Victorian WorkCover Authority v Assa Abloy Australia Pty Ltd
[2014] VCC 468
•15 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-10-01534
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| ASSA ABLOY AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 9 and 10 May 2013 | |
DATE OF JUDGMENT: | 15 April 2014 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Assa Abloy Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 468 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Industrial accident – indemnity – negligence – causation
Legislation Cited: Accident Compensation Act 1985; Wrongs Act 1958 (Vic) (as amended), s138; Occupational Health and Safety (Manual Handling) Regulations 1999; Occupational Health and Safety (Plant) Regulations 1995
Cases Cited:TNT Australia Pty Ltd v Christie & Ors (2003) 65 NSWLR 1; Victorian WorkCover Authority v Jones Lange LaSalle (Vic) Pty Ltd [2012] VSC 412; Central Goldfields Shire v Haley(2009) 24 VR 378; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Simpson | Russell Kennedy |
| For the Defendant | Mr J Brett | HWL Ebsworth Lawyers |
HIS HONOUR:
1 In this proceeding, it is pleaded that between 18 August 2004 and 7 April 2005, Mr Collin William Kimpton (“the worker”), performed work at a factory under the control of the defendant, such work consisting of standing at a polishing machine, applying low to medium force to metal objects against a spinning wheel, but with a constant posture that required him to stoop and flex his lumbar spine (“the work”). The spine, it is alleged, was placed under abnormal and risk-laden stresses, such that by the time he ceased work on 3 December 2004, the work had materially contributed to discal injury in his lumbar spine (“the injury”), which in turn prevented the worker from returning to work in his normal occupation, resulting in economic loss and pain and suffering (“the damage”).
2 Thereafter, on 13 May 2005, the worker made a claim for compensation for the injury under the provisions of the Accident Compensation Act 1985 (“the Act”) against his employer, a labour hire firm, known as ESP Tecforce Pty Ltd.[1] The plaintiff accepted the worker’s claim and to date amounts have been paid pursuant to the Act on account of the injury totalling $206,801.95.[2]
[1]Exhibit O
[2]Exhibit D
3 The plaintiff, the Victorian WorkCover Authority (“VWA”), seeks an indemnity pursuant to s138 of the Act in respect of the payments of compensation made in relation to the worker’s injury. The indemnity is sought from the host factory known as Assa Abloy Australia Pty Ltd. The VWA contends that the defendant was responsible for the system of work so described and that the defendant’s negligence was a cause of the worker’s injuries.
4 Further, the plaintiff alleges that the injury for which compensation has been paid was caused under circumstances creating a liability in the defendant to pay damages pursuant to s138(1) of the Act. That liability is expressed as follows:
· First, there is a breach of the defendant’s common-law duty of care as a host employer of the worker by failing to have a safe system of work in accordance with the principles laid down in TNT Australia Pty Ltd v Christie & Ors,[3] in that the position of the defendant is analogous to that of an employer and it carries with it the responsibilities as if it were the employer. Within that duty it is contended there are four basic elements to be considered:
[3](2003) 65 NSWLR 1 at paragraphs [41] and [42]
(i) whether the defendant’s operations involved a risk of injury to the plaintiff that was foreseeable;
(ii) what was the practicality of obviating the risk?
(iii) was the worker’s injury caused by the risk in question? And
(iv) was there a failure to eliminate or reduce the risk as far as practicable such that there was want of reasonable care on the part of the defendant?
·Secondly, or alternatively, it is alleged that the defendant is in breach of its duty to the worker as occupier pursuant to Part IIA of the Wrongs Act 1958.
·Thirdly, it is alleged that the defendant is in breach of its obligations pursuant to the Occupational Health and Safety (Manual Handling) Regulations 1999 and/or the Occupational Health and Safety (Plant) Regulations 1995.
Section 138 of the Accident Compensation Act 1985
5 In Victorian WorkCover Authority v Jones Lange LaSalle (Vic) Pty Ltd,[4] Beach J said:
[4][2012] VSC 412 at paragraphs [3] and [4]
“[3]Section 138 of the Accident Compensation Act has been amended on a number of occasions since the accident. …[It would appear] that the version that applies to this proceeding is the current version.
[4]The relevant sub-sections of s 138 applicable to this claim are subss (1) to (4). Those sub-sections provide:
(1) Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria or that would, but for section 134A, create such a liability in respect of the injury or death, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.
(2) In determining for the purposes of subsection (1) whether an injury or death was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria in respect of the injury or death, Divisions 8A and 9 of Part IV must not be taken into account.
(3) The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of—
(a)the amount of compensation paid or payable under this Act in respect of the injury or death; and
(b)the amount calculated, were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958, in accordance with the formula—
[A – B + C)] x X/100
where—
X is the extent, expressed as a percentage, whereby the third party’s act, default or negligence caused or contributed to the injury or death;
A is the amount of damages (disregarding the extent, if any, whereby any other person’s act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death;
B is the amount recovered or recoverable by the Authority, the self-insurer or the employer under section 137 from the Transport Accident Commission (otherwise than under a settlement);
C is the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party.
(4) Judgment against or settlement by a third party in an action by a worker, or dependants of a worker, in respect of an injury or death referred to in subsection (1) does not eliminate or diminish the right of indemnity given by this section, except to the extent provided in this section.
… .”
6 In the case before me, in its Statement of Claim, the VWA pleads an entitlement to relief based upon an allegation that the defendant breached a duty of care it owed the worker and an alternative allegation that the defendant breached a statutory duty “… pursuant to the Manual Handling Regulations 1999 and the Plant Regulations 1995”. It would appear that Part IIA [of the Wrongs Act 1958] redefines the common-law duty owed by an occupier of premises, setting out matters to be taken into account in determining the scope of the duty and whether the duty has or has not been discharged in a particular case.[5]
[5]Central Goldfields Shire v Haley(2009) 24 VR 378 at paragraphs [4]–[6] per Neave JA
7 The parties have agreed Factor A at $750,000. Additionally, Factor C is agreed in the sum of $140,000. There seems to be no issue that Factor B is zero.
8 The issues may be briefly stated as follows. The VWA contends that the defendant was negligent and that this negligence was a cause of the worker’s injuries. In such circumstances, it says that the only issue remaining is the proper quantification of Factor X. On the other hand, the defendant denies that it was negligent and denies that any negligence that can be shown, or breach of duty that might be found, was causative of the worker’s injuries. In such circumstances, it says that the VWA’s claim must fail.
9 In particular, it says that the evidence of the worker, in cross-examination, to the effect that his pain and thus his injury was in fact initiated by a tripping incident at the factory and thereafter the pain worsened until he was forced to stop work, raises the spectre that the work itself, as defined, was not a cause of the injury; or alternatively, the plaintiff has failed to discharge its onus of proof with respect to that issue.
10 I will deal first with the question of whether there was negligence or breach of duty on the part of the defendant which may be relevant to the worker’s injuries. In doing so, it is first necessary to examine the position and any relevant obligations owed by the defendant.”[6]
[6]Victorian WorkCover Authority v Jones Lange LaSalle (Vic) Pty Ltd (supra)
The Defendant
11 In broad terms, the plaintiff alleges the work involves hazardous manual handling associated with a fixed height polishing wheel in an electroplating factory conducted by the host employer, then known as Lockwood Security Products, that dealt with the manufacture and assembly of various metal products, knobs and knockers and other locking devices. The plaintiff alleges that the relevance of the fixed height is that it is a piece of plant or equipment that has to be used by the worker irrespective of the worker’s own height or particular dimensions and thus the worker has to accommodate him or herself around the height of the fixture. The centre point of the circular polishing device was approximately one metre off the ground.
12 Accordingly, the essence of the plaintiff’s case is that the defendant has created a situation of a hazardous manual handling work posture and that such a system is inappropriate for a person such as the worker, who is 6 feet 4 inches in imperial measurement, or 193 centimetres in metric dimensions. The worker’s evidence was that he conducted the polishing whilst standing, because it was the most effective way he could operate the machine, given his dimensions. His evidence was that to sit at the machine created a greater stress because he had to lean forward because of the length of his thighs.
13 Further, the worker commenced employment with the defendant in 2004 as a qualified electroplater and he was performing that work until some weeks prior to 3 December 2004. In this latter period, he was moved into an area called the K & K Section, where he came into contact with the fixed height polishing wheel and was asked to perform work there first for a couple of hours because there was a quality control issue with some of the product further up the line. This necessitated the product to be repolished, such that he was asked to relocate there for a couple of hours to do that repolishing. However, he then finds that that time was extended, first, for a number of days, and then for a number of weeks, and finally, a number of months (“the polishing period”).
14 It is during the polishing period that the plaintiff asserted that the worker first became aware of the onset of pain in the lower back prior to a “devastating episode” on 3 December 2004, which was later corrected to 4 December 2004.
Foreseeable risk of injury
15 It was common ground that for a number of weeks leading up until 4 December 2004, during the polishing period, the worker was required to engage in duties whilst standing at a polishing wheel such that his lumbar spine was constantly flexed due to his height of the order of 193 centimetres. Originally there had been rotation of this task but because of production difficulties, he was required to extend his duties in this position, first, for a number of hours, then for a number of days and ultimately a number of weeks, such that by Friday, 3 December 2004, he had to rest on the way home because of back pain, having suffered from gradually increasing pain in the previous few weeks.
16 Evidence was given by the worker that in his previous occupation when performing a similar task, his employer had raised the height of the polishing wheel so that it did not necessitate him flexing his back. It was put by the defendant in the context of this case, that two operators were using the polishing wheel and it was impractical to lower and lengthen the height of the wheel for two workers who were of disparate heights.
17 In any event, counsel for the plaintiff addressed the foreseeability issue as one where there was an obvious mismatch of the worker’s body height with the height of the polishing machine, such that the resulting posture, over a prolonged period of time, raised or ought to have raised, in the mind of a reasonable employer, the risk of injury to the lumbar spine. I accept this submission.
18 Further, I accept the plaintiff’s submission that the requirement to perform the manoeuvre for a prolonged period of time with the relative dimensions already referred to amounted to “hazardous manual handling” within the meaning of Regulation 13(2) of the relevant Regulations. In particular, I consider that the work consisted of manual handling having the characteristic of repetitive or sustained awkward posture or movement within the meaning of sub-Regulations (ii) and (iii) thereof. Accordingly, the employer should have identified the work as a hazardous manual handling task and therefore should have ensured that an assessment was made to determine whether there was any risk of a musculoskeletal disorder affecting the worker occurring as a result of that task: (Regulation 14(i)). Thereafter, the defendant should have ensured that any risk of a musculoskeletal disorder was either eliminated or, if it is not practicable to eliminate the risk, is reduced so far as is practicable.
19 It was submitted on behalf of the defendant that it was not practicable to eliminate or reduce the risk of injury, nor was it reasonable to do so under Part IIA of the Wrongs Act, or, if applicable, at common law.
20 In my view, there was a breach of the defendant’s duty to the worker pursuant to the relevant Occupational Health and Safety (Manual Handling) Regulations and also a breach of its duty to provide a reasonable response to a foreseeable risk of injury. If it was not practicable to alter the height of the machine because two workers were operating same in tandem, it is reasonable, in my view, that the employer should therefore redeploy one or other of the workers so that the fixed height of the machine will not constitute a risk to the relevant worker, or alternatively, devise an alternative system of work. The plaintiff has received support for both contentions from the expert engineer, Mr Fitzpatrick, in this regard. (Exhibit QQ)
Causation
21 The question of causation was described by defence counsel as “the main issue”[7] in the case and it was the subject of spirited submissions by both counsel.
[7]Transcript (“T”) 245, L20
22 The evidence before me by the worker raised the spectre of four possible causes of the worker’s injury, loss and damage, being a right-sided L5-S1 disc prolapse for which compensation of $206,801.95 had been paid by the plaintiff:
· First, there was a stumbling incident at work where the worker tripped on some hose on the ground setting off a twinge of pain which subsequently increased over the following weeks, leading to an acute episode on Saturday, 4 December 2004 on his way to work.
· Secondly, there was the polishing work between late October/early November and 3 December 2004.
· Thirdly, there was the acute episode on Saturday, 4 December 2004.
· Fourthly, there was the possibility of the polishing work on his return on about 12 December 2004 until late March/early April 2005.
23 It would appear that the acute episode on Saturday, 4 December 2004 was not caused by any independent injury or particular activity. Accordingly, the acute episode can be seen as a sequelae to the state of the lumbar spine prior to 4 December 2004. Equally, the work from 12 December 2004 to early April 2005 is not accompanied by any complaint of causing symptoms or exacerbating the injury.[8]
[8]T182, L25 – T183, L5
24 Accordingly, on the evidence before me, the two possible causes of the injury, loss and damage is the stumble on the hose or the polishing work prior to 4 December 2004, or both. In this context, it is only the polishing machine work upon which the plaintiff is relying which is causative of the injury, loss and damage.[9]
[9]T180, L18
The pleadings
25 By Writ filed in this Court and dated 8 April 2010, the plaintiff alleged that the worker suffered injury on 3 December 2004 as a result of being required to work on benches that were too low and also being required to operate a manual hoist line, which activities constituted an accident which in turn was caused by the negligence of the defendant and/or a breach of Part IIA of the Wrongs Act (Vic).
26 On or about 7 May 2013, the plaintiff gave notice that it was intending to amend the Statement of Claim to alter the particulars of work to working “on a fixed height polishing wheel (“the polishing wheel”) fixed in or around benches that were too low” et cetera. Then, on the first day of hearing, being 8 May 2013, the plaintiff gave further notice that it wished to delete the date of 3 December 2004 and plead a period of work, being from 18 August 2004 until on or about 7 April 2005, and deleting any reference to operating a manual hoist, but claiming that the work had precluded the worker from performing work at the premises after 7 April 2005. The defendant consented to the amendments but submitted that it had materially changed the nature of the case it had to answer but that “we can deal with it”.[10]
[10]T2, L21
The Plaintiff’s evidence
27 In the context of the defendant alleging that the injury was initiated by the stumble over a piece of hose as distinct from the polishing work, I consider that the sequence of injury is revealed by the following block of evidence:
Q:“Did you stumble over a piece of hose?---
A:I did stumble over a hose but at the time I didn’t take it to be of great significance.
Q:But you immediately felt back pain?---
A:I did feel a twinge but as I say, at the time I did not take it to be of that great of significance.
Q:But then that back pain continued and developed?---
A:That’s correct.
Q:And it occurred continuously from that time on?---
A:That’s correct, yes.
Q:Until 3 December when you weren’t actually working it became crippling?---
A:Yes, when I wasn’t actually - I was actually working on 3 December.
Q:You were going to go to work?---
A:On 4 December I didn’t work.
Q:Sorry, on the day you went to work and on the way to work you felt crippling back pain?”
HIS HONOUR:
Q: “4 December?---”
MR BRETT:
Q: “So your pain started when you stumbled?---
A:Yes, that’s correct.
Q:And it developed continuously from that time on?---
A:That’s correct.
Q:And came to a head on your way to work on 4 December?---
A:That’s correct.
Q:The day when you had been doing some polishing work?---
A:That’s correct.
Q:And on your WorkCover claim form you have put the date of injury as 3 December, that appears to be incorrect. I will take you to your worker’s claim form, you see the court book in front of you?---
A:Yes.
Q:Page 170, and you have that the date of injury was 3 December, do you see that?---
A:Yes.
Q:We now know that should be 4 December?---
A:Yes, okay.
Q:The day before when you say at question 17, ‘What were you doing just before the injury occurred?’, and you say, ‘metal polishing’?---
A:Yes
Q:You say your back was hurt while polishing, it happened unexpectedly, do you see that?---
A:Yes.
Q:But what had happened was you had hurt yourself stumbling and then over the next couple of weeks while you were polishing that pain continued to develop?---
A:Yes, that’s correct.
Q:And also during that time you had been doing some work on the hoists?---
A:Yes.
Q:And you had also been doing some work bending over benches doing racking work?---
A:Yes, that’s correct.
Q:All those things were work you were doing during which time the pain that started when you stumbled had developed?---
A:Yes.
I have nothing further, Your Honour.”
RE-EXAMINED BY MR SIMPSON:
Q:“With regard to your WorkCover claim form at 170, when you say in the answer to 17: ‘What were you doing just before the injury occurred", and you say, ‘Metal polishing’, that's on 3 December?---
A:That was on 3 December, yes.
Q:What was the metal polishing you were doing, to what extent and to what form?---
A:I was doing escutcheons, the work article that the defence counsel mentioned yesterday involving chrome burn work were lock barrels, the work that I was doing later on in the month were escutcheons which - I can’t see any in the room to point out to anyone but they are about 3 or 4 inches in diameter and they are made of cast zinc.
Q:Plate covers for locks?---
A:That’s correct, yes.
Q:But in terms of what were you actually physically doing, how long were you polishing for, where were you polishing and with what consistency?---
A:I had been doing it for at least a week at that point.
Q:I’m now on 3 December, Friday, 3 December, you arrived at work at what time?---
A:Approximately 7.30.
Q:You left at what time?---
A:Worked through till 4.
QWhat polishing work did you do in between those times?---
A:I did consistent polishing of escutcheons for almost the entire day with the exception of about an hour during which I was on the plating line.
Q:So is that about seven hours, or not?---
A:Yes.
Q:And was your job rotated off at any time?---
A:No, I wasn’t.
Q:What were your breaks during that period?---
A:I had a 15 minute smoko break and half hour lunch break.
Q:How did your back feel at the end of that day’s work?---
A:It was significantly uncomfortable.
Q:What do you mean by that?---
A:I had some pain in my leg and pain in my lower back.
Q:And did you manage to get home without incident on that occasion on that Friday?---
A:On that particular occasion I got off the train at Moorabin station because I had gotten on to a train that didn’t stop at Hyatt and I stopped at a number of bus stops and sat down on the way home. On the Friday.”
HIS HONOUR:
Q: “From Moorab[b]in?---
A:Yes.
Q:You got off the train at Moorabin?---
A:Not Moorab[b]in, sorry, Cheltenham.
Q:You got off the train at Cheltenham, is that when you sat down?---
A:Yes.
Q:Did you embark upon walking home?---
A:Yes, the distance from Cheltenham station to my home and from Hyatt station to my home is roughly the same, slightly longer walk from Cheltenham than Hyatt.
Q:How long approximately?---
A:About 20, to 25 minutes from Cheltenham station and 15, 20 minutes from Hyatt.
Q:You say on the Friday you were walking the 20, 25 minutes you stopped and sat down?---
A:A number of times.
Q:What about the night before?---
A:I was able to walk home the night before, I was experiencing pain but not to the extent that it was preventing me being able to walk.”
MRSIMPSON:
Q:“Are you able to say anything further as to why 3 December appears the date at page 170 of the injury being that Friday?---
A:That was when it first got to the point I was unable to continue doing things normally.
Q:And from what precise point is that?---
A:By precise point do you mean - - -
Q:What time of the day or point of the working day was that?---
A:Basically when I was leaving work was when I first really thought gees, this is not good.”[11]
[11]T159, L9 to T162, L30
28 In my view, this passage of the worker’s evidence does not raise an inference that “but for” the polishing work, the plaintiff would not have suffered the injury, loss and damage that ensued from 4 December 2004. Rather, it suggests that the stumbling incident initiated a back injury which steadily got worse over an uncertain period of time before 4 December. To implicate the polishing work during the ensuing period would ordinarily carry with it evidence that the polishing work made the pain worse, perhaps on a daily basis and after symptomatic relief at the end of the working day, the worker would have been able to return to work the following day but with increasing pain on account of the polishing work. This type of evidence is significantly missing in this case.
29 Further, even if the “but for” test was not necessarily applicable, but a test more in keeping with March v E & MH Stramare Pty Ltd,[12] being a commonsense test, this evidence, in my view, does not establish that the polishing work was a cause of the injury, loss and damage.
[12](1991) 171 CLR 506
The medical evidence
30 The plaintiff tendered in evidence the opinions of thirteen medical practitioners who comment on the worker’s physical condition, two psychiatrists, who relevantly provided histories of injury, and two physiotherapists. The opinions advanced by the medical examiners varied in terms of the various combinations and permutations of histories they had been given and which aligned in various ways with the amendments to the pleadings already referred to. Of these practitioners, only three had a history of the stumble on the hose initiating symptoms. These practitioners were Associate Professor Richard Bittar, neurosurgeon, in a report dated 5 January 2011 (exhibit EE); Dr Vanessa Lee, in a report dated 3 August 2011 (exhibit HH), and Mr Michael J Dooley, orthopaedic surgeon, in a report dated 17 June 2011 (exhibit JJ).
31 Of the remaining ten medical practitioners, two physiotherapists and two psychiatrists, there was no history given of the initiating incident, such that I find I am unable to rely on their opinions as to the inter-relationship between the polishing work and the discal injury suffered by the worker.
32 Professor Bittar took the following history:
“[The worker] injured himself in early December, 2004, whilst working as a metalworker for a labour hire company, ESP Tecforce Pty Ltd. He was working on a gantry when he stumbled over a hose lying on the ground. This jarred his lower back and he experienced discomfort in that region. His lower back pain progressively deteriorated over the following two weeks, during which time he engaged in fairly heavy physical work.
He awoke one morning essentially unable to mobilise. He returned to work after four days, initially on light duties; however his condition deteriorated in January 2005 and his work capacity also declined. He has not worked as a metalworker since April 2005.”[13]
[13]Exhibit EE, PCB 249 and 250
33 Further, under the heading “Occupational History”, he stated:
“[The worker] has been working as a metalworker since the age of 18. He had been working for ESP Tecforce Pty Ltd for approximately four months prior to his injury. His work was of a heavy physical nature.”[14]
[14]Exhibit EE, PCB 251
34 Further, he recites:
“CAUSATION:
In my opinion, his employment has been a significant but contributing factor. In particular, the injury which occurred at work in December 2004 has been a significant contributing factor.”[15]
[15]Exhibit EE, PCB 251
35 In my view “the injury which occurred at work in December 2004” is the injury referred to when he stumbled over a hose lying on the ground. Plaintiff’s counsel submits that the “employment” has also been a significant contributing factor; that is, the work being of a “heavy physical nature” as cited. Accepting that this is Professor Bittar’s opinion, he does not descend to details about the “fairly heavy physical work”. In particular, he does not single out the polishing work and whether or not that activity, by itself, was productive of symptoms at any particular time. In any event, I do not distil from his opinion that “but for the polishing work the plaintiff would have suffered the same injury, loss and damage” or any other injury, loss and damage.
36 A Dr Vanessa Lee reported to the worker’s solicitors on 3 August 2011. (exhibit HH) She took the following relevant history:
“[The worker] tells me he has had low back pain since December 2004. He tells me that he stumbled on a piece of hose at work. He tells me that he felt a twinge in his back at the time. The pain then worsened over 4-5 weeks. He tells me he has had chronic pain since then with fluctuations in the severity and several exacerbations a year.”[16]
[16]Exhibit EE, PCB 264
37 The remainder of her report concerns itself mainly with the worker’s psychological state.
38 The worker was also examined by Mr Michael J Dooley, orthopaedic surgeon, on or about 17 June 2011 (exhibit JJ). He took the following relevant history:
“[The worker] said that in August 2004, he was working on a production plating line. He said that he would have to stoop a lot in his work. He said that on one occasion he stepped on a hose and that it moved under foot. He felt a twinge in his lower back. He said that this pain increased over the next few weeks. One morning he awoke with acute low back pain and right sided sciatica. His symptoms worsened gradually in time. He had difficulty working and could not work beyond early 2005.”[17]
[17]Exhibit EE, PCB 268
39 Further, under a heading: “Diagnosis, Clinical Impression & Opinion”, he gave the following opinion:
“[The worker] suffers from degenerative disc disease of the low lumbar spine affecting mainly the lumbosacral level. Degenerative disc disease is naturally occurring. I believe that in the work related episode in which [the worker] jarred and twisted his back resulted in a disc prolapse occurring on the right side at lumbo-sacral level on the background of a degenerative disc disease. As is usually the case with a lumbar disc prolapse, the sciatica pain did improve with time. A disc prolapse does involve some aggravation of the underlying degenerative disc disease and therefore patients do report ongoing intermittent low back pain. … .”[18]
[18]Exhibit EE, PCB 269
40 There is no attempt to implicate the polishing work in the aetiology of the disc prolapse or the degenerative disc disease.
Conclusions
41 As already mentioned, only three medical examiners of the thirteen whose opinions were tendered in evidence refer to the stumbling on the hose incident. The pleadings in this matter were amended at various stages to reflect the diverse histories given by the worker. Only three medical examiners took histories which, in my view, aligned with the worker’s evidence as outlined above.
42 Only Professor Bittar refers to two significant contributing factors being responsible for the discal injury, being the stumbling incident and the heavy nature of the work. The other two medical examiners who have the history of the stumbling incident do not implicate the polishing work in the aetiology.
43 Professor Bittar, nor any other medical practitioner, has been asked to consider whether, but for the polishing work, the worker may not have suffered the injury, loss and damage.
44 Even if a March v Stramare[19] test is deemed to be appropriate, the state of the medical evidence does not lead me to the conclusion that the plaintiff has discharged the onus of proof that the polishing work was a cause of the injury, loss and damage that became apparent from 4 December 2004.
[19]Supra
45 Accordingly, the application will be dismissed and I will hear the parties as to any consequential orders.
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