesting that a progressive condition is such that a wide brimmed hat might stop or assist in the management of that condition, or is he suggesting that further injury may be suffered by the failure to wear a wide brimmed hat? It could be both.
33 The final medical opinion is that of Professor Richard Fox. In a report of 10 March 2020 he was also asked to review various material including reports from Dr Tate. Similarly to Mr Crock, Professor Fox was also asked questions about the latency period of both BCC and SCC. He said that the latency period may be in the order of “a few decades”.[19] He went on to answer other questions in which he opined that BCC and SCC “reflect lifelong cumulative damage”. He was asked to separate the plaintiff’s sun exposure from birth to when he first commenced employment on the wharf in July 1974, from the period 31 July 1974 to 19 October 1999, and then from 20 October 1999 to the present day. In answer to that question, he said:
“I do not believe it possible to dissect these 3 periods out. The damage was cumulative to the present day.”[20]
[19]DCB 20
[20]DCB 20
34 Professor Fox was then asked a similar question to that sked of Mr Crock regarding the attendances on Dr Tate in 1995 and the histopathology report dated 12 October 1999 and whether “the worker’s development of skin cancer in the years that followed” was “a foregone conclusion”. His answer to that question was “Yes.” He was then asked whether the plaintiff’s skin cancer could have been avoided by wearing sunscreen and PPE from 20 October 1999 onwards, or was the damage already done? He said:
“It is likely that considerable damage had already been done.”[21]
[21]DCB 21
35 The defendant relies on Professor Fox’s report in support of its submission that no injury was suffered after 20 October 1999. As mentioned earlier, the defendant submits that the plaintiff’s skin cancers are an evolving condition and the evidence does not identify and establish specific injury after 20 October 1999. The defendant submits that the evolution of a condition does not equate to injury.
36 There is some force in the defendant’s submission. However, I conclude that Professor Fox does not go so far as to say that no injury has been suffered after 20 October 1999. He does say it is not possible to dissect when the damage was done, but, in circumstances where he accepts that the skin damage has occurred through cumulative sun exposure, I interpret his report to support the conclusion that sun exposure after 20 October 1999 has caused injury by way of aggravation, acceleration, exacerbation or deterioration of the damage to the plaintiff’s skin and the development of skin cancers.
37 Therefore, having considered the totality of the medical evidence, I am prepared to conclude that the plaintiff has suffered injury after 20 October 1999, namely the aggravation, acceleration, exacerbation or deterioration of skin cancers.
38 But that is not the end of the matter. The plaintiff must go on to establish the impairment consequences referable to compensable injury and whether such impairment consequences are a “serious injury”, in this case either because of a “permanent serious impairment or loss of a body function” or “permanent serious disfigurement”.
39 It is easy to have sympathy for the plaintiff. But I must put aside any sympathy and apply the relevant legal principles. In my opinion, on any view of the totality of his medical condition he has a “serious injury” at least in respect to scarring and disfigurement, consistent with the concession made by the defendant. Further, based on the affidavits of the plaintiff and his description of the many procedures he has undergone and the pain and suffering consequences he has and will continue to have, I conclude that he meets the narrative test of “serious injury” for the purposes of paragraph (a) of ss. (37). He has “very considerable” pain and suffering consequences due to the “permanent serious impairment or loss of body function” namely to his skin.
40 Both the plaintiff and defendant made submissions based on the comments of Ashley JA in Grech v Orica Australia Pty Ltd [2006] VSCA 172. The present case can be distinguished from Grech in that the plaintiff, on the undisputed evidence, had already suffered damage to his skin for which he was undergoing treatment, and had an established skin cancer diagnosis – an established injury - before 20 October 1999. I return to the point that the real issue in this application is whether the plaintiff can show sufficient impairment and consequences referable to injury suffered on or after 20 October 1999 so as to meet the “serious injury” test and on that point Grech does not assist him.
41 In a case where the evidence is of injury and impairment suffered both before and after 20 October 1999 the plaintiff must establish that the injury suffered on or after 20 October 1999 has produced additional impairment which in it’s own right produces “serious injury” consequences[22].
[22]Petkovski v Galletti [1994] 1 VR 436
42 None of the medical practitioners identify the extent of impairment or consequences from such impairment from the compensable injury suffered after 20 October 1999. Neither does the plaintiff’s affidavit material make any attempt to do so either. In closing submissions, Mr McWilliams said:
“what was submitted on behalf of the defendant but essentially, ‘Plaintiff, you've got to unscramble the egg.’ My response to that is, we have sufficiently because there is evidence upon which the court can act to conclude that there is a period post 20 October 1999 which was a contribution to the plaintiff's condition and the result of which has rendered the plaintiff with serious consequences.”[23]
[23]T73, L14-21
43 Further, in final submission, Mr McWilliams submitted that:
“as far as the serious consequences are concerned, what it is the plaintiff deposes to, our submission is that certainly the extensive procedures to which he's been subjected from - bearing in mind too, they are predominantly - the procedures about which he complains are from around 2017 onwards and that involves mainly the problems, ongoing problems he had with his scalp, all of which are set out.”[24]
[24]T74, L9-16
44 I understand the plaintiff’s submission to be that:
(i) sun exposure after 20 October 1999 has caused the plaintiff to suffer injury by way of the aggravation, acceleration, exacerbation or deterioration of skin cancers (a submission which I accept as per my conclusions on injury);
(ii) compensable injury after 20 October 1999 has been a cause of the numerous procedures that the plaintiff has undergone, in particular to his scalp, and in particular in the last few years;
(iii) the numerous procedures that the plaintiff has undergone, in particular to his scalp in the last few years, is sufficient for a finding of impairment and consequences so as to meet the statutory test of “serious injury”.
45 There is a simplicity to the submission of the plaintiff that has some attraction. However, it cannot be accepted. The difficulty with the submission is that it ignores the medical evidence that the plaintiff’s skin cancers are at least to some extent caused by sun exposure prior to 20 October 1999 and are progressive and cumulative. It ignores the histopathology report of October 1999. It ignores the fact that no doctor has, in the words of plaintiff’s counsel, attempted to unscramble the egg to identify injury, impairment and consequences after 20 October 1999, and to exclude injury, impairment and consequences suffered before that date.
46 There is an evidentiary difficulty in this case that means the plaintiff’s application must fail.
47 The present application is, in some ways, similar to the evidentiary situation that Mrs Gledhill found herself in when her appeal was heard as part of the four appeals that were argued together in Barwon Spinners.[25] Mrs Gledhill suffered carpal tunnel which was documented as having been diagnosed as far as back as 1991. There was a consistency of diagnosis of carpal tunnel and medical opinion that it was something that evolved over a period of time, in that particular case perhaps over 11 or 12 years. As noted by the Court in that appeal, it was critical for the plaintiff to identify compensable injury that was referable to employment on or after 20 October 1999, but not to employment before it. Without that identification, the plaintiff could not establish how far and to what extent s134AB applied to her case and, accordingly, could not establish to what specific injury the leave provisions in sub-s(16)(b) might apply.[26]
[25]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622
[26]Ibid at [139]
48 In an afterword, the Court of Appeal in Barwon Spinners made further comment regarding the appeal by Mrs Gledhill. It is worth repeating it for the purposes of this application. The Court said:
“Mrs. Gledhill discovered early in the year 2000 that she was suffering from carpal tunnel syndrome, yet she could not bring herself within s.134AB because the evidence led upon her application for leave to commence a proceeding against the employer did not establish how far the injury relied upon was linked to employment on or after 20 October 1999 as distinct from employment before that date. Such an enquiry might be thought somewhat artificial: certainly it could be difficult for doctors, particularly those consulted late in the piece, to express a reliable opinion on such an issue. In the foregoing, we have opined that s.134AB(1) requires that the overall injury, when evolving over a period of time spanning the critical date, be distributed, as it were, between employment on or after 20 October 1999 and employment before that date; ...
We mention this, first because it seems to us that in that regard the statute might well be viewed as unsatisfactory, serving to raise what might prove to be an insuperable hurdle if medical opinion cannot resolve the factual issue.[27]
[27]Ibid at [144] and [145]
49 I consider the comments by the Court of Appeal in the afterword to Barwon Spinners to be apposite to the case before me.
50 In summary, whilst I am satisfied that the plaintiff has suffered injury after 20 October 1999, the state of the evidence does not enable an assessment as to the impairment that flows from such compensable injury and whether it has been productive of serious injury consequences. Regrettably, in my opinion, the application must be dismissed.
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