Talevski v Famco Lighting Pty Ltd
[2011] VCC 1519
•30 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04110
| METODI TALEVSKI | Plaintiff |
| v | |
| FAMCO LIGHTING PTY LTD | First Defendant |
| and | |
| LEWIT INDUSTRIES AUST PTY LTD | Second Defendant |
---
| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9, 10, 15 and 16 November 2011 |
| DATE OF JUDGMENT: | 30 November 2011 |
| CASE MAY BE CITED AS: | Talevski v Famco Lighting Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1519 |
REASONS FOR JUDGMENT
---
SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS –Serious injury application – plaintiff employed by Lewit and subsequently by
Famco – plaintiff has suffered symptoms of injury during the period of employment with Famco –
whether the period of employment with Lewit contributed to the production of the plaintiff’s injury –
Famco conceded that its employment contributed to pain and suffering consequences which were at
least very considerable
LEGISLATION – Section 134AB of the Accident Compensation Act 1985
CASES CITED – Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Filipowicz v Arnold
Ribbon Co Australia Ltd; Filipowicz v AG Staff Pty Ltd [2011] VCC 287
JUDGMENT – Plaintiff is granted leave to bring a proceeding at common law pursuant to section
134AB(16)(b) of the Act to recover damages for injuries for pain and suffering and arising out of his
employment with Lewit.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with | L N Christie & Co |
| Ms S Bailey | ||
| For the First Defendant | Mr P Jens | Hall & Wilcox |
| For the Second Defendant | Mr P Scanlon QC with | Lander & Rogers |
| Ms A Wood | ||
| HIS HONOUR: |
Introduction
1 At the commencement of the hearing of the Originating Motion, Mr McGarvie SC announced his appearance with Ms Bailey for the plaintiff; Mr Jens announced his appearance for the first defendant (“Famco”); and Mr Scanlon QC announced his appearance with Ms Wood for the second defendant (“Lewit”).
2 The plaintiff commenced employment with Lewit on 30 January 1991. In about January 2004, Famco allegedly bought out the business conducted by Lewit and subsequently became the employer of the plaintiff.
3 When the proceeding was called on, Mr McGarvie and Mr Jens announced that the proceeding against Famco had settled, with Famco consenting to the plaintiff being given leave to bring a proceeding at common law to recover damages for an injury which the plaintiff suffered to his left knee.
4 The proceeding then commenced with the plaintiff contending that he had suffered an injury to his right shoulder in his employment with Lewit which was serious. Furthermore, that the period of employment between 20 October 1999 and the time when the Famco became the plaintiff’s employer, required the plaintiff to perform work which was part of the cause of the plaintiff's compensable injury to his left knee, and that it materially contributed to the consequences ultimately suffered by the plaintiff which led to Famco conceding that the plaintiff had suffered a serious injury.
5 As a result of the resolution of the proceeding between the plaintiff and Famco, Mr Jens withdrew. The proceeding then concerned whether the plaintiff suffered a compensable injury to his right shoulder, and whether part of the cause of the compensable injury to the plaintiff’s left knee was his period of employment with Lewit.
The Proceeding
6 The plaintiff’s proceeding with respect to both the right shoulder and the left knee were limited to pain and suffering consequences.
7 The body function which the plaintiff says has been lost or impaired is his right shoulder and his left knee.
8 The following evidence was adduced during the hearing:
(a) The plaintiff gave evidence and was cross-examined; (b) The plaintiff tendered his Court Book (“PCB”), pages 5-13; 18-30(f); 32-103: Exhibit A; (c) Lewit tendered its Court Book (“DCB”), pages 1-53 and 56-66: Exhibit 1; (d) Film taken of the plaintiff on 22, 24 and 25 March 2010: Exhibit 2; (e) Film taken of the plaintiff on 21 and 22 October 2010: Exhibit 3. 9 The application is brought under the definition of “serious injury” contained sub-s. (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
10 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has a suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c)
Sub-s.(38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”.
(d)
Sub-section (38) (h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e)
In conformity with Barwon Spinners Pty Ltd and Ors v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-s. (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] (2005) 14 VR 622, at paragraph 11
11 I am required by s.134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
12 The plaintiff was born on 14 June 1942. He is now seventy years of age. He is a married man with two children who are adult and independent. He has a number of grandchildren. His wife is about sixty-seven years of age. She does not work.
13 The plaintiff was born in Macedonia. He achieved modest schooling to the age of eleven years. He subsequently worked on the family farm. In 1970, he migrated to Australia. He was then twenty-seven years of age.
14 The plaintiff commenced working for Lewit on 30 January 1991 as a process worker in its factory at Collingwood.
15 In the plaintiff's first affidavit sworn 9 April 2009, he gave an elaborate description of the nature of the work he was required to perform with Lewit. Essentially, it was heavy manual work which placed stress and strain on the plaintiff's upper and lower limbs. It is unnecessary to repeat the plaintiff's description of his work tasks in any greater detail, because it was not challenged by Mr Scanlon in any respect.[2]
[2] PCB 19-22
16 In about late 2001/early 2002, the plaintiff experienced pain in his right shoulder. He reported that to his boss. The report was entered into an injury book. The plaintiff continued working in pain. By June 2002, he was finding it difficult to tolerate.
17 The plaintiff saw Dr Ristevski, general practitioner, on 14 June 2002. Dr Ristevski recorded that the plaintiff complained of progressive right shoulder pain.[3] He sent the plaintiff off to have an ultrasound which Dr Ristevski considered showed a 1.6 centimetre full thickness tear involving the anterior portion of the supraspinatus tendon with minor impingement of the subdeltoid bursa on shoulder joint abduction.[4]
[3] PCB 37
[4] PCB 37. The ultrasound is at PCB 96.
18 Dr Ristevski considered that it was appropriate to treat the plaintiff conservatively. He recommended analgesics and the imposition of work restrictions to reduce the plaintiff's need to lift and undertake work overhead. He provided the plaintiff with a relevant certificate. The plaintiff gave the certificate to Lewit. That resulted in Lewit putting the plaintiff on modified duties. The plaintiff was able to tolerate the modified duties.
19 The modified duties created a different problem for the plaintiff. He was put on to a machine which bent light reflectors. It required him to be on his feet all day. It involved constantly twisting to obtain pieces of aluminium to place the same into the machine. It also required him to press a foot pedal thousands of times a day to activate the machine using his right foot which required him to place weight on his left foot. It led to him experiencing pain in his left knee.[5] Mr Scanlon did not challenge the plaintiff's description of the work he performed while on modified duties.
[5] PCB 22
20 The foregoing is sufficient to describe the circumstances in which the plaintiff says that he suffered a compensable injury to his right shoulder and a compensable injury to his left knee. I will now deal with the claim by the plaintiff that the compensable injury to his right shoulder has consequences which are “serious”.
The Right Shoulder
21 I will firstly turn to the evidence given by the plaintiff of the consequences which he says he has suffered since suffering the compensable injury to his right shoulder.
22 In his first affidavit, the plaintiff said that he experienced difficulty with his work with Lewit, and later with Famco, which resulted in ongoing pain in both his right shoulder and left knee. Throughout the balance of that affidavit, he did not distinguish between the difficulty he experienced with his right shoulder when compared to his left knee, preferring to refer to them collectively as being the cause of his difficulties.
23 However, during cross-examination, I was left with a very different impression of the extent to which the plaintiff’s right shoulder interfered with his capacity to undertake the modified duties he did after he gave the certificate to Lewit.
24 The plaintiff said that he had no time off work as a result of suffering the compensable injury to his right shoulder, and he emphasised that when he said that he had not even had one day off work.[6] He said that if it were not for the injury to his right knee, he would be able to continue undertaking the modified duties.[7] Mr McGarvie based his submissions partly on the injury to the right shoulder having consequences which were “serious” because the plaintiff's full capacity for work had been permanently reduced to him being able to undertake modified duties only.
[6] Transcript 43
[7] Transcript 72
25 The plaintiff said in his first affidavit that he experienced difficulty raising his right arm above head level, lifting with his right arm and using his right arm when showering, because all of these movements aggravated the pain in his right shoulder. During cross-examination, he demonstrated that, with his right arm at his side. He could not move it around his back beyond the point of the pocket on the back of his trousers; in other words, a matter of a few centimetres. He also demonstrated that he could not lift his right arm from the same position beside his body beyond about 90 degrees.
26 In the same affidavit, he said that his social and recreational activities were restricted by the right shoulder injury. Activities such as swimming, fishing, undertaking long drives, mowing his lawns and gardening were significantly restricted.
27 In his second affidavit sworn 22 June 2010, he said that the symptoms he experiences in his right shoulder continue to worsen. He has significant soreness and pain in his right shoulder which affects his right elbow and the way he uses his right upper limb. His right shoulder interferes with his sleep because it becomes numb, rigid, cold and sore. He has difficulty rotating his right arm above head level without experiencing pain.
28 In his third affidavit sworn 21 October 2011, the plaintiff essentially repeated what he said in his previous two affidavits regarding the difficulties he has with his right shoulder.
29 Dr Ristevski has treated the plaintiff for the compensable injury to his right shoulder since June 2002. He has provided five medical reports. I have read those medical reports carefully. My impression is that Dr Ristevski did not consider that the right shoulder injury is so disabling as to incapacitate the plaintiff for work. It is also my impression that it is the plaintiff’s left knee injury which is the most problematic, and was given more attention by Dr Ristevski.
30 The plaintiff has had very little medical treatment for his right shoulder. He had five episodes of physiotherapy. He takes Panadol Osteo for pain relief. It is an over-the-counter medication which the plaintiff prefers to obtain with a prescription because he can then obtain it at a reduced price, which I presume is the case because he is a pensioner. He takes that medication up to three times a week when, as he put it, he has “a bigger problem”.[8]
[8] Transcript 54-55
31 The plaintiff did not describe the quantity of medication he takes for his right shoulder and left knee in any of his affidavits or in his oral evidence. Mr McGarvie referred me to a history taken by Mr Brearley, orthopaedic surgeon, which he submitted was consistent with the plaintiff's evidence that he takes medication up to three times a week, but Mr McGarvie emphasised that the plaintiff told Mr Brearley that he takes up to six tablets per day when his pain is severe.[9]
[9] PCB 73b
32 Dr Ristevski did not offer an opinion of any real moment regarding the extent of the plaintiff's right shoulder injury. That is my impression from his many reports, that he considered it to be an injury which continues to trouble the plaintiff and interferes with his ability to move it in a free and unrestricted manner.
33 Mr Brearley examined the plaintiff on 13 March 2008; 12 February 2009; 13 May 2010, and 6 October 2011. He was satisfied that the plaintiff had suffered an injury to his right shoulder consistent with the report of the radiologist who conducted the ultrasound in 2002. In his last report, he was of the opinion that the plaintiff's right shoulder injury alone was the cause of moderate incapacity for employment, and more particularly, that the plaintiff would be unable to do any work involving heavy lifting or work above shoulder level and would require a lifting restriction of 5 kilograms. He considered that the plaintiff could work 4 hours a day five days per week.[10]
[10] PCB 73e
34 Mr Myers, vascular surgeon, examined the plaintiff on 7 August 2008; 29 April 2010 and 8 September 2011. He was satisfied that the plaintiff had suffered an injury to his right shoulder consistent with the report of the radiologist who conducted the ultrasound in 2002. He expressed a stronger opinion than Mr Brearley regarding the plaintiff's capacity for work. He was of the opinion that the injury to the plaintiff's right shoulder was sufficient to cause him to be unable to undertake his pre-injury work.[11]
[11] PCB 85c
35 The plaintiff was referred by Dr Ristevski to Mr Kiellerup, orthopaedic surgeon, for treatment. Mr Kiellerup saw the plaintiff on 22 April 2010 for treatment, and then on 1 June 2010. Mr Kiellerup was of the opinion that the plaintiff had suffered a full thickness rotator cuff tear. The basis for that opinion was an x-ray and ultrasound of the right shoulder taken on 1 June 2010 on his referral.[12] Although Mr Brearley and Mr Myers considered that surgical repair of the plaintiff's right shoulder was something worthy of consideration, it was not recommended by Mr Kiellerup. Furthermore, Mr Kiellerup was of the opinion that the plaintiff could not do overhead or repetitive work, but by implication he did not say that the plaintiff was unfit for full-time work with those modifications.[13]
[12] PCB 91g
[13] PCB 91e-91f
36 The defendant had the plaintiff examined by Dr Stevenson, physician, on 17 May 2010; 2 August 2010 and 8 November 2010. It also engaged Dr Gelber, radiologist, to peruse and interpret radiology of the plaintiff's right shoulder, including an ultrasound taken on 22 April 2008 on referral by Dr Ristevski. It is clear that neither Dr Stevenson nor Dr Gelber were satisfied that the appearances on the ultrasound taken on 22 April 2008 showed very different appearances. Dr Stevenson considered that the tears had healed, and Dr Gelber considered that the ultrasound undertaken on 22 April 2008 showed a completely intact rotator cuff.[14]
[14] DCB 20 and 38
37 The defendant also had the plaintiff examined by Mr Jones, orthopaedic surgeon, who examined the plaintiff on 4 May 2006; 29 October 2008 and 12 May 2010. Mr Jones was of the opinion that the plaintiff had suffered an injury to his rotator cuff.[15] It also had the plaintiff examined by Dr Brown, occupational physician, who was of the opinion that the plaintiff had suffered a rotator cuff lesion.[16] He was provided with the ultrasound undertaken on 22 April 2010.
[15] DCB 77, and also expressed in his earlier reports
[16] DCB 91k and 93
38 After considering all of the evidence, I have concluded that the pain and suffering consequences of the impairment of the function of the plaintiff's right shoulder do not meet the statutory test. However, having reached that conclusion, there are some observations which I believe I am bound to make given the way in which the Lewit’s response to the plaintiff's application was put.
39 Firstly, I accept that the plaintiff suffered a compensable injury which resulted from the heavy work he was required to perform with Lewit. In that respect, I accept the plaintiff's evidence, and in particular, the evidence of Mr Kiellerup.
40 Secondly, I reject the opinions of Dr Stevenson and Dr Gelber. Although the two ultrasounds which they compared show different appearances, the subsequent ultrasound which Mr Kiellerup examined confirmed the tears. I prefer the opinion of Mr Kiellerup. Furthermore, Mr Brearley was asked to consider the opinions of Dr Stevenson and Dr Gelber. He stood by the opinions he had previously expressed regarding the nature of the injury the plaintiff had suffered to his right shoulder.[17] Neither Dr Stevenson nor Dr Gelber was provided the 2010 ultrasound.
[17] PCB 73a
41 I will now turn to the reasons why I propose to dismiss the plaintiff's application relevant to the right shoulder.
42 Firstly, and despite the appearances on ultrasound, and no doubt during clinical examination of an injured right shoulder, neither Dr Ristevski nor Mr Kiellerup was moved to suggest that the plaintiff required anything other than very modest medical treatment. Five episodes of physiotherapy and medication two to three times per week, even up to six tablets when the pain in the plaintiff's right shoulder was severe, is, on any view, modest medical treatment, which rather more demonstrates an injury resulting in pain and restriction of movement which were rather modest.
43 Secondly, whilst the plaintiff was put onto modified duties, he was nonetheless undertaking manual tasks which he was able to tolerate, and to the point where he readily conceded that if it were not for the left knee injury, he would have been able to continue working indefinitely. I do not consider the fact that he lost a level of capacity for work to be as significant as contended for by Mr McGarvie.
44 Thirdly, I was not convinced that the plaintiff was entirely candid when he gave his oral evidence. His demonstration of being barely able to move his right arm behind his back, and from his side elevating it not much higher than 90 degrees was seriously inconsistent with what I observed on the films of the plaintiff.
45 In the film taken on 24 March 2010, the plaintiff was seen walking. At about 10:44 am, he stopped and spoke to a man in the street. He extended his arms behind his back, clutching his hands together for about three minutes and at no time did he appear to be uncomfortable or behaving in a manner that suggested he could not easily occupy that pose. Yet in his oral evidence he denied being able to undertake that degree of physical movement with his arms, and when confronted with the film, he said he did not move his shoulders but his arms at the elbows. It is simply impossible to physically clutch one's hands behind one's back without bringing one’s shoulders into play.
46 In the film taken on 21 October 2010, the plaintiff cleaned his car using a rag. He bent repeatedly, and was then out of sight, but when he stood up it was clear that he had a rag in his hands which he wrung out on a least two occasions. On 22 October 2010, he used a rag in his right hand to vigorously clean the windows of his car.
47 On both days the plaintiff also appeared to engage in some gardening activities. He used a hose and a rake. On 22 October 2008, he carried a door with another man to a trailer and manually handled it.
48 The overall impression of what I saw on the films, when compared with the demonstration given by the plaintiff of his right shoulder movements and his old evidence, is that he was not being candid in his evidence. It removed any real confidence I had in accepting that the plaintiff has any significant problems with his right shoulder which prevent him from, firstly, engaging in modified duties which he was able to do with Lewit, and in a domestic setting at his home. The films seemed to me to demonstrate that he did not discriminate when undertaking manual work in the use of his left and right hands.
49 For the sake of completeness, it seems to me that the plaintiff's capacity to undertake modified duties; the significant lack of medical treatment; the modest level of use of medication, and the contrast between his demonstration in the witness box and his oral evidence compared to what I saw in the films, do not persuade me that the consequences of the impairment of the right shoulder meet the statutory test.
The Left Knee/Causation
50 Mr Scanlon did not challenge the concession made by Famco that the pain and suffering consequences contended for by the plaintiff during the period when Famco was the plaintiff’s employer meet the statutory test.
51 Mr Scanlon submitted that the plaintiff did not suffer any symptoms of any kind to his left knee while employed with Lewit. The first occasion when he did suffer such symptoms was when he saw Dr Ristevski on 30 November 2005. Dr Ristevski recorded that the plaintiff told him that the pain in his left knee evolved over a period of two weeks prior to that consultation.
52 Mr Scanlon cross-examined the plaintiff to establish that he had not suffered any symptoms of pain in his left knee until November 2005. At first the plaintiff said that he had made complaints which were ignored, but later said that the pain began in November 2005:
Q.
“And so you start there in effect on one view on 27 January '04 and you don't suffer injury to your knee until November of 2005, a period of almost two years after you'd left the employment of our client?---
A.
I complained every day but they wouldn't report it and put it in the book.
Q.
No, no, I'm asking you your first complaint in relation to your left knee, your first complaint about your left knee was to your GP in November of 2005 and that's when - that is November of 2005, and that's when you first had pain in your left knee, is that correct?---
A.
Yes, well that's when they actually put me down in the book and that's when I went and saw my doctor.
Q.
That's right. And that's at a time when you're employed by, as we've already established, Famco?---
A. Yes. Q. Is that right?--- A. Yes. Q.
Now, to Mr Myers who you saw (Plaintiff's Court Book 85C your Honour) you told him that the problems with the left knee became severe in 2006 is that right?---
A. Yes, as time was going on it was getting worse. Q.
But it started - I won't put this to you again, but for the last time, it started in November 2005?---
A. Yes."[18] [18] Transcript 73-74
53 I do not accept the plaintiff's evidence that he experienced pain in his left knee before November 2005. It is clear from the reports of Dr Ristevski that the plaintiff made complaints to him of injury when the same were incurred. He certainly did that in relation to his right shoulder. If he had suffered pain in his left knee earlier, I think it is unlikely that he would not have gone off to Dr Ristevski and made that complaint.
54 The plaintiff was first employed by Lewit in 1991. However, due to the reintroduction of common law claims, as and from 20 October 1999, the plaintiff is limited to a claim that the injury to his left knee was produced partly by his employment with Lewit as and from 20 October 1999 to the date when Famco bought out Lewit in around January 2004 and it became his employer.
55 Before proceeding to determine whether the evidence discloses a basis for the claim made by the plaintiff, I must firstly deal with when it is likely that Famco became the employer of the plaintiff. Neither the plaintiff nor Lewit were able to point precisely to when that event occurred.
56 Mr Scanlon referred to an extract of the plaintiff's taxation return for the year ending 30 June 2004.[19] It bears the ABN number of Famco. Therefore, he submitted, that Famco had been the employer of the plaintiff from 30 June 2003.
[19] DCB 56
57 Mr McGarvie referred to a letter of Mr Lewit dated 27 January 2004 which is curious in many respects. Firstly, it is a letter written by Mr Lewit on behalf of Famco referring to its acquisition of Rham Industries Aust Pty Ltd. It was an offer of employment by Famco to the plaintiff on the same terms and conditions “previously applicable with Rham”. It rather gave me the impression that the plaintiff was not employed by Lewit, but by Rham Industries Aust Pty Ltd. The letter does not refer to Lewit ever having been the employer of the plaintiff.
58 Neither Mr McGarvie nor Mr Scanlon submitted that the plaintiff was employed by any other corporate entity except for Lewit before Famco bought out Lewit.
59 I am perplexed as to why the plaintiff and Lewit were not able to determine when the plaintiff actually became an employee of Famco. I cannot accept that determining that fact would have been difficult given that Famco was a party to this proceeding at one stage. To leave it to extracts of taxation returns and a letter of offer of employment as the only basis to determine when Famco became the plaintiff's employee is surprising to say the least.
60 I am not sure what to make of the letter of Mr Lewit. I am not sure whether it demonstrates that the plaintiff was employed by Rham Industries Aust Pty Ltd. More confusing still is that the letter was signed by the plaintiff on 27 January 2004 as his acceptance of the offer, but the letter of offer then discloses:
“This document becomes effective from the date Rham is transferred to
Famco Lighting.”
61 The extract of the taxation return and the letter are in serious conflict. The only conclusion I can reach is that the ABN number referred to by Mr Scanlon was the ABN number of Lewit or Rham Industries Aust Pty Ltd and that the buyout by Famco involved its assumption of that ABN number. The ASIC historical company extract to which Mr Scanlon referred me is dated 17 July 2009. No similar extract was produced for 2003 or 2004 to prove that the extract of the taxation return is correct.
62 I am satisfied that the plaintiff was employed by Lewit, and that he did not become an employee of Famco until some time after January 2004, but I am unable to determine when that occurred.
63 The foregoing must, therefore, mean that the plaintiff worked with Lewit from 20 October 1999 to at least January 2004, which is a period of just over four years. It must also means that he undertook work with Famco for about one year and ten months before he first experienced pain in his left knee which led him to see Dr Ristevski in November 2005.
64 The issue regarding the date upon which the plaintiff commenced with Famco was important to both the plaintiff and Lewit. Essentially, Mr McGarvie submitted that the plaintiff's work was physically arduous work which placed stress and strain on his left knee, and that the period of his employment with Lewit from 20 October 1999 to about January 2004 could not be excised as a relevant period to the production of the left knee injury.
65 What is clear from the plaintiff's evidence is that the work he performed with Lewit while on modified duties required him to place weight on his left foot while operating the bending machine. What is also clear from the plaintiff's evidence is that from the time he was employed by Famco, he was taken off modified duties. He described what then occurred as follows:
Q.
“And because of the way Famco treated you, you ceased work on 26 July 2007 just after your 65th birthday?---
A. Yes. Q. That was because Famco made your work very hard is that right?--- A.
That's right. They wanted me to be 100 per cent to work everywhere, and I wasn't able to do that.
Q. And Famco were tough on you?--- A. Yes, that's right. I mean I wanted to work up to the age of 70. Q.
Doing the work that you were doing with Lewit on light duties, if Lewit had stayed the boss, you could have kept working?---
A. Yes."[20] [20] Transcript 44
66 The plaintiff's evidence regarding how much harder his work became with Famco was basically limited to the evidence just referred to, and equally brief and uninformative statements in his first affidavit,[21] and his second affidavit.[22]
[21] PCB 22
[22] PCB 28
67 The only conclusion that I can reach regarding the work which the plaintiff was required to perform with Lewit is as I have summarised it in paragraph 66 above, and that is, in a general sense, he was no longer permitted to undertake modified duties and was exposed to doing much harder work, which I infer means that he suffered greater stresses and strains on his left knee. Beyond that there is no evidence to define how much more difficult his work was following his employment with Famco.
68 When I say there is no evidence, what I mean by that is no evidence which came from the plaintiff. There are certainly histories given by the plaintiff to medical examiners of the work he was doing before he suffered symptoms in his left knee, for example, in the history he gave Mr Brearley, he said he was pushing very large trolleys from the loading bay across a stores area to workstations up an incline and over 50 or 60 metres about twice a day. Mr Brearley also obtained a history from the plaintiff that he was doing light duties full-time and coping, but was then asked to do his former job which he was unable to do.[23] All I can make of this is that the reference to pushing the very large trolleys is a reference to work which the plaintiff probably performed when he was asked to do his former job by Famco.
[23] PCB 59, 62 and 67
69 Mr McGarvie principally relied upon the opinion of Mr Brearley. Mr Brearley was asked a number of questions relevant to the contribution to the production of the injury suffered to the plaintiff's left knee by his employment with Lewit and then with Famco. The relevant answers to those questions are as follows:[24]
“… His left knee symptoms were reported in 2005 but damage to the joint would have occurred prior to that although it was asymptomatic. This refers to the osteoarthritic change ….
His employment which was of a heavy nature as described in the first history taken did make a significant contribution to the injury to his … left knee … .[25]
His employment with Famco Lighting Pty Ltd after January 2004 contributed to his injuries to a considerable extent. He started work with the company in 1991 and he worked there until 2007. The contribution would be on the time on risk basis. Approximately one quarter of his present disability and impairment would result from the post-2004 employment."
[24] PCB 72-73
[25] There he is referring to the history which I have repeated in paragraph 69 above
70 The latter part of his opinion is of dubious value, because it is based upon a work history commencing in 1991 rather than from 20 October 1999. However, what value there is in that part of his opinion is that the periods of employment pre-dating and post-dating January 2004 are implicated in the production of the injury to the plaintiff’s left knee, which was diagnosed in November 2005.
71 A more particular question was put to Mr Brearley subsequently based upon employment post 20 October 1999 rather than from 1991. In essence, he said that there was a direct relationship between the plaintiff's employment with Lewit post 20 October 1999 in the production of the injury to his left knee, and that his employment with Famco post January 2004 continued to contribute to osteoarthritic changes which had become established in the plaintiff's left knee joint.[26]
[26] PCB 73d-73e
72 The only other medical practitioner who was asked to seriously consider the question of contribution was Mr Myers. Essentially, he was of the opinion that all the plaintiff's problems in his left knee resulted from employment prior to January 2004; however, he did consider that there may have been some aggravation in his subsequent employment with Famco, but to a minor degree.[27]
[27] PCB 84
73 Subsequently, he was of the opinion that all of the “disability” in the plaintiff's left knee occurred subsequent to January 2004, and that the contribution by Lewit prior to January 2004 was that the disability in the left knee was an aggravation of previously asymptomatic degenerative disease.[28] I have worked on the assumption that Mr Myers used the word “disability” to denote the consequences of the aggravation of the asymptomatic degenerative disease which became evident in November 2005, rather than using the word “disability” as a synonym for injury. The drafting of his report left me in some doubt as to whether he has used the words disability and injury interchangeably.
[28] PCB 85c
74 I have reviewed the other medical opinions. There is a little reference to causation in those opinions which is of any assistance.
75 The question of causation which arises for consideration in this proceeding is no novelty in personal injury claims, especially where there is an allegation that the injury was acquired by the worker over a fairly long period of time resulting from the micro trauma of a work process which later resulted in an injury, and often the injury is an aggravation of pre-existing degenerative change in bones and joints. Similar experience is evident in disease cases, such as exposure to chemical agents and asbestos. Equally, the question of causation sometimes involves the contribution to the ultimate production of an injury by multiple employers.
76 The route to resolution of whether two or more employers are liable is to be determined on the facts, and very often, on the basis of well considered medical opinion.
77 The submissions made by Mr Scanlon really amount to saying that either no contribution was made to the ultimate production of the injury to the plaintiff's left knee by his employment with Lewit between 20 October 1999 and January 2004, or that the contribution was immaterial. On the other side, the submissions made by Mr McGarvie were to the effect that the plaintiff was involved in work both pre-dating and post-dating January 2004 which placed stress and strain on his left knee, probably producing sufficient micro trauma to create progressive osteoarthritic change in the plaintiff’s left knee, which continued until his left knee became painful and he saw Dr Ristevski in November 2005.
78 I think the opinion expressed by Mr Brearley is based upon an understanding of the nature of the work the plaintiff undertook both pre-dating and post- dating January 2004. The history he obtained is certainly more detailed than the evidence given by the plaintiff in his affidavits and orally.
79 I have carefully considered the evidence given by the plaintiff and the opinion of Mr Brearley. What that consideration has led me to is that there is a strong inference to be drawn that between 20 October 1999 and January 2004, the plaintiff was engaged in work which was physically arduous, in that it placed stress and strain on his left knee because he was required to stand for significant periods of time involving placing his weight on his left knee. That was the setting in which the plaintiff suffered progressive osteoarthritic change in his left knee which subsequently was aggravated further by the plaintiff engaging in even more physically arduous work as described by Mr Brearley. It is difficult to see how, as a matter of logic and commonsense, that the period between 20 October 1999 and January 2004 should not be considered or was immaterial to the production of the ultimate injury to the plaintiff’s left knee.
80 It seems to me, therefore, that the plaintiff's employment with Lewit between 20 October 1999 and January 2004 contributed to the production of the injury to the plaintiff's left knee diagnosed in November 2005 in a material way. I think this is consistent with the thesis articulated by Ashley JA in Grech v Orica Australia Pty Ltd & Anor[29] regarding causation.
[29] (2006) 14 VR 602 at 614 and following which I adopted and applied in Filipowicz v Arnold Ribbon Co Australia Ltd and Filipowicz v AG Staff Pty Ltd [2011] VCC 287
Conclusion
81 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for injuries for pain and suffering and arising out of his employment with Lewit.
82 After discussion with Counsel, I will pronounce formal orders and will hear the parties on the question of costs.
Afterword
83 The first day of hearing was effectively aborted because Mr Scanlon was instructed to submit that there was a serious legal impediment to the plaintiff being able to maintain the proceeding based upon the construction of section 134AB (3), (4) and (4A) of the Act.
84 It was not clear to me precisely what submission Mr Scanlon was making, nor its ramifications. I made it abundantly clear to Counsel that I was not prepared to commence hearing of the proceeding to find out some days later that the proceeding could not be maintained as a matter of law. The proceeding was adjourned, and resumed on 15 November 2011 when I was informed by Counsel that any argument based upon those subsections was abandoned.
85 The procedure which Judges in this Court have endeavoured to apply to serious injury applications is designed to have the parties be very precise in describing the issues which they intend to raise so that no party is taken by surprise, and the trial Judge has a proper and detailed appreciation of what the issues are which the Judge will need to consider.
86 Part of that procedure is the requirement that the parties provide a statement of issues. What amounts to an issue is surely well understood, and if it is not, then I find that staggering and amounting to a neglect or refusal by members of the profession to undertake a serious analysis of the way in which a serious injury application is to be presented to the Court.
87 In this proceeding, not only were the initial submissions made by Mr Scanlon not ventilated in the Statement of Issues, but the Statement of Issues filed by his client was more in the character of a written submission and of very little assistance in stating what the issues were which would be raised by his client.
88 One day was lost which could have been used productively had proper attention been applied to the issues raised by the factual matrix upon which this proceeding was based and the applicable law.
---
0
3
0