Short and Linfox Transport Pty Ltd (Compensation)

Short and Linfox Transport Pty Ltd (Compensation) [2019] AATA 613 (2 April 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )   No: 2016/4343
GENERAL DIVISION  )         2016/6017
  2017/0344
  2017/5781
Re: John Short
Applicant

And: Linfox Australia Pty Ltd
Respondent
DIRECTION
TRIBUNAL:  Deputy President J W Constance
DATE OF CORRIGENDUM:            18 April 2019
PLACE:            Sydney

IT IS DIRECTED, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), that the text of the decision in this application be altered as follows:
1)the name of the Respondent on page 1 be changed from “Linfox Transport Pty Ltd” to “Linfox Australia Pty Ltd”;
2)the reference to “Linfox Transport Pty Ltd” in paragraph 1 of the decision in application 2017/0344 be changed to “Linfox Australia Pty Ltd”;
3)the reference to “Linfox Transport Pty Ltd” in paragraph 2 of the decision in application 2017/0344 be changed to “Linfox Australia Pty Ltd”;
4)the reference to “Linfox Transport Pty Ltd” in paragraph 1 of the decision in application 2016/4343 be changed to “Linfox Australia Pty Ltd”;
5)the reference to “Linfox Transport Pty Ltd” in paragraph 2 of the decision in application 2016/4343 be changed to “Linfox Australia Pty Ltd”;
6)the reference to “Linfox Transport Pty Ltd” in paragraph 1 of the decision in application 2016/6017 be changed to “Linfox Australia Pty Ltd”;
7)the reference to “Linfox Transport Pty Ltd” in paragraph 2 of the decision in application 2016/6017 be changed to “Linfox Australia Pty Ltd”;
8)the reference to “Linfox Transport Pty Ltd” in paragraph 1 of the decision in application 2017/5781 be changed to “Linfox Australia Pty Ltd”;
9)the reference to “Linfox Transport Pty Ltd” in paragraph 2 of the decision in application 2017/5781 be changed to “Linfox Australia Pty Ltd”;
10)the reference to “Linfox Transport Pty Ltd” in the decision as to costs in applications 2016/4343, 2017/0344, 2016/6017 and 2017/5781 be changed to “Linfox Australia Pty Ltd”;
11)the reference to “Linfox Transport Pty Ltd” in paragraph 102 of the reasons for decision be changed to “Linfox Australia Pty Ltd”;
12)the reference to “Linfox Transport Pty Ltd” in paragraph 103 of the reasons for decision be changed to “Linfox Australia Pty Ltd”;
13)the reference to “Linfox Transport Pty Ltd” in paragraph 104 of the reasons for decision be changed to “Linfox Australia Pty Ltd”;
14)the reference to “Linfox Transport Pty Ltd” in paragraph 105 of the reasons for decision be changed to “Linfox Australia Pty Ltd”;
15)the reference to “Linfox Transport Pty Ltd” in paragraph 106 of the reasons for decision be changed to “Linfox Australia Pty Ltd”;
16)the reference to “Linfox Transport Pty Ltd” in paragraph 107 of the reasons for decision be changed to “Linfox Australia Pty Ltd”;
17)the reference to “Linfox Transport Pty Ltd” in paragraph 108 of the reasons for decision be changed to “Linfox Australia Pty Ltd”;
18)the reference to “Linfox Transport Pty Ltd” in paragraph 109 of the reasons for decision be changed to “Linfox Australia Pty Ltd”; and
19)the reference to “Linfox Transport Pty Ltd” in paragraph 110 of the reasons for decision be changed to “Linfox Australia Pty Ltd”.

........................[sgd]...........................................
J W Constance
Deputy President
Division:GENERAL DIVISION
File Number(s): 2016/4343
2016/6017
2017/0344
2017/5781

Re:John Short
APPLICANT

AndLinfox Transport Pty Ltd
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:2 April 2019
Place:Sydney

Application 2017/0344
1.The decision under review, being the decision made by Linfox Transport Pty Ltd on 12 January 2017, is set aside.
2.In substitution it is decided that Linfox Transport Pty Ltd is liable to pay compensation to Mr Short in accordance with these reasons in respect of an injury, being a C6/7 right posterior lateral disc protrusion, which occurred on 15 March 2013.

Application 2016/4343
1.The decision under review, being the decision made by Linfox Transport Pty Ltd on 12 January 2017, is set aside.
2.In substitution it is decided that Linfox Transport Pty Ltd is liable to pay compensation to Mr Short in accordance with these reasons in respect of an injury, being an aggravation of a C6/7 right posterior lateral disc protrusion, which aggravation occurred on 5 July 2013.

Application 2016/6017
1.The decision under review, being the decision made by Linfox Transport Pty Ltd on 23 June 2016, is set aside.
2.In substitution it is decided that Linfox Transport Pty Ltd is liable to pay compensation to Mr Short in accordance with these reasons in respect of an injury being an increased C6/7 right posterior lateral disc protrusion, which occurred on 15 March 2016.

Application 2017/5781
1.The decision under review, being the decision made by Linfox Transport Pty Ltd on 18 September 2017, is set aside.
2.The matter is remitted to Linfox Transport Pty Ltd for reconsideration in accordance with these reasons, with the direction that Mr Short has suffered an injury, namely a C6/7 right posterior lateral disc protrusion, which has resulted in a permanent impairment.

Applications 2016/4343, 2017/0344, 2016/6017 and 2017/5781
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, Linfox Transport Pty Ltd shall pay the costs incurred by Mr Short in these proceedings.
.............................[sgd]...........................................
Deputy President J W Constance
CATCHWORDS
COMPENSATION – workers’ compensation – C6/7 right posterior lateral disc protrusion – where immediate physiological change in condition of C6/7 disc – whether ‘injury’ for purposes of the Act – whether injury ‘arising out of, or in the course of’, Applicant’s employment – decision set aside and substituted
COMPENSATION – workers’ compensation – aggravation of C6/7 right posterior lateral disc protrusion - whether ‘injury’ for purposes of the Act – whether ‘aggravation’ of injury – whether aggravation ‘arising out of, or in the course of’, Applicant’s employment – decision set aside and substituted
COMPENSATION – workers’ compensation – further C6/7 right posterior lateral disc protrusion – where immediate physiological change in condition of C6/7 disc – whether ‘injury’ for purposes of the Act – whether injury ‘arising out of, or in the course of’, Applicant’s employment – decision set aside and substituted
COMPENSATION – workers’ compensation – C6/7 right posterior lateral disc protrusion – whether ‘injury’ resulted in ‘permanent impairment’ for purposes of the Act – decision set aside and remitted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Abrahams v Comcare (2006) 93 ALD 147
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Telstra Corporation Ltd v Bowden (2012) 206 FCR 207
SECONDARY MATERIALS
Comcare, Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1
REASONS FOR DECISION
Deputy President J W Constance
A: INTRODUCTION

Mr Short commenced employment as a driver/deliveryman for Linfox Australia Pty Ltd (Linfox) in 2007. He delivered full kegs of beer to customers and collected empty kegs for return to the depot at which he was based. It was hard manual work, often without mechanical assistance.
Mr Short had not experienced any significant problems with his back or neck until an incident in March 2013, when he suffered pain in his neck and right shoulder while manoeuvring a full keg on the back of the delivery truck. He received some medical treatment but continued working. Following this incident he continued to experience pain in his neck and shoulder. He suffered similar symptoms in July 2013 when lifting a keg. On that occasion he was treated with physiotherapy and medication for pain relief.
In March 2016, Mr Short was again moving a full keg on the back of the delivery truck. On this occasion he felt a “pop” in his neck followed by severe pain. He consulted a neurosurgeon, Professor Owler, who diagnosed him as suffering severe right C7 radiculopathy as a result of a very large right C6/7 disc protrusion.
In August 2016, Professor Owler performed a C6/7 anterior cervical discectomy and fusion. Although this procedure provided Mr Short with some relief from his symptoms, he has not been able to return to his full-time duties. He last worked for Linfox in May 2016.
B: APPLICATIONS FOR DETERMINATION IN THESE PROCEEDINGS
Application 2017/0344 (claimed injury on 15 March 2013)
On 9 November 2016, Mr Short made a claim for compensation for an injury to his neck, shoulders and right arm which he described as “injury/disease and/or aggravation of the injury/disease due to the nature and conditions of my employment with Linfox since commencing my employment in 2006 to date”.[1] He stated that he first noticed symptoms of his claimed conditions on 15 March 2013.[2]
[1] Exhibit J36.
[2] Exhibit J36.
The medical certificate issued by Dr Park on 29 November 2016 and lodged in support of the claim recorded the diagnosis as “disc prolapse of cervical spine at C5/6 and C6/7 which was treated with anterior discectomy and fusion”.[3]
[3] Exhibit J38.
Mr Short seeks review of the decision dated 12 January 2017, by which Linfox affirmed its determination of 21 December 2016 to deny liability to compensate Mr Short for the claimed conditions.
Application 2016/4343 (claimed injury in week ending 5 July 2013)
On 6 June 2016, Mr Short made a claim for compensation for an injury suffered in the week ending 5 July 2013 and described as:
Multiple disc protrusions & prolapse, indent of the cervical cord
Thickened endplate margins & lipping
Narrowing of the intervertebral foramen.[4]
[4] Exhibit J26.
Mr Short seeks review of the decision dated 29 July 2016, by which Linfox affirmed its determination of 30 June 2016 to deny liability to compensate Mr Short for the claimed spinal conditions.
Application 2016/6017 (claimed injury 15 March 2016)
This application relates to an injury described as “a right trapezal strain” suffered on 15 March 2016. On 26 May 2017, Linfox accepted liability to compensate Mr Short in respect of this injury, but only for the period from 15 March 2016 to 28 April 2016. Mr Short seeks review of the decision to affirm that determination, dated 23 June 2016.
Application 2017/5781 (permanent impairment claim)
On 29 June 2017, Mr Short made a claim for compensation for an injury which resulted in permanent impairment.[5] The injury in respect of which the claim was made was the accepted muscle strain injury sustained on 15 March 2016[6] (the subject of application 2016/6017).
[5] Exhibit J39.
[6] Exhibit J40.
Mr Short seeks review of the decision dated 18 September 2017, by which Linfox affirmed its determination of 17 August 2017 that Mr Short had no entitlement to lump sum permanent impairment compensation.[7]
[7] Exhibit J42.
C: THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
Subsection 14(1) provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Subsection 5A(1) provides:
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Disease is defined in section 5B:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Subsection 4(1) defines ailment as:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Sections 24 and 27 provide for compensation to be payable in respect of an injury to an employee which results in a permanent impairment.
Mr Short’s first three applications for review seek compensation in accordance with s 14 of the Act; the fourth application is a claim for permanent impairment made in accordance with ss 24 and 27.
D: MR SHORT’S EMPLOYMENT BY LINFOX
Unless stated otherwise, findings of fact in these reasons are made on the basis of the evidence of Mr Short. I am satisfied that he was an honest witness who gave his evidence to the best of his recollection.
Mr Short commenced full-time employment by Linfox on 24 May 2007. At the time he was 25 years old.
From the outset, Mr Short was employed as a truck driver/deliveryman delivering kegs of beer and collecting empty kegs. The kegs varied in weight, from approximately 15 kilograms when empty to 65 kilograms when full. He did not have a regular starting time, but would often start at 5:30am and work into the evening.
Mr Short’s working day always started at Linfox’s depot in Sydney. His truck would be loaded ready for him to drive out when he arrived at work. It was a flat-top vehicle with gates on the sides and back to keep the kegs in place.[8] A normal load comprised 126 full kegs on the bottom layer with 60-70 on the top layer. Flat boards were placed on top of the first layer to support the second. A load could include two sizes of keg; 30 litre kegs, which weighed 40 kilograms, and 50 litre kegs, which weighed 65 kilograms. On each delivery run Mr Short was accompanied by a fellow-worker to assist in unloading the full kegs and loading the empties. A normal day would involve two or three deliveries and collections.
[8] Exhibit A7.
Each load would require deliveries to several locations. On most occasions the full kegs were unloaded by hand. Usually this involved Mr Short reaching up over his head with his right hand, taking hold of one of the handles on the top of a keg on the top row, and pulling it towards him. As the keg came off the truck, he would keep hold of it with his right hand and guide it with his left arm so that it landed on its side on a cork mat on the ground. At times a keg would fall awkwardly, pulling on his right arm. A similar process was involved in unloading the bottom row.
When unloading kegs from the middle of the tray, Mr Short would stand on a bar on the side of the truck, drag a keg towards him and then drop it to the ground. On occasions it was necessary for him to stand on top of the second row and pull kegs up from the bottom row before positioning them on the edge of the truck ready to be unloaded to the ground.
The manner in which the kegs were then transferred to a customer’s storage varied. At some venues Mr Short would use a rope and hooks to lower full kegs into a cellar from ground-level and pull up empty kegs. This was done without assistance. On these occasions he would bear the full weight of the keg until it hit the cellar floor.
Some venues had a slide from ground-level down into the cellar. This method of transferring kegs required Mr Short to hold a full keg on the slide until the cellar-man below took its weight. At times the keg would move off the slide pulling Mr Short forward and causing a heavy jerk to Mr Short’s arms.
The layout of some venues meant the kegs were unloaded by rolling them from the side of the truck into the premises. At other venues a trolley was used. Empty kegs were removed the same way. At times Mr Short and his assistant were required to lift kegs up from the tray of the truck to a doorway above their heads. It was only at large entertainment and sporting venues that kegs were removed using a forklift.
When loading empties, the usual practice was to load the bottom row, place a board on top of that row and then repeat with two more rows. Mr Short would pick up a keg, carry it to the truck in a horizontal position and, with his right hand on top of the keg, load it with a twisting motion so that it stood vertically. He then pushed the keg into place with his right hand. If the keg was to be positioned in the middle row of either level he had to lean forward to do this. Sometimes a keg would become jammed and more difficult to push. To load the top row of empties, Mr Short had to lift a keg above his head and turn it at the same time. He would lift the keg to just above waist height with his right hand and then use both hands to lift it over his head.
Mr Short’s work was physically demanding and at times he would feel muscle stiffness after a busy day at work. However, up until 2013 he had not experienced significant pain in his neck, shoulders or back, nor had he taken time off work or sought medical treatment for a neck or shoulder injury. His general practitioner’s notes of 4 December 2012[9]record the following:
Yesterday ‘pulled something in right/upper back/neck’ – I was just brushing my teeth.
There are no further such entries.
[9] Exhibit R1.
Incident on 15 March 2013
On 15 March 2013, Mr Short was manoeuvring a keg on the back of the truck when he felt pain and stiffness in his neck and right shoulder. On 3 April 2013, he consulted Dr Abi-Hanna (a general practitioner nominated by Linfox) and on the same day lodged an application for workers’ compensation. He was diagnosed as having suffered a “right trapezius/parascapular strain”, which was treated with physiotherapy and strapping. He performed light duties for a few days before returning to normal duties. Since this incident, Mr Short has continued to suffer pain which has fluctuated, but generally worsened, over time.
Incident on 5 July 2013
In his statement made 25 May 2017, Mr Short described this incident as follows:
On 5 July 2013 I was lifting a keg when I experienced pain in my neck and loss of strength in my right arm. I reported the injury to my transport manager, Mr Benetti Vili, and he organised a consultation with Dr Saad for the injury. I did not have any time off work at this time, although I did perform light duties. Dr Saad referred me for an MRI, which I underwent on 30 July 2013. The MRI showed that I had a disc bulges [sic] along my spine. Until this point we had been told that I had merely sustained a muscular strain.[10]
[10] Exhibit A4 at [9].
Mr Short continued with his usual work following this incident. He performed normal duties but endeavoured to be as cautious as possible to avoid further complications. He found this difficult with the physically demanding nature of his work. He suffered constant pain in his neck and arm with frequent episodes of severe pain. He also experienced stiffness and limited range of movement in his neck. He was treated by a physiotherapist and prescribed medication for pain relief. The only medication that provided him with significant relief was the drug, Lyrica, which was prescribed in late 2016.
MRI of cervical spine 30 July 2013

The report of an MRI scan of Mr Short’s cervical spine, dated 30 July 2013, stated:
At the C6-7 level, a right posterior-lateral disc protrusion has occurred. Endplate margins are also thickened with early lipping. Right intervertebral foramen is narrowed.[11]
[11] Exhibit J14.
Incident on 24 February 2015
In his statement made 25 May 2017, Mr Short described this incident as follows:
On 24 February 2015 2015 [sic] I was lifting a large board that is used to stack the kegs. I held on to either side of the board and lifted it in an upwards momentum. When I lifted it upwards the board caught the wind which [sic] and the force of the wind on the board put pressure on the board and my arms. This caused me to experience immediate pain in my neck. It was not uncommon to have symptoms like this throughout a working day.
I reported the injury to my employer and I was taken to see Dr Mason. My medical expenses were covered by my employer and I believe that I saw Dr Mason on approximately three occasions. Whilst my symptoms have fluctuated significantly over the years, they have generally been the same since March 2013.[12]
[12] Exhibit A4 at [14]-[15].
Incident on 15 March 2016
Mr Short described this incident as follows:
On 15 March 2016 I sustained injury whilst pulling a full keg across from one side of the truck [sic] the other side. I felt a pop in my neck and experienced immediate and severe pain in my neck and down my right arm. I reported this to my manager and I was taken to see Dr Homsi on that same day. I lodged another workers compensation claim form (LIN750352) and I did not have any time off work. At this stage I was still not aware of the severity of my injuries and it was thought the pain was caused by a recurring muscular strain.[13]
[13] Exhibit A4 at [16].
MRI of cervical spine 1 April 2016
The report of this scan included the following observation:
At C6/7, there is moderate-marked right-sided disc osteophyte disease, which appears to be mainly disc protrusion to about 8mm.[14]
[14] Exhibit J19 at 1.
Subsequent treatment
By mid-2016, Mr Short was experiencing severe pain in his neck and right arm, which radiated down to his fingers. His condition was deteriorating and he was having difficulty sleeping. He was supporting his right arm, which had significantly weakened, in front of his chest.
In early August 2016, Mr Short consulted Professor Owler, a neurosurgeon. On 22 August 2016, Professor Owler performed a C6/7 anterior cervical discectomy and fusion on Mr Short. The following day, Mr Short noticed a significant improvement in relation to the tingling and numbness in his right arm and hand.
Cessation of work for Linfox
Mr Short last worked for Linfox in May 2016.
E. LINFOX’S ARGUMENT
Linfox contends that each of the reviewable decisions should be affirmed.
It is argued that, based on the evidence of Dr Mellick, I should find that prior to and since 15 March 2013, Mr Short has suffered from a degenerative spinal condition. All the symptoms from which he suffers are a result of the degenerative condition to which Mr Short’s employment made no contribution.
Alternatively, it is argued that, based on the evidence of Professor McGill, I should find that Mr Short’s employment by Linfox caused aggravations of his pre-existing degenerative condition in 2013 and 2016. Further, I should be satisfied that the 2013 aggravation ceased to have effect within three months, and the 2016 aggravation ceased to have effect within six months, after the surgery performed by Professor Owler in August 2016.
F. EVIDENCE OF HEALTH PROFESSIONALS
Dr Sherif, Radiologist
Dr Sherif reported on the MRI scans taken of Mr Short’s cervical spine on 1 April 2016 and 30 July 2013. The reports were prepared, at the request of Professor Steadman, on 5 September 2017[15] and 24 October 2017[16]. Dr Sherif reviewed the report and original films in each case.
[15] Exhibit A2.
[16] Exhibit A3.
On 5 September 2017, Dr Sherif reported that the disc protrusion in 2013 measured 8x5x13mm and the protrusion in 2016 measured 23x15x6mm. He expressed the opinion that:
This compressive disc is more likely to have occurred from a sudden jolt/twisting injury accompanied by acute pain and neurology usually peaking 6 hours post event. Given there was a smaller disc protrusion 3 years earlier, albeit much smaller, the previous discopathy is likely to have functionally healed, although healing never regains the original strength of the annular fibres, thus this would have been the “weak” point for re-injury.
In his report of 24 October 2017, Dr Sherif recorded one of the questions to which he was to respond:
Are any identified differences in imaging consistent with the progression of degenerative disease of the cervical spine or more likely indicative of the occurrence of a specific event and/or trauma to the survival spine? Please provide reasons for your answer.
Dr Sherif responded:
There is minor endplate osteophyte lipping at C6/C7 indicative of early evidence of degeneration, which is far from being compressive at this stage. Disc protrusion is usually multifactorial, however in a young person, degenerative changes are less contributory and traumatic events are the usual main contributing factor.
Professor Owler, Neurosurgeon
Mr Short was referred to Professor Owler by his general practitioner, Dr Kumar. Professor Owler provided reports dated 9 August 2016[17] and 22 August 2016[18]. He also gave evidence at the hearing.
[17] Exhibit A10.
[18] Exhibit A11.
On 9 August 2016, Professor Owler reported, in part, as follows:
In 2013 he did suffer an injury where he developed pain over the right side of his neck and shoulder. He was treated with conservative management. It was treated as a compensable work related injury. He went through a process with a group called Body Active and was being reviewed by a physiotherapist on site at work. This also involved strapping of his shoulder at that time. The diagnosis that was made at that time was a trapezius strain.
There is an MRI scan of the cervical spine from the 30^th July [2013] … which does demonstrate a focal C5/6 disc and a more significant C6/7 right posterolateral disc protrusion. There is narrowing of the neural exit foramen which would affect the C7 nerve and this was likely the cause of his problem at that stage.
Since that time his problem has never completely resolved. He has continued to work on full duties. Unfortunately in March 2016 was doing a delivery and pulled some kegs across the truck. He felt a pop in his neck with some intense pain in his neck and shooting pain down his arms with paraesthesia. He was then placed on light duties. This coincided with some time off work and subsequently he was stood down. He was again diagnosed as having a trapezius strain but clearly what he has is a severe right C7 radiculopathy.
…
His pain has improved although he still had quite significant pain up until about three weeks ago when he started on Lyrica. He is currently taking 150mgs hd.
On examination there is loss of muscle bulk of the right shoulder and particularly the triceps muscle…
I reviewed his current MRI scan which shows the previous small C5/6 disc but now a very large right C6/7 protrusion. It is markedly increased compared to the scan of 2013.
It is very clear that this gentleman does not have a muscle strain and in fact I doubt he had a muscle strain in 2013. His diagnosis is that of a severe right C7 radiculopathy due to a large right C6/7 disc protrusion. This is clearly a work related injury. An acute disc recurrence with a large extrusion was almost certainly caused by his activities at work in March 2016.
…
I have discussed with him the options for treatment including conservative management, cortisone injections and surgery. I think his best chance is with a C6/7 anterior cervical discectomy and fusion…
Professor Owler performed the C6/7 anterior cervical discectomy and fusion on 22 August 2016.[19]
[19] Exhibit A11.
At the hearing, Professor Owler gave evidence that:
·it is common for an injury at the C7 level to cause the symptoms suffered by Mr Short following the incident in March 2013;
·the MRI of 30 July 2013 does not show “long standing degenerative change”;
·changes to the bony plates can develop in a matter of months;
·thickening of the endplate margins is a reaction of the body to endeavour to repair the damage and can occur over a period of months;
·the injury in 2016 was more severe than the previous injury and the fact that an MRI scan showed acute changes is clearly consistent with the history given by Mr Short;
·the feeling of a “pop” in the neck is usually experienced when a disc protrusion suddenly occurs as a result of the tearing of the annulus, the fibrous layer of the disc;
·the “pop” indicates the timing of the disc protrusion;
·it is very unlikely that the cause of Mr Short’s presentation in August 2016 and the requirement for surgery was a result of degenerative change;
·the symptoms suffered by Mr Short followed the “normal everyday pattern of symptoms” to be expected;
·it is very unusual for a person aged 34 years to suffer symptoms of degenerative change;
·the condition of Mr Short’s spine at the time of the discectomy was “a very clear case” of injury rather than degenerative change.[20]
[20] Transcript, 15 May 2018.
Dr Pillemer, Orthopaedic Surgeon
Dr Pillemer assessed Mr Short on 30 August 2017 at the request of the Applicant’s solicitors. He provided a report dated 30 August 2017[21] and gave evidence at the hearing.
[21] Exhibit A9.
In the history taken, Dr Pillemer noted that Mr Short “felt that he had ongoing problems with his neck, trapezius and shoulder region after his original injury with symptoms never really settling completely”.[22]
[22] Exhibit A9 at 2.
In the opinion of Dr Pillemer:
… there was a disc protrusion on the MRI done in July 2013 and that this lesion would have been significantly aggravated in March 2016 when further disc protrusion would have occurred causing the discomfort radiating down into his right arm.
…
… Mr Short’s ongoing symptoms are due to his original injury in March 2013 with aggravations over the years with particularly marked aggravation in March 2016.[23]
[23] Exhibit A9 at p.4.
When he gave evidence, Dr Pillemer said the fact that Mr Short experienced pain free periods prior to 2016 did not change his opinion. He did not agree with the proposition put by counsel for Linfox that repeated heavy lifting does not alter the course of degenerative change in the neck.
Dr Pillemer did not agree with the opinion of Professor McGill that any aggravation of Mr Short’s degenerative condition would cease within three months. He was of the view that once there is a disc lesion the disc never completely heals, but remains a weak link that will give way under sufficient force. In his opinion, degenerative change is normal in persons in their 60s and 70s but few develop disc protrusions, which are usually a result of some incident.
Further, in the opinion of Dr Pillemer, Mr Short’s need for surgery was related to the injury in 2013. The incident in March 2016 when Mr Short experienced a “popping” sensation and immediate pain indicated that the disc protrusion significantly increased at that time, coming into contact with a nerve and causing pain to radiate down his arm.
Dr Pillemer assessed Mr Short’s degree of whole person impairment at 28%[24] in accordance with Table 9.15 of the Comcare Guide.[25] This Table includes “loss of motion of a motion segment due to a developmental fusion or a successful or unsuccessful attempt at surgical arthrodesis”.
[24] Exhibit A9 at 4.
[25] Comcare, Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1.
Dr Mellick, Neurologist
Dr Mellick assessed Mr Short on 28 April 2016 at the request of the solicitors for Linfox. Dr Mellick provided reports dated 28 April 2016, 9 May 2016 and 20 June 2016.[26] He also gave evidence at the hearing.
[26] Exhibits R7, R8 and R9 respectively.
On 28 April 2016, Dr Mellick reported, in part, as follows:
… there is no indication of a cervical spinal injury or a neural injury at the level of the neck. The radiologist’s comment and the radiological data do not establish the presence of a radiculopathy at the C6/7 level. This is emphasised by the absence of evidence of a radiculopathy on clinical grounds at the time of my examination, despite the radiological changes that were noted approximately three years ago.
The osteoarthritic changes, degenerative changes, are constitutional, long-standing and are not due to the injury.
…
The pathology present is osteoarthritis. That, in this context, is a constitutional matter and the pattern of the osteoarthritis is not indicative of the presence of a spinal injury. The reasoning is based on the pattern of the history, findings on examination and a correlation with the radiological data.
It is probable that the muscle strain has occurred on a background of cervical spondylosis. The normal pattern of resolution of such symptoms is over a period of four to six weeks.
…
The current symptoms, therefore, are not explicable as a result of ongoing traumatic pathology. I agree with the lack of a relationship between Mr Short’s work and the presence of the degenerative disease (including the foraminal narrowing). There is no nerve root compromise.[27]
[27] Exhibit R7 at 4-5.
In his report of 9 May 2016, Dr Mellick stated that he could not find an organically-based problem preventing Mr Short from returning to his pre-injury duties.[28] On 20 June 2016, he expressed the opinion that there were multiple possible causes of the degenerative change, none of which were work-related.[29]
[28] Exhibit R8 at 3.
[29] Exhibit R9 at 2.
When Dr Mellick gave evidence he agreed that the symptoms in the right arm described by Mr Short were indicative of radiculopathy. These included tingling, reduced reflex and reduced strength. He also agreed that the right bicep in a right-handed person is normally larger than the left; this was not the case when he examined Mr Short. When asked whether he agreed that it was likely that, at the time of the incident on 15 March 2016, there was a change in the physiology of the disc and that it came into contact with the nerve, Dr Mellick said this was “a possible interpretation”.[30]
[30] Transcript, 17 May 2018.
Clinical Associate Professor McGill, Consultant Rheumatologist
Professor McGill assessed Mr Short on 1 March 2017 at the request of the solicitors for Linfox. He provided a report dated 1 March 2017[31] and gave evidence at the hearing.
[31] Exhibit R6.
Professor McGill reported, in part, as follows:
The earliest imaging of his cervical spine in July 2013 showed chronic degenerative changes including thickening of the vertebral endplate margins with early lipping at C6/7. Degenerative change in the cervical spine had clearly been present prior to the development of symptoms. Nevertheless, he was performing physical activity at work at the time his symptoms first occurred and although there was no substantial injury, I think it is appropriate to conclude that his work duties in 2013 and again in 2016 did cause an aggravation of pre-existing degenerative change in the cervical spine.
With respect to the probable duration of the aggravation as a result of the work he performed in July 2013, although he today reported that his neck symptoms never fully settled (and thus there may have been a mild permanent aggravation), I think it is probable that most of the aggravation at that time was temporary and had ceased within three months.
I think the aggravation related to his work duties in March 2016 precipitated the requirement for cervical spine surgery and that the surgery was performed for a work-related aggravation of pre-existing degenerative disc disease.
…
In light of the problems that occurred at the C6/7 level and the fact that he has degeneration also at C5/6, I think it would be unwise for him to perform heavy lifting (>20kg). The requirement for this restriction has become apparent because of a work-related aggravation of his cervical spine disease but the restriction going forward is related to the underlying change, not the work injury.
On the presumption that his previous work moving kegs of beer would have at times involved the equivalent of lifting a weight in excess of 20kg, I do not think that he is fit to return to his previous work duties. He is fit to continue his current work duties on a full time basis. He is fit for work involving driving, lifting up to 20kg and general activities. Work requiring prolonged awkward posturing of the neck would not be appropriate.
His inability to continue his normal work duties subsequent to the injury in March 2016 was related to the work injury he sustained at that time. The effect of that injury with respect to his work capacity would have continued until he had recovered from his cervical spine surgery. Six months following surgery is an appropriate time point, that is until 23 February 2016.[32]
[32] Exhibit R6 at 5-6.
In oral evidence Professor McGill said the state of Mr Short’s cervical spine in July 2013 was “worse than average” but “not atypical”.[33] In his view it was not possible that its condition in July 2013 had developed since March 2013. In particular, it would be unusual for an injury to cause change at two levels as shown on the MRI carried out on 30 July 2013.
[33] Transcript, 16 May 2018.
Professor McGill gave evidence that a degenerative disc will initially bulge and then protrude. Symptoms develop when the protrusion irritates a nerve. He considered that in Mr Short’s case the events of 2013 were no more than a temporary aggravation which would have ceased to have effect within three months. He agreed that the incident in March 2016, which was followed immediately by severe pain, indicated that there had been a slight physiological change in the spine whereby the protruding disc came into contact with a nerve. He further agreed that the surgery performed by Professor Owler was appropriate.
Associate Professor Steadman, Consultant Orthopaedic Surgeon
Professor Steadman assessed Mr Short in December 2016 and December 2017 at the request of the solicitors for Linfox. He provided reports dated 20 December 2016[34] and 4 January 2018[35] and gave evidence at the hearing.
[34] Exhibit R10.
[35] Exhibit R11.
In December 2016, Professor Steadman reported, in part, as follows:
John Short suffered from a degenerative disc protrusion of his neck. His MRI shows he has multilevel disease. Mechanism of injury would suggest that this is all degeneration. He went on to have surgical intervention which has been successful. In my opinion he would be fit to return to truck driving as in fact he is already doing, although he does not think he could lift heavy kegs in the order of the previous level of 1000 per week.[36]
In January 2018, Professor Steadman further reported:
Ultimately, the picture I conclude is one of a constitutional insidious progression of degenerative disease of the cervical spine. Degenerative disease covers all aspects of findings including, in this case, the protrusion which ultimately led to the nerve compression rather than a singular event.
The real issue is that there are incremental increases in his symptoms over a long period of time as result of multiple events and on a background of degeneration each and every event by itself is not necessarily the major contributing factor to the complaint, but the sum of many leads to the final event that is the “straw that breaks the Camel’s [sic] back”.[37]
[36] Exhibit R10 at 5.
[37] Exhibit R11 at 11.
When he gave evidence, Professor Steadman said that it appeared that Mr Short suffered a C6 compression and that later C7 became involved; it could be that there was nerve involvement at both levels. He agreed that in March 2016 it was likely that Mr Short suffered a micro-trauma which “started the process of his becoming symptomatic”.[38] At that time there was a variation in Mr Short’s clinical picture which resulted in his new pathology.
[38] Transcript, 18 May 2018.

Professor Steadman assessed Mr Short’s degree of whole person impairment to be 28% by reason of his cervical fusion.[39]
General Practitioners’ records[40]
[39] Exhibit R11 at 9.
[40] Exhibit R1 (errors in original).
Records of consultations kept by Mr Short’s general practitioners include the following relevant entries:
04/12/2012Yesterday “pulled something in right/upper back/neck” - “I was just brushing my teeth”;
11/06/2015     Pinched nerve in right neck radiating to scapula;
14/06/2015     Muscular pain since Thu R neck R scapula
Old injury 3 yrs ago w recurrent symptoms
…
C spines full rom Tender R neck R scapula R shoulder normal
Power tone reflexes sensation upper limbs normal
17/06/2015     Still has neck pain
29/03/2016gvne celebrex and tramadol 20mg but not helping with cramping pain
01/06/2016requesitng anaagement of worsend lower cervical C5/6, C6/7, disc protrusion, now leaning on right C7 cervicla root no in as uch pain as prev, intemirttne numbness righ rlaterl a2 gfinger,s
08/06/2016nil pain over last 1 week did not use lyrica at all
lifted 10kg eski and wet clothers basket, at home comfrtably
…
has some numbness, in fingers
15/06/2016     doing resiSTANCE TRIANING AT HOMR
lig\ftignwet clothes basket
23/06/2016at gym 5 days lifted, 60 kg to waist, and 50kg above shoulder,s only muscle aches, sleeping well
nil parasthesiae
tkainglyrica 75mg bd, and sleeping well
feel sfit to return to work run out of sick leave.
Records of Galen & Gray, Medical Practitioners
Following the incident on 15 March 2013, Mr Short consulted Dr Abi-Hanna at the request of Linfox.
Dr Abi-Hanna’s notes of 3 April 2013[41] record:
[41] Exhibit R2 (errors in original).
c/o right post shoulder pain
was pushing a keg from back to front of truck with right hand only
felt pain to back of right shoulder / neck since
on 27/3/13
continued normal PID since
doinf stretches
nil analgesia taken
no previous shoulder / neck injury
well otherwise
nka
Examination:
mild right trapezius / lev scap tenderness + spasm
full rom to shoulder /neck
nil bony tenderness
nil shoulder impingement.
A note of 14 April 2013[42] by Dr Saad records:
reviewed on Friday
Significant improvement with physio - continue with strengthening exercise
Can trial pid
Will issue final clearance on next review.
Sydney West Sports Medicine Records[43]
[42] Exhibit R2.
[43] Exhibit R3 (errors in original).
In a consultation record dated 12 March 2015, Dr Mason took the following history from Mr Short:
33 year old male Linfox truck driver (delivering kegs 60 kg) presents for r/v right shoulder pain 2 weeks duration sudden onset while lifting board which was caught by the wind which then progressively worsened over the rest of the day on a background of right perscapular pain 2 years ago and 2 ‘bulging discs’.
On 17 March 2015, Mr Abi-Arrage noted, relevantly:
Pain levels significantly decreased though still gets some pain down the lateral right arm when pulling down.
On 19 March 2015, Dr Mason reports:
Currently: pain levels improved. Intermittent pain, no pain through right UT, residual pain medial to inferior angle right scaspula.
A note of Mr Abi-Arrage dated 24 March 2015 records:
Pt reports feeling much better after rx last week with no major discomfit or pain. Reports a residual niggle under infero-medial border of right scap though very low in intensity. No neck pain or shoulder pain.
Dr Mason reports on 26 March 2015 that Mr Short was:
Currently working normal duties and hours with no issues … FROM right shoulder and cervical spine…
In an email to Sydney West Sports Medicine dated 23 March 2016, Mr Webb of Body Active Physio reported, relevantly:
I saw John today for his right neck / shoulder pain. He reported sudden onset of right neck / shoulder pain on 15-3-16 when pulling a keg at work. This followed a period of low grade discomfort in the same region for a couple of weeks prior. John has also had a number of similar work related episodes of right neck / shoulder pain over the past few years.
G. REASONING
Having accepted Mr Short as a truthful witness, the determination of the issues in each application requires consideration of the varying opinions expressed by the medical experts.
Taking into account all of the evidence, I prefer the opinions of Professor Owler and Dr Pillemer to those of the practitioners relied upon by Linfox.
Professor Owler had the advantage of having operated on Mr Short’s spine within five months of the sudden increase in his symptoms in March 2016. Both Professor Owler and Dr Pillemer gave clear and considered reasons for the opinions they expressed. Their opinions were consistent with the evidence given by Mr Short, particularly his having been able to meet the extraordinary physical demands of the job for almost six years without difficulty. Their views are supported by the reports of Dr Sherif.
I have also taken into account the fact that Mr Short was 32 years old in 2013 and it is unusual for a person of that age to suffer a degenerative spinal condition of the nature described by Dr Mellick.
Professor McGill did not satisfactorily explain why he formed the opinion that Mr Short had recovered from the 2013 and 2016 injuries yet continued to suffer symptoms which had not been present prior to March 2013, despite his having undertaken the same heavy manual work since 2007. He agreed that symptoms develop when a disc protrusion irritates a nerve.
Dr Mellick did not explain why Mr Short would suffer the symptoms of which he gave evidence if, as in Dr Mellick’s view, there was no nerve root compromise. Dr Mellick was alone in suggesting that Mr Short should have been able to return to his pre-injury duties within six weeks of the operation by Professor Owler.
On the basis of the evidence of Professor Owler, Dr Pillemer and Mr Short, I am satisfied on the balance of probabilities that:
·on 15 March 2013, Mr Short suffered a C6/7 right posterior lateral disc protrusion while moving a keg as part of his duties as an employee of Linfox;
·on 5 July 2013, Mr Short suffered an aggravation of the injury suffered by him on 15 March 2013;
·on 15 March 2016, Mr Short suffered a further protrusion of the C6/7 disc while moving a keg as part of his duties as an employee of Linfox;
·Mr Short has not fully recovered from the effects of these conditions.
Has Mr Short suffered “an injury” being “a disease” or “an injury (other than a disease)” as defined in section 5A of the Act?
Section 5A is set out in paragraph 6 of these reasons.
In Military Rehabilitation and Compensation Commission v May,[44] the High Court considered the definition of “injury” prior to the insertion of s 5A. The relevant wording of s 5A is the same as that considered by the Court.
[44] (2016) 257 CLR 468.
The majority said of the meaning of “injury” under the Act, in part, as follows:
The set of conditions answering the definition of “injury” in the Act relevantly comprises two sub-sets, “disease” and “injury (other than a disease)”, the latter sometimes referred to, not necessarily helpfully, as injury simpliciter. They comprise separate but related bases of liability. Each has a different meaning in the statutory scheme.
…
“Injury” in para (b) is used in its “primary” sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if “something … can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word” (emphasis added). That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an “injury” in the primary sense. However, as the Full Court correctly held, “suddenness” is not necessary for there to be an “injury” in the primary sense. A physiological change might be “sudden and ascertainable”. A physiological change might be “dramatic”. The employee’s condition might be a “disturbance of the normal physiological state”. That an “injury” in the primary sense can arise, and can be described, in a variety of ways does not mean that “suddenness” is irrelevant. As the Full Court said, “suddenness” is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central (footnotes omitted).[45]
[45] Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at 479-481 ([42], [45]-[47]).
The High Court provided guidance to the Tribunal as to the manner in which it should proceed to determine whether an employee has suffered an injury within the meaning of the Act. The precise evidence must be considered “on a fact by fact basis”.[46] The Tribunal must then consider whether the employee has suffered a “disease”. If the answer is “no”, it is necessary to consider whether the employee has suffered “an injury (other than a disease)”.
[46] Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at 481 ([49]).
The contention on behalf of Linfox is that Mr Short suffers an ailment, being a degenerative spinal condition to which his employment has not contributed. On this basis it is clear that such a condition is not a “disease” within the meaning of s 5B. In any event, I have accepted the evidence of Professor Owler and Dr Pillemer that Mr Short does not suffer from a degenerative condition.
I am satisfied that at the time of each of the incidents, in March 2013 and March 2016, there occurred an immediate physiological change in the condition of the C6/7 disc. In addition to the evidence of Professor Owler, Dr Pillemer and Dr Sherif, I have also taken into account the evidence of Professor McGill that there was a slight physiological change in Mr Short’s cervical spine when the protruding disc came into contact with a nerve. Dr Mellick agreed that this was a possible interpretation. I note also the opinion of Professor Steadman that it was likely Mr Short suffered a micro-trauma which precipitated his symptomatology.
As to the question of causation in relation to the disc protrusions, I have accepted the evidence of Professor Owler and Dr Pillemer that on both occasions they were caused by Mr Short’s activity in moving kegs on the back of the delivery truck as part of his employment. On this basis I am satisfied that the injuries arose “out of” Mr Short’s employment;[47] a causal relationship is thus established.
[47] See Telstra Corporation Ltd v Bowden (2012) 206 FCR 207.
Although it is unnecessary for the purposes of these applications in view of my finding in the previous paragraph, I am satisfied also that a temporal relationship is established.[48] On the basis of the evidence of Professor Owler, Dr Pillemer and Mr Short, I am satisfied that on both occasions Mr Short suffered an injury, other than a disease, being a physical injury arising “in the course of” his employment.
[48] See Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at 133 in which Dixon J said:
[T]he question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something he was reasonably required, expected or authorized to do in order to carry out his duties …
On the same evidence I am satisfied that on 5 July 2013, Mr Short suffered an aggravation of the injury to his cervical spine suffered on 15 March 2013.
Application 2017/0344 (injury 15 March 2013)
Although the original claim was made for an injury caused by the nature and conditions of Mr Short’s employment, the claim must be considered broadly to include a claim for an injury suffered in the circumstances I have described.[49]
[49] See Abrahams v Comcare (2006) 93 ALD 147.
For the reasons set out above, I am satisfied that on 15 March 2013, Mr Short suffered an injury within the meaning of the Act and, since that time and at the date of the decision under review in this application, continues to suffer the effects of that injury. Linfox is liable to pay him compensation in respect of that injury in accordance with s 14.
Application 2016/4343 (injury week ending 5 July 2013)
On the basis of the evidence of Mr Short, I am satisfied that on 5 July 2013 he experienced pain in his neck and loss of strength in his arm whilst moving a keg at work. He was restricted to light duties for some time and underwent an MRI. He was treated with medication for pain relief and physiotherapy.
On the basis of the evidence of Professor Owler and Dr Pillemer, I am satisfied that on this occasion he suffered an aggravation of the injury to his cervical spine which occurred on 15 March 2013.
Application 2016/6017 (injury 15 March 2016)
For the reasons set out above, I am satisfied that on 15 March 2016, Mr Short suffered an injury within the meaning of the Act and, since that time and at the date of the decision under review in this application, continues to suffer the effects of that injury. Linfox is liable to pay him compensation in respect of that injury in accordance with s 14.
Application 2017/5781 (permanent impairment claim)
On the basis of the evidence of Dr Pillemer and Associate Professor Steadman, I am satisfied that Mr Short has suffered a 28% whole person impairment resulting from the injuries to his cervical spine on 15 March 2013 and 15 March 2016.
I note that the claim for compensation referred to the injury as a muscle strain suffered on 15 March 2016. On the basis of the evidence to which I have referred, I am satisfied that this injury was properly diagnosed as a C6/7 right posterior lateral disc protrusion.
H. CONCLUSION
Application 2017/0344 (injury 15 March 2013)
The decision under review, being the decision made by Linfox Transport Pty Ltd on 12 January 2017, will be set aside.
In substitution it will be decided that Linfox Transport Pty Ltd is liable to pay compensation to Mr Short in accordance with these reasons in respect of an injury, being a C6/7 right posterior lateral disc protrusion, which occurred on 15 March 2013.
Application 2016/4343 (injury week ending 5 July 2013)
The decision under review, being the decision made by Linfox Transport Pty Ltd on 12 January 2017, will be set aside.
In substitution it will be decided that Linfox Transport Pty Ltd is liable to pay compensation to Mr Short in accordance with these reasons in respect of an injury, being an aggravation of a C6/7 right posterior lateral disc protrusion, which aggravation occurred on 5 July 2013.
Application 2016/6017 (injury 15 March 2016)
The decision under review, being the decision made by Linfox Transport Pty Ltd on 23 June 2016, will be set aside.
In substitution it will be decided that Linfox Transport Pty Ltd is liable to pay compensation to Mr Short in accordance with these reasons in respect of an injury being an increased C6/7 right posterior lateral disc protrusion, which occurred on 15 March 2016.
Application 2017/5781 (permanent impairment claim)
The decision under review, being the decision made by Linfox Transport Pty Ltd on 18 September 2017, will be set aside.
The matter will be remitted to Linfox Transport Pty Ltd for reconsideration in accordance with these reasons, with the direction that Mr Short has suffered an injury, namely a C6/7 right posterior lateral disc protrusion, which has resulted in a permanent impairment.
Applications 2016/4343, 2016/6017, 2017/0344 and 2017/5781
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, Linfox Transport Pty Ltd shall pay the costs incurred by Mr Short in these proceedings.

I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

........................................................................
Associate
Dated: 2 April 2019

Date(s) of hearing: 14, 15, 16, 17 and 18 May 2018

Counsel for the Applicant: Mr K Pattenden

Solicitors for the Applicant: Santone Lawyers

Counsel for the Respondent: Mr C Clark

Solicitors for the Respondent: Moray & Agnew Lawyers

[2019] AATA 613

2 April 2019

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Remedies

Costs

Duty of Care

Date(s) of hearing:	14, 15, 16, 17 and 18 May 2018
Counsel for the Applicant:	Mr K Pattenden
Solicitors for the Applicant:	Santone Lawyers
Counsel for the Respondent:	Mr C Clark
Solicitors for the Respondent:	Moray & Agnew Lawyers