Rukic v The Valley Private Hospital
[2016] VCC 1483
•11 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Unrestricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-02770
| Smajo-Sam Rukic | Plaintiff |
| v | |
| The Valley Private Hospital | Defendant |
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JUDGE: | Her Honour Judge S.Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2016 – 1 September 2016; 5 September 2016 | |
DATE OF JUDGMENT: | 11 October 2016 | |
CASE MAY BE CITED AS: | Rukic v The Valley Private Hospital | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1483 | |
REASONS FOR JUDGMENT
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Subject: Extension of time - serious injury application – loss of earning capacity
Legislation Cited: Limitation of Actions Act 1958 (Vic); Accident Compensation Act 1985 (Vic)
Cases Cited: Acir Frosster Pty Ltd [2009] VSC 454; Ansett v Taylor [2006] VSCA 171
Judgment: Extension of time sought by the plaintiff is granted; leave to issue proceedings for the recovery of damages for loss of earning capacity is granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr P Czarnota | Shine Lawyers |
| For the Defendant | Mr D Masel SC with Ms R Kaye | IDP Lawyers |
HER HONOUR:
1 The plaintiff seeks an order pursuant to s.23A of the Limitation of Actions Act 1958[1] extending the time in which he may commence his proposed common law damages proceeding to a date to be fixed. The plaintiff also seeks leave to commence common law proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985[2] for loss of earning capacity only in respect of an injury to the lumbar spine caused by a fall while turning a patient during nightshift on 21-22 August 2001.
[1]Limitation of Actions Act 1958 (Vic)
[2]Accident Compensation Act 1985 (Vic)
Extension of time application
2 The defendant opposes the grant of an extension of time. Relying on the affidavit of Joseph Anthony Savedra sworn 18 August 2016,[3] the defendant says that the plaintiff was on weekly payments from 27 August 2001;[4] that he knew from the time he accepted the insurer’s impairment assessment dated 26 February 2003 that he had a significant, work-related injury; that his lawyers provided him with advice concerning the existence of a 6 year limitation period; that he only became dissatisfied with his decision to accept weekly payments when those payments ceased in 2012; and that the prejudice to the defendant extends to August 2016. The defendant says that there have been changes to the hospital by different owners and therefore no ability to take photos of the facility and equipment as it was in 1999-2001. The defendant says that it is likely that some of the defendant’s co-workers will not be able to be found. The defendant concedes that the relevant medical records and reports are available, but says that the effluxion of so much time has led to considerable erosion of memory, particularly that of the plaintiff, and to the unavailability of important supporting documentation, such as the time sheets for the 21-22 August 2001 which might provide confirmation that the plaintiff was at work on that night.
[3] DCB p.1
[4] Exhibit D, p.29
3 The plaintiff’s affidavit in support of the extension of time application[5] is to the following effect.
[5] PCB p.14
4 He signed a WorkCover claim in relation to his lower back pain on around 26 September 2001 and that claim was accepted. He engaged Hymans Solicitors in February 2002 and instructed them to pursue a s.98C[6] claim for permanent impairment in relation to his work injuries. Liability was accepted for the claim in relation to the right shoulder, thoracic spine and lower back. He was assessed in February 2003 as being entitled to compensation in the amount of $19,630.00. He never received advice from Hymans concerning his common law rights.
[6]Accident Compensation Act 1985 (Vic)
5 He decided to change solicitors and in early April 2003 he met with Mr Michael Tiernan of Blackburn Lawyers. He received a letter from Mr Tiernan dated 2 April 2003 informing him, inter alia, of the 6 year limitation period which would require common law proceedings to be issued by 19 October 2005; and that if he accepted his s.98C entitlement he would be permanently precluded from pursuing a common law claim for pain and suffering. He found the advice confusing. He met with Mr Tiernan again on 15 April 2003 and received a letter to the effect that he should withdraw his current s.98C claim as it did not include of all his work injuries; that the s.98C impairment assessment amount offered by the defendant’s insurer was appropriate and that if he accepted it he could still receive weekly payments.
6 He received a further letter from Maurice Blackburn dated 4 August 2004, but did not fully understand the distinction between pain and suffering damages and loss of earnings damages. He did not understand that there would still be a possibility of bringing a common law claim for loss of earnings even after accepting the s.98C assessment, particularly since he was continuing to receive weekly payments. He thought that by accepting the s.98C assessment, the possibility of making a common law claim was completely lost.
7 He continued to receive weekly payments, and suffered bouts of bad health in 2006-2007 (when he had a stroke and multiple surgeries) and 2010-2011 (when he had two angioplasties and an arthroscopy) which required significant periods of recovery in hospital and at home. He did not realise that there was anything further he could do in relation to a common law claim.
8 His weekly payments were terminated in early 2012, and he again consulted Maurice Blackburn. He received advice from Mr Raph Ajzenstat on 24 April 2012 to the effect that he could not make a common law claim for pain and suffering damages due to his earlier election to receive his s.98C lump sum compensation, but that he was still able to pursue a common law claim for loss of earning capacity even though the limitation period had expired on 21 August 2007.
9 In May 2012 he engaged Shine Lawyers and instructed them to make the serious injury application on his behalf.
10 In cross-examination, the plaintiff said that Mr Tiernan told him to do nothing while he remained on weekly payments. The plaintiff did not know how long weekly payments would last. He did not worry so much about the contents of Mr Tiernan’s letters, but relied on his verbal advice not to worry about the matter while he was still on weekly payments.
11 In re-examination, the plaintiff said that Mr Tiernan told him not to worry while he was still getting weekly payments, and that when the time came he would contact him and explain everything to him. He agreed that Mr Tiernan probably told him that if he was still receiving payments at the 6 year mark after his injury, there would be a limitations point that would need to be decided. He said that he relied on being contacted by Maurice Blackburn. After receiving Mr Tiernan’s letter in April 2003, the legal terms in which he did not understand, he did not receive any other formal legal advice about a 6-year limitation period. He trusted that Maurice Blackburn would notify him prior to the expiry of the limitation period.
12 I have considered the evidence, including the affidavit of the plaintiff’s solicitor, Mr Notarianni sworn 26 August 2016,[7] and submissions in relation to the extension of time application and consider that it is appropriate to grant the extension of time sought by the plaintiff, for a number of reasons.
[7] Exhibit E
13 Firstly, the defendant has been on notice at all times that the plaintiff’s claim was a live one, and has itself been obtaining updated medical evidence.
14 Secondly, the medical history, medical reports and clinical notes are extensive and complete. The plaintiff’s tax records between 1991 and 2012 are available. There is no evidence that the work systems in place at the hospital in 1997, about which Simone Turnbull has provided a statement, were not still in place in 2001. The defendant has statements of the plaintiff’s fellow workers and there is no evidence of efforts having been made to contact them or evidence that any of these witnesses is unavailable. It has not been established that the basic facilities of the hospital have changed since 2001, nor is there any evidence that there has been a search for, and identified loss of, work manuals and the like. The previous compensation file held by Robinson Lawyers in relation to the 1997 injury has been located. The WorkCover Authority keeps detailed files and could search their archives if necessary. There is a whole serious of medical certificates from which it is possible to chart when the plaintiff was at work. There is no evidence before me that the plaintiff’s time sheets have been searched for and are believed lost or destroyed.
15 Thirdly, I accept the plaintiff’s evidence that he had an imperfect understanding of his legal rights, and in particular that he believed, on the advice of Mr Tiernan, that while he was continuing to receive weekly payments he needed to do nothing but wait for lawyers to contact him. He had no further meetings with Mr Tiernan; he heard nothing from Maurice Blackburn when the limitation period was about to expire. He had been told to do nothing while he was receiving weekly payments. He did nothing. Once the payments stopped in 2012, he promptly sought legal advice, this time from Shine Lawyers. They reassembled the file and then filed the current applications.
16 Finally, whilst I acknowledge that there is some prejudice to the defendant from the effluxion of time, I consider in the circumstances of this case that the delay and reasons for delay have been adequately explained by the plaintiff and that, given the volume of material available in this matter, there can be a fair trial of the substantive issues.
Serious Injury Application
17 By way of background, the following appears not to be in dispute.
18 The plaintiff is now 59 years old and lives with his wife and mother. He was born and educated in Bosnia and moved to Croatia in his late teens. He worked there as a physiotherapist. He migrated to Australia in 1988 with his family. His first job here was working for Steelmark as a storeman. In the course of his employment there he sustained a lower back injury in 1990 in a lifting incident and has had significant treatment over the years since then.
19 Between 1991 and 1994 he lived in Germany and worked as a physiotherapist. He developed coronary problems and underwent angioplasty in 1991. He had further lower back pain and had an L4/5 laminectomy in mid-1992. His lower back continued to bother him, but he was able to maintain employment. He returned to Australia in 1994 and in that year made a claim for compensation for permanent disability in relation to his 1990 injury to his back, left leg, loss of mental powers and hearing loss. He saw some doctors in relation to that claim. He received $70,000 by way of compensation.
20 He studied English and did some further studies to qualify as a registered nurse.
21 In 1995 he commenced working as a nurse for the Valley Private Hospital, first on a casual basis, and then full time. He worked there until August 2001.
22 In 1997 there was an incident lifting a patient which caused him severe lower back pain. He was off work for about two months during which he had physiotherapy. He made a WorkCover claim in relation to this incident. He returned to work at first on a part time basis doing modified duties and later on a full time basis doing normal duties. In early 1998 he had a few weeks off work for back pain. The radiology at the time showed some disc degeneration and central canal narrowing at L4/5 and L5/S1. He returned to full time pre-injury duties. In cross-examination, he did not recall having physiotherapy on many occasions between 1997 and 1999.
23 He was continuing to take painkilling medication for his lower back problems but was able to continue working as a nurse until he suffered more severe lower back pain (inter alia) between 1999 and 2001.
24 In early 1999 he had coronary bypass surgery and was off work for 6 months. During this period he had physiotherapy treatment for some back pain.
25 Between 2000 and 2001 he suffered increasing back pain and needed to take greater amounts of analgesic medication to continue with his work duties.
26 In August 2000 he had MRI of the lumbar spine which revealed moderate sized broadly based posterior disc bulges at L4/5 and L5/S1. He continued to work, albeit with increasing lower back symptoms.
27 Whether the plaintiff worked the night shift on 21/22 August 2001, and what happened on that shift is in issue and is dealt with elsewhere in this judgment.
28 It does appear to be undisputed that when he went to the shops early in the morning on 22 August 2001 with his wife he found he could not get out of the car due to his lower back pain.
29 At around 5pm that evening, his wife drove him back to the Emergency Department. The triage nurse noted “injured back when got out of car c/o pain in calf / took Mersyndol x2 Panadeine Fx2- no relief.”[8] Dr Warburton who saw him at 17.35 noted in the hospital notes “getting out of car this am after night duty when got sudden pain in L back and L lateral side of leg…” [9] He had a CT scan and then MRI scan, the latter showing compression of the left L5 nerve root secondary to a disc extrusion at L4/5. He was admitted to hospital where he remained until 8 September 2001. During that time, he received three epidural injections to his lower back.
[8] DCB p.90Z
[9] DCB p.90Z
30 On 9 September 2001 he again presented to the Emergency Department at the Valley Private Hospital with severe back pain and left leg pain. He was admitted to hospital then transferred to Monash Medial Centre on 10 September 2001, where he underwent a left L4/5 laminectomy and discectomy on 13 September 2001.
31 He has not worked since August 2001 and does not consider that there is any work that he could do on a regular basis that would not aggravate his constant lower back pain, for which he takes between 2-6 Mersyndol Forte per day, as well as Panadeine Forte and Panadol when necessary.
Did the alleged workplace incident (on nightshift, 21 August 2001) occur?
32 As I understand it, the plaintiff’s case is put on the basis that the work-related injury suffered to the lumbar spine on 21/22 August 2001 was an exacerbation of a pre-existing and symptomatic lumbar spine condition which resulted in a total and permanent loss of earning capacity.
33 In addition to the affidavit sworn in respect of the extension of time application, the plaintiff swore two affidavits in support of his serious injury application, on 15 October 2013 and 24 August 2016. He was extensively cross-examined at the hearing. There are substantial differences between these two affidavits in terms of the way in which the plaintiff’s case is put. As I understand it, Mr Ingram opened and ran the case on behalf of the plaintiff on the basis that the plaintiff suffered an injury to the lower back in a lifting incident while on night shift on 21 August 2001 which constituted an aggravation of longstanding, pre-existing and symptomatic problems with the lower back. The aggravation occasioned further back surgery and has resulted in permanent and total incapacity for employment since that date.
34 I turn to the evidence.
35 The plaintiff’s instructions to his current solicitors were given on 1 May 2012 in the terms set out in Exhibit B. The instructions were to the effect that the plaintiff was injured in August 2001 in a specific incident at work when he was the nurse in charge and attending to a patient; the patient became confused and hit him, and he ended up falling under the bed and landed on his back.
36 In his first serious injury affidavit sworn 15 October 2013 the plaintiff stated the following at paragraphs 16-18:
16. During 2000 and 2001, the pain in my lower back became greatly more severe and I began to experience frequent pain in my upper back and neck and in my right shoulder. I sought treatment for these injuries during 2000 and 2001.
17. I was having more and more difficulty with my work duties during 2001 and I was finding the work more and more painful. I was requiring greater amounts of analgesic medication to continue with my work duties.
18. Ultimately in about August of 2001 I experienced an episode of intense pain in my lower back whilst getting out of a car when I was shopping with my wife. I was later admitted to the Valley Private hospital and remained there for some time before neurosurgeon, Mr Xenos, undertook a further surgery, this time a repeat laminectomy and a discectomy at L4/5 in about September 2001. I have not been able to return to work since August 2001.[10]
In his further affidavit sworn 24 August 2016, the plaintiff stated at paragraph 7.[11]
7. I refer to paragraphs 14 to 18 and to my injuries suffered as a consequence of my work between 20 October 1999 and August 2001. In particular the circumstances deposed in paragraph 18 when I experienced sharp pain in my lower back while getting out of a car when shopping with my wife. That incident occurred on 22 August 2001. I wish to clarify and expand on the circumstances leading up to this incident as follows:
d. On 21 August 2001 (i.e. the day before I was unable to alight from my car), I was working as a nurse at the Hospital for the Defendant on nightshift. I was called to assist in turning a male patient. Turning the patient involved placing my hands underneath the patient, and exerting force to life, push and manoeuvre the patient onto his or her side. On this occasion, the made patient was a acting in a confused and erratic manner. While I attempted to turn and control him, he resisted, pushed me and I fell to the floor. I basically did the “splits” under bed. I felt a sharp pain in my lower back. I went to the Emergency Department. I told the attending doctor that I had a sharp pain in my lower back. They told me they were short staffed and to come back tomorrow. I was given 2 tables of Panadeine Forte and 2 tablets of Mersyndon Forte. I cannot recall precisely, but I do not believe they took a record of my attendance there. I asked my supervisor if I could leave work, but was asked to stay on as there were no ready replacements for me. I worked through the pain for the rest of my nightshift.
e. When I finished my shift on the morning of the 22 August 2001 at about 7.00 am, I drove myself home but my lower back was very painful. A short time later that same day, my wife and I drove up to the local shops to do some shopping. When we arrived there, I could not alight from the car due to my lower back pain.
f. At about 5.10 pm on 22 August 2001, my wife drove me to the Emergency Department at the Valley Private Hospital. Despite taking Panadeine Forte and Mersyndol Forte the night before at work, these tablets did not relieve my back pain. I told the Emergency Department that I had taken those tablets with no relief.
[10] PCB p.17
[11] PCB p.26B-26C
37 In cross-examination, the plaintiff agreed that his 2013 affidavit did not mention lifting a patient in August 2001, but insisted that “on that night I told someone what happened at work.”[12] He said that on that night, after the incident, he was sent to the Emergency Department, received some tablets but completed his shift. He said he was unable to explain why there was no record of his attendance at the Emergency Department that night and no record of his having been given prescription medication on that night. He said that he “didn’t think anything would come of this.”[13]
[12] Transcript p.125 ln.20-21
[13] Transcript p.119 ln.25-26
38 He said that when the 2016 affidavit was composed his solicitor did not ‘word for word’ read him things out from medical reports and ask him if things were true but that the plaintiff told his solicitor what happened.
39 In cross-examination, the plaintiff said he did not recall the histories given by him to: Dr Byrne on 22 August 2001; his then treating general practitioner, Dr Gunawardana around the relevant date; a number of doctors he saw thereafter between then and September 2003; an insurance loss adjuster in June 2002 in which he did not mention a workplace incident with a patient on 21/22 August 2001[14] but referred to pain getting out of the car August 2001.
[14] The history of the 2001 incident as given by the plaintiff in a statement dated 24 June 2002 to a loss adjuster was in the following terms: “…On 21st August 2001, I experienced a surge of severe lowback and left leg pain as I was getting out of my car in my driveway but I was not involved in any incident or accident. I went shopping with my wife at the time, and she was driving. Upon arrival, I found that I could not get out of my car due to severe low back pain and left leg pain, although I had not been involved in any specific incident or accident. My wife assisted me to get out of my car and into our house.” (DCB p.97)
40 In re-examination, the plaintiff said:
On 21 August I was working night-shift. I was required to turn a patient over. First of all, when I come to the patient I will tell him verbally what I'm going to do… I could see on the patient's face that I was not understood and the patient was confused. I…indicated, to try and turn…him over.[15]
He got hold of the cot, on the side of the cot. He pushed me from that cot side that goes up from the bed. This happened so quickly. I was scared for him, I was scared for myself and I went down to the ground. Somehow my right leg just went from under me. I don't know how long I was there, but I tried to get up, which I did, and slowly I went to the nurse's station.[16]
The nurse who was working with me at the time, she said that she will provide some tablets. I then went to the emergency department where they gave me some tablets and she said to me, ‘Look, Sam, it's very hard to get staff. Can you come back to the ward and do as much as you can until the morning.’ But she also said, ‘Do as much as you can.’[17]
…I told my wife what happened at work. When I came home, I told her what had happened. I also took some tablets. She said then, "Would you mind going to the shops with me? I'll drive.[18]
… I had pain. I had pain when I was trying to get out of the car in my back and in my leg. My wife assisted me to get inside the house.[19]
…When I fell down that night, I felt a sharp pain. I had never, ever experienced pain like that before in my life. It just felt very, very severe pain, like extracting a tooth at that moment.[20]
[15] Transcript p.178-179
[16] Transcript p.179
[17] Transcript p.179
[18] Transcript p.179
[19] Transcript p.180
[20] Transcript p.180 ln.15-19
41 The plaintiff was taken to the note made by Dr Warburton on 22 August 2001 in the Valley Private Hospital notes “getting out of car this am after night duty when got sudden pain in L back and L lateral side of leg.”[21] The plaintiff said that this pain was not as great as the pain he experienced during night shift the previous night when the lifting incident occurred.
[21] DCB p.90Z
42 The plaintiff was taken to his Workers Claim Form, which he completed and signed on 26 September 2001.[22] The injury complained of was “back pain/L leg”; the date of injury was listed as 21 September 2001; the injury was listed as having been sustained “in the course of work”; the date he ceased work was listed as 22 September 2001; the injury was listed as having occurred “getting out of car”, when he experienced “sharp pain in L leg”.[23] The exact mode of injury was described at Question 19 as:
lifting confused patient’s;
moving bed to corridor.
[22] PCB p.27
[23] PCB p.27
43 The plaintiff said that his answer to Question 19 referred to the incident which occurred on nightshift on 21/22 August 2001. He said that the answers to Questions 15 and 17 were to the effect that he suffered pain getting out of the car when he got home after the night shift in which he suffered the back injury while lifting a confused patient.
44 The date upon which he reported the injury was listed as “22.09.01”, at about 6.00pm, to the Emergency Department. He stated at Question 28 that he was admitted to the Valley Private Hospital on “22.09.01” and, after being transferred to another hospital was discharged on “11.09.01”.
45 The defendant submitted that the answer to Question 19 does not correlate with the version of events alleged by the plaintiff in his latest affidavit at paragraph 7(d).[24] Rather, the use of the plural “patients” and the reference to moving beds refers to the plaintiff’s general duties over the duration of his employment with the defendant, which he has previously claimed caused him injury. Moreover, it was submitted, the answer to Question 19 was not otherwise reconcilable with the answers to Question 15 and 17.
[24] PCB p.26B
46 I consider, having regard to the undisputed chronology of events regarding the plaintiff’s treatment, and the evidence of the plaintiff, which I accept, that the references in the Workers Claim Form at Questions 12, 23 and 28 to “22.09.01” contain errors as to the month, and should be read as “22.08.01”. I also consider that the answer at Question 12 which currently reads “21.09.01” contains the same error as to month, and should be read as “21.08.01.”
47 The plaintiff completed and signed a “Near Miss/Injury/Accident Register Form” on 26 September 2001.[25] In cross-examination, he said that the date that the injury occurred was 21 August 2001 and not “21.09.01” as listed in the middle of the first page of the form. He said that the references to “1998, 1999, 2000, 2001” were references to his prior injuries. It was put to him that his answers reflected the true position, namely that as a result of lifting at work over a number of years, his lower back condition had worsened. He insisted that there was an incident on nightshift on 21 August 2001. He said that he had never said the injury occurred when he got out of the car, but, rather, that he had trouble getting out of the car. He said that whenever he was injured, he reported the matter.
[25] DCB p.92
48 The plaintiff said that the details given by him on the form referred to his being on duty on the night of 21 August 2001 and, during the course of his shift, at a time which he could not remember, suffering pain in the back and left leg while lifting an uncooperative and aggressive patient. He said that at the time of the incident he suffered sharp, sharp pain. He said that the pain he suffered the next day when getting out of his car was not as bad.
49 The plaintiff signed a Claim for Impairment Benefits form on 12 February 2002.[26] That form lists the date he first became aware of the condition as “1998 and 13/9/01.” At Question 6, concerning how the injury/condition occurred, there is an entry: “…Lower back & left leg – work lifting a patient.” In re-examination, the plaintiff said that “1998” was an error and should read “1997” (as that is when he suffered his original back injury), and that “13/9/01” contained an error as to the month and should read “13/08/01”. He said that the notation as to how the injury occurred referred to the lifting incident which occurred on night shift on 21 August 2001.
Defendant’s submissions
[26] PCB p.33
50 The defendant’s submissions may be summarised as follows.
51 The plaintiff is an unreliable witness, with a very poor memory, and was at times untruthful. His affidavit and oral evidence on disputed matters should not be accepted unless firmly supported by unequivocal contemporaneous documents or accounts given when matters were fresher in his memory. His poor memory is difficult to reconcile with his insistence that the events on 21 August in fact occurred, and as he described. Assuming he is not consciously fabricating an account, it is more likely that by rumination and confusion he has developed a false memory, transposing his memory of the events of 1997 or other like events in which he was involved with moving a patient and suffering back pain, onto the night of 21/22 August 2001.
52 There is no hospital record of the plaintiff’s attendance at the casualty department of the hospital where he worked, nor the prescription to him of analgesia. The history that is recorded in the medical records of the Valley Private Hospital on 22 August 2001 and by treating doctors[27] and examining doctors thereafter,[28] is that of injury when getting out of a car and with no mention of a precipitating event at work. Even the notes and the reports of the plaintiff’s general practitioner, Dr Gunawardana[29] around the relevant date do not refer to a discrete incident on 21 August 2001, although there is a notation on 21 September 2001:
“28/8 to 25/9 W/C Hospital – works as a nurse
Due to lifting
[27] DCB pp.90AC, 90Z, 87C; PCB pp.67, 71
[28] DCB pp.34, 41-42, 46A, 47-48, 96-97; PCB pp.89, 207
[29] DCB p.90K
53 The absence in the hospital notes, notes of treating doctors, reports of examiners, and in the of mention of a discrete incident at work on the night of 21 August 2001 suggests that no such history was given by the plaintiff and the supposed event did not occur.
54 The “Near Miss/Injury/Accident Register Form” and the Worker’s Claim Form dated 26 September 2001 strongly suggest a “course of employment” work injury commencing with the 1997 incident and continuing over the course of employment, and not a discrete injury on 21/22 August 2001.
55 An Ansett v Taylor[30] admission does not arise from the accepted claim but that, even if it does, it should carry little weight give the contemporaneous and later histories and instructions given by the plaintiff.
[30]Ansett v Taylor [2006] VSCA 171
56 It is questionable, having regard to the plaintiff’s wage records, which appear to reveal that he was receiving sick pay during the relevant period, whether the plaintiff was even at work on the night of the alleged incident.[31]
Findings and reasons
[31] DCB pp.91A, 91E
57 I have considered the totality of the evidence before me.
58 I accept that the plaintiff’s memory overall was poor and that he did not recall, for example, what he told doctors and others between 2001 and through to 2003 about the circumstances in which he sustained his back injury. I accept that this vagueness contrasted sharply with his insistence in his second affidavit and at the hearing that his 2001 back injury occurred as a result of the lifting incident at work on the night of 21/22 August 2001.
59 I consider that the inconsistencies between the instructions taken by his solicitor in May 2012 and the content of the first affidavit are unfortunate but reflect poorly on the solicitor rather than on the plaintiff’s credit.
60 However, leaving aside the errors in dates in some of the forms submitted by him or on his behalf, I consider that the balance of the information provided in those forms is consistent with the history he gave to some doctors in 2009, with his instructions to his solicitors in May 2012, his oral evidence and his most recent affidavit evidence.
61 In his report dated 8 July 2009, Mr Brian Davie noted a history of “an incident as occurring on the night of 22 August 2001 when he was assisting another nurse with a confused patient who apparently grabbed hold of him and pulled him down, causing him to experience the sudden onset of a sharp pain in the lower back”[32] and 2015.[33]
[32] PCB p.224; See also the report of Associate Professor George Mendelson at DCB p.62, who noted a history from the plaintiff that “while assisting another nurse to roll a patient, in August 2001, he fell and developed low back pain. According to Mr Rukic he fell in such a manner that he ended up “under the bed.”
[33] Dr David Middleton noted in his report dated 3 August 2015 a history as follows: ‘Mr Rukic states that at the time of the injury he was dealing with a confused patient, who had threatened to strike him with the cot-side. Tending this patient, Mr Rukic lost footing and slipped under bed, “doing the splits” and immediately experienced acute pain in his back and groin. Mr Rukic then drove home and on arrival, was unable to get out of the car due to the level of pain, with significant numbness and pain in his left leg:” PCB p.149
62 Dr Pasan Manawadu noted in his report dated 14 September 2015 a history from the plaintiff that “on 22 August 2001 he had been assaulted by a patient, while working as a nurse in the ward. He had sustained a back injury as a result.”[34]
[34] PCB p.118
63 I am unable, in the absence of evidence explaining the plaintiff’s wage records, to draw any conclusions as to whether they in fact contradict the plaintiff’s account of being at work on 21 August 2001. There is no evidence of any sick leave certificate being granted for a period beyond 17 August 2001. There is no evidence to the effect that the plaintiff worked beyond 21 August 2001. There is however, emphatic evidence from the plaintiff that he was at work on the night in question and has not worked since then. Having regard to the totality of the evidence, I accept the sworn evidence of the plaintiff in regard to the circumstances in which he sustained his lower back injury: that is, in a lifting incident with a patient while working night shift at the Valley Private Hospital on the night of 21/22 August 2001.
What is the plaintiff’s “without injury” earning capacity?
64 The defendant conceded that, as at the date of the hearing, the plaintiff is permanently incapacitated for all employment.
65 However, the defendant says that although the plaintiff was working as a nurse prior to 21 August 2001, the medical evidence[35] is that he did not in fact have the physical capacity to do so, and, therefore, he would have been out of the workforce within the 3 years after 21 August 2001 due to his heart and hearing problems notwithstanding any back injury sustained in the course of employment between 20 October 1999 and August 2001. For this reason, the defendant says that the sum which most fairly reflects his “without injury earning capacity” is nil.
[35] See the opinions of Mr Davie, Mr Elsner and Mr Simm at DCB pp.102,104 and 80
66 The plaintiff’s evidence was that, notwithstanding earlier injuries to the spine, including the lumbar spine, which required surgery and treatment, coronary bypass surgery in 1999 (which resulted in 6 months off work), he was able to work full time performing the full range of his nursing duties, albeit with some lumbar back pain, until 21 August 2001, and that, thereafter, what kept him from returning to work at all has been the pain and restrictions associated with his lumbar spine injury sustained on that night.
67 In the Second Reading Speech relevant to s.134AB(38)(f), the Minister said, inter alia:
…The loss of earning capacity is to be measured by firstly comparing the worker’s income from personal exertion or capacity to earn income on a before-injury and after-injury basis. The focus time period for determining the capacity to earn income on a before-injury basis is limited to three years before the injury and three years after the injury in order to remove open-ended inquiries which may have varying degrees of speculative judgment. The examination is one which is to fairly reflect the worker’s earning capacity had the injury not occurred.
Consistent with that understanding, in the three-year period prior to the injury, the court may have regard to the vagaries of the workers’ pre-injury employment history and the impact of the worker’s social, health and other factors on the capacity to work in that period.
In respect of the three years after the injury, the earnings and/or capacity for earnings but for the injury will enable the court to have regard to the probably increases or decreases in earnings that may have occurred or the achievement of other employment opportunities within that time had the injury not occurred…[36]
[36] Accident Compensation (Common Law and Benefits) Bill, Hon Monica Gould (Minister assisting the Minister for WorkCover) Legislative Council 23 May 2000.
68 As Forrest J remarked in Acir,[37] in most cases, the inquiry will be relatively simple: the wages at time of injury will be established and, generally, the only other question will be determining whether there has been an increase of decrease in wages and the prospects of promotion. However, at times, it may be necessary to consider (for example, if the worker was not working full-time at the time of injury) the gross income that the worker was capable of earning from personal exertion (a past hypothetical) and the gross income the worker would have been capable of earning from personal exertion (a future hypothetical). I do not consider that this case is one of those times.
[37]Acir Frosster Pty Ltd [2009] VSC 454 at 165-166
69 In this case I consider that the inquiry is a relatively simple one. The plaintiff’s evidence is that the primary cause of his ongoing permanent and total incapacity for employment is his lower back injury. The weight of medical opinion from 2003 (from treating and examining doctors)[38] supports this contention.
[38] Mr Simm, 12 February 2015 (DCB p.71); Mr Xenos, 16 August 2016 (PCB p.81); Dr Gunawardana, 7 September 2015 (PCB p.103); Dr Kinloch, 30 July 2003 (PCB p.108) ; Mr Schofield, 24 June 2015 (PCB p.132); Dr Clayton Thomas, 12 August 2003 (PCB p.88); Dr David Middleton, 29 June 2016 (PCB p.179); Mr Keith Hayes, 14 April 2003 (PCB p.93) is to similar effect.
70 I note that notwithstanding any other medical conditions suffered prior to 21 August 2001, and despite the presence of lumbar spine symptoms, the plaintiff was able to discharge his full time duties as a nurse working for the defendant between 1995 and 21 August 2001.
71 Plaintiff’s counsel[39] relied on the Employers claim form which set out his pre-injury earnings at $1,067.00 per week, 60% of which is $640.00. I accept that this figure most fairly represents his without-injury earnings. The defendant has conceded that, as at the date of hearing, the plaintiff is totally and permanently incapacitated for employment. Accordingly, I am satisfied that the plaintiff has established a loss of earning capacity of 40% or more as required by s.34AB(38)(e) of the Act. It follows that the plaintiff has established that in terms of loss of earning capacity the consequences of his permanent impairment of the spine is more than considerable when compared with other cases in the range of permanent impairments.
[39] PCB p.31; Transcript p.282
Conclusion
72 It follows from the above that, firstly, I grant the extension of time sought by the plaintiff and, secondly, that leave is granted to the plaintiff to issue proceedings for the recovery of damages for loss of earning capacity in respect of the injury to the lumbar spine while working for the defendant. I reserve the question of costs.
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