VWA v Lindsay Australia Ltd
[2016] VSC 196
•29 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 04666
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| LINDSAY AUSTRALIA LTD (ACN 061 642 733) | Defendant |
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JUDGE: | BONGIORNO JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8–11 March 2016 |
DATE OF JUDGMENT: | 29 April 2016 |
CASE MAY BE CITED AS: | VWA v Lindsay Australia Ltd |
MEDIUM NEUTRAL CITATION: | [2016] VSC 196 |
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NEGLIGENCE – Alleged work injury – Compensation paid – Indemnity sought – Common law – No point of principle – Accident Compensation Act 1985 s 138.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Hamilton | IDP Lawyers |
| For the Defendant | Mr J Brett QC with Mr M Hooper | HWL Ebsworth Lawyers |
HIS HONOUR:
By a writ filed on 19 February 2014 the Victorian WorkCover Authority (‘VWA’) sued a trucking company, Lindsay Australia Ltd (‘Lindsay’) seeking an indemnity pursuant to s 138 of the Accident Compensation Act 1985. The indemnity sought is in respect of compensation and expenses which VWA has paid or may be called upon to pay in respect of injuries allegedly suffered in the course of his employment by a truck driver, one George Pavlis (‘the worker’). To entitle it to such an indemnity, VWA must establish that the worker’s injury was caused under circumstances which would have created a liability in Lindsay.
VWA’s statement of claim alleged that the worker’s injuries were received ‘… throughout the course of his employment and, in particular, on or about 15 April 2010 whilst he was driving the defendant’s truck on the Hume Highway between Melbourne and Holbrook’. Those injuries were described in an amended statement of claim[1] appended to the writ in the following terms:
[1]The only amendments apparent in the amended statement of claim concern the name of the defendant which was changed to Lindsay Transport Pty Ltd and a money sum for compensation already paid by VWA was changed from $88 836 to $100 463.
PARTICULARS OF INJURY
(a)Aggravation of multilevel degenerative changes to the lumbar spine and facet joint arthritis;
(b)Mild disc dessication at the L5/S1 level and moderately severe degenerative facet joint changes at L5/Si;
(c)Developed Chronic Pain Syndrome associated with chronic lower back pain;
(d) Psychological sequelae including depression.
The amended statement of claim alleged that the worker’s injuries were caused by the negligence of the defendant, particularised in common form. Although those particulars accuse the defendant of various acts or omissions constituting breaches of its duty of care which caused injury to the worker’s low back, the only case advanced in this Court was that the worker was required to drive a particular truck, referred to as Truck 69, with a defective seat, such that it aggravated a pre-existing back injury from which he suffered.
In its amended defence filed 2 July 2015,[2] Lindsay denied the allegations of negligence, denied that the worker was injured as alleged, admitted that VWA had paid statutory compensation benefits to him or on his behalf and denied that it was entitled to the indemnity sought. In the alternative, it alleged that if VWA were entitled to an indemnity then the quantum of that indemnity must be calculated pursuant to s 138(3)(b) of the Act. The defendant also raised defences alleging contributory negligence against the worker and correlative negligence against APS Group Transport (‘APS’), the worker’s actual employer.
[2]On this document the name Lindsay Transport Pty Ltd appears as the name of the defendant in the heading but the document itself alleges that Lindsay Brothers Plant and Equipment Pty Ltd owned the relevant truck. Having regard to the manner in which the trial of this matter was conducted this discrepancy appeared to have been of no moment. ‘Lindsay’ was regarded by both counsel as being the owner of the relevant truck.
The evidence
In the course of the trial of this proceeding it became apparent that a large number of documents provided to the Court by each of the parties separately (about 1500 pages in total) were duplicates of each other and many of them were of doubtful or no relevance to the issues to be litigated. Accordingly, by agreement between counsel, a joint book of documents was created and tendered jointly. It is only those documents, the oral evidence given in court and a further five exhibits tendered separately which constitute the evidence upon which this case is to be decided.
The plaintiff’s case
To establish its entitlement to the indemnity it seeks the plaintiff must prove fault in the defendant, which fault was a cause of the injury allegedly suffered by the worker in the course of his employment and for which the plaintiff has paid or may be required to pay compensation and expenses. In this instance the plaintiff relies upon negligence as the fault element which, it alleges, was the cause of the worker’s injury.
The worker, a now 53 year old long time truck driver, was employed as such by APS in about July 2008 after many years driving for other employers. After undergoing an induction process he was sent by APS, in its capacity as a labour hire company, to work for the trucking company Linfox. Whilst working for Linfox the worker drove large trucks between Melbourne and South Australia, including as far as Adelaide.
In October 2009 the worker had about two weeks off work with an upper back injury. He saw a GP who ordered a CT scan which revealed arthritis in his back. At the end of this period, when he was declared fit for duty, he returned to work, not for Linfox, who, he said, no longer wanted him, but for Lindsay. In this position the worker drove loaded B-Double semi-trailers from Laverton to Holbrook or nearby towns on the Hume Highway. Upon reaching his destination he would exchange his loaded trailer for a similar trailer, also loaded, brought to the meeting point by a driver from Sydney. He would then return to Laverton. The round trip took about 10 hours, usually commencing in the afternoon and concluding in the early hours of the following day.
Although, in the course of his work for Lindsay, the worker drove a number of different trucks, VWA’s claim in this case was that only one truck was the source of the worker’s alleged injuries. It was referred to throughout the trial as Truck 69. VWA alleged that the worker suffered an aggravation of a pre-existing low back injury by being required to drive Truck 69 when it had a faulty driver’s seat which ‘bottomed out’ when it was being driven on an uneven road surface. Contrary to the worker’s oral evidence and histories he gave various medical practitioners, Lindsay’s records, which were not disputed, showed conclusively that the worker drove Truck 69 on only five round trips between December 2009 and April 2010. Those five trips commenced on 11 and 29 December 2009, 26 March, and 16 and 19 April 2010 respectively.
In his evidence the worker said that in July 2008, when he commenced working for Linfox at the direction of APS, his back was ‘good’, although he described going to a doctor, Dr Hiluf Gebrehiwot, on 21 September 2009 for back pain which he described as ‘just a slight little twinge’. He said he had no pain or pins and needles in his legs. On that occasion, he gave the doctor a history of about 12 months of pain which he also described in his evidence as a ‘slight little twinge’. He said that in December 2009 his back was ‘no better than normal’. It was still causing him some problems and he said that he was ultimately diagnosed as having a ‘pulled muscle’.
The worker described his work with Lindsay as involving driving different trucks from Laverton to Tarcutta via the Hume Highway and return—about a five hour drive in each direction.[3] He said that he had trouble with a couple of trucks which he was given to drive because the seat ‘dipped down to the left’. He described Truck 69 as ‘bottoming out’—by which he meant that the seat travelled up and down in a vertical plane, striking the floor or some other object when it reached the bottom of its travel. He described an air pump as being connected to the seat.
[3]A record of the worker’s driving between 2 November 2009 and 21 April 2010, agreed as being accurate, showed that he drove between Laverton and several different towns in NSW on the Hume Highway, including Tarcutta.
The worker described his back as being ‘reasonable’ when he first drove Truck 69 in December 2009. Between then and March he said his back was ‘slowly getting worse’ although he did not drive Truck 69 again until 26 March. He said that on 16 April 2010 he told ‘Gavin’ (an otherwise unidentified employee of Lindsay) that he didn’t want to drive this truck because it was ‘killing my back’. He said Gavin replied that he would ‘look into it’ but nothing was done. He said that the next time he was asked to drive this truck he refused and was given a replacement—a ‘Louisville’. Lindsay’s records showed that he drove Truck 69, for the last time, on 19 April.
The worker said that after refusing to drive Truck 69 and after one trip driving the Louisville (with which he claimed to have no problem in his back) he was retrenched. He said he returned to his doctor, who gave him steroid injections and referred him to a neurosurgeon, Mr James King. He said that Mr King told him that his back was ‘stuffed’ but that Mr King would not operate because of his (the worker’s) weight. In fact, Dr Gebrehiwot’s records reveal that the steroid injections he received were administered on 5 November and 8 December of the previous year, before he had ever driven Truck 69. They were prescribed by Dr Gebrehiwot, not by Mr King (who was not called as a witness); Mr King first saw the worker in about August 2010, some months after he ceased working for Lindsay. A report by Mr King dated 5 August 2010 records the worker’s back pain as having been present, variously, for ‘two years’ or ‘a number of years’. This report made no mention of the cause of the worker’s back pain. In particular, it made no mention of any problem caused by a truck or truck seat.
The worker never returned to work. In November 2011 he attended Sunshine Hospital with back pain. He said his back at this point was ‘really bad’. He said he saw another neurosurgeon in about March 2012 and was also diagnosed with oedema in his legs.
Throughout his evidence the worker maintained that he had had no trouble with his back prior to driving Truck 69. However he conceded, a number of times, that he had ‘a slight twinge’, ‘a slight little twinge’ or made similar concessions which seemed to be directed to establishing that there was really nothing wrong with him before he commenced to drive Truck 69.
These assertions must be regarded as disingenuous. Dr Gebrehiwot’s records note, in a number of places, complaints by the worker concerning lower back pain prior to his having ever driven Truck 69. On 21 September 2009, Dr Gebrehiwot has noted: ‘Lower back pain worse in last 12 months’. On 30 October 2009, when the worker again returned to Dr Gebrehiwot’s surgery, his back pain was recorded as being ‘severe’ and as sufficient to warrant the first CT-directed facet joint injection already referred to. Dr Gebrehiwot’s reports, which were in evidence, contain similar observations.
On 14 December 2009, three days after he first drove Truck 69, the worker again attended Dr Gebrehiwot whose note of that consultation records ‘lower back pain with left radiculopathy for long time’ (emphasis added). The doctor’s note does not attribute that finding to the worker’s truck driving activities. There are, in evidence, a number of letters written by Dr Gebrehiwot concerning the worker’s back. None of them refers to a faulty seat in Truck 69 as being causative of the worker’s back problems. Further, Dr Gebrehiwot did not, in his evidence, suggest that the causation of the worker’s back troubles was his driving of Truck 69.
On 24 June 2011, Dr Gebrehiwot completed a medical practitioner’s questionnaire in support of a Worksafe claim for which the worker first consulted him on 21 September 2009; almost three months before he first drove Truck 69. The doctor described the patient’s then current history in the questionnaire as:
Lower back pain, radiate (sic) to buttocks and legs.
He also noted, in giving an affirmative answer to a question as to whether the patient had previously had the same medical condition, as follows:
On day of his first consultation he mentioned his back pain being going on for a few years but worse in the last 12 months before consultation.
In answer to a question as to what caused the injury the doctor recorded:
·Repetitive Bending
·Sitting on faulty seat in trucks.
When asked, in evidence, as to where he got the history he recorded in that document, Dr Gebrehiwot said ‘yeah, from the patient’.
This document is significant, having regard to the probable date of its creation, the date on which the worker first attended Dr Gebrehiwot for back pain, the history he gave at that time and the date upon which he first drove Truck 69. It was dated (presumably by Dr Gebrehiwot) 24 June 2011 but is concerned with the worker’s first attendance on Dr Gebrehiwot for the complaint described, on 21 September 2009. Whatever the phrase ‘faulty seat in trucks’ refers to, it cannot refer to the worker’s driving of Truck 69. He did not drive Truck 69 until 11 December 2009—almost three months after his September attendance on Dr Gebrehiwot.
Dr Gebrehiwot also wrote a letter on 8 February 2012 to the Accident Compensation and Conciliation Service containing an extensive description of the worker’s back problems from his first presentation in September 2009 to the date of that letter. It is significant that no reference is made in that letter to the incidents concerning a faulty seat on Truck 69. The doctor’s opinion as to the cause of the worker’s back problems is expressed in the following sentence in the last paragraph of this letter:
In summery (sic), George suffers from chronic lower back pain which I belive (sic) is contributed by his long time driving a truck and that predispose him to minor and repetitive injury of the lower back joint and resulted in degenerative change and arthritis on the joints.
Apart from the reference to the questionnaire already referred to, the first reference by Dr Gebrehiwot to the faulty seat on Truck 69 as being possibly a contributing factor to the worker’s back problems appears to be in a letter of 17 July 2013 to the worker’s solicitors in answer to two letters from those solicitors which are not before the Court. After describing his treatment of the worker for low back pain from 21 September 2009 onwards, Dr Gebrehiwot concludes:
On your letter you state that your client was driving trucks at different Transport company and you also stated that he was driving a truck with Registration number 69-LAL which has a faulty seat. As I mentioned on the previous paragraph George suffers from degenerative change on his back joints and any fault (sic) seat on a truck driving for long hours can aggravate his condition.
Without the solicitor’s letter it is impossible to adequately interpret and evaluate the doctor’s letter. The history recorded in the solicitor’s letter may not have been any more accurate as to the worker’s driving of Truck 69 than the worker’s own evidence was in this Court.
The worker was seen by a number of other medical practitioners concerning his back and a number of other diverse medical problems: hernia, hypertension, morbid obesity, obstructive pulmonary disease and others. He was also examined, as might be expected, for medico-legal purposes.
The plaintiff tendered three reports written by Dr Peter Andrianakis dated 24 November 2012, 18 July 2013 and 14 February 2015. Dr Andrianakis was not called as a witness. In the first of his reports Dr Andrianakis noted that the worker told him that he was a truck driver and was required to drive a truck ‘many hours a day’ with a faulty seat which other drivers had refused to drive. On this sparse account, written three years after the worker first drove Truck 69 and many years after he commenced truck driving, Dr Andrianakis concluded that the worker’s back problems which he described ‘would be consistent with the trauma of a faulty seat on a truck travelling on uneven road’.
In his second report, Dr Andrianakis said that the worker ‘… complained of back pain and a faulty seat in April 2010’. He then repeated the statement he had made in the earlier letter as to the faulty seat and an uneven road being consistent with ‘the injury’. He concluded his report with the following paragraph:
In answer to the question asked, I believe that from the history given and the assessment made that they are consistent and on the balance of probabilities was caused by a faulty seat in a truck he was required to drive, as he has described.
There is no evidence before the Court as to what question was asked by the worker’s solicitor to elicit this opinion, nor was there any evidence as to Dr Andrianakis’s knowledge of the facts of this case. Most importantly, there is no evidence as to the history he obtained from the worker as to when he first experienced problems with his back. In the circumstances, his opinion carries no evidentiary weight.
A report from Western Health, dated 10 October 2015 and written by Professor Ian Brand from the records of that health service, notes that the worker was seen on 14 and 24 April 2010 in the Cardiology Clinic of that service; on 8 September 2010, in the Surgical Outpatient Clinic; and was first seen in the Neurosurgery Outpatient Clinic on 2 August 2011. Although this report runs to over three pages, apart from noting that the worker was a 50 year old former truck driver with a number of co-morbidities who presented with worsening low back pain, it says nothing as to the aetiology of his back problems other than an event of worsening pain in November 2011 occurred ‘… whilst he was vacuuming’. Professor Brand concluded by stating that from the medical record he could not see what the stated cause was said to be so that he could not say whether the condition was work related or whether the worker’s employment was a contributing factor.
The plaintiff’s case, initially at least, relied heavily on the opinion of Mr David Brownbill, a neurosurgeon, who provided medico-legal reports for the worker’s solicitors dated 6 November 2012 and 8 October 2015. In the first of those reports he included the following as part of the history he obtained, either from the worker himself or from a letter from the worker’s solicitor of 17 August 2012 which his report referred to but which was not before the Court:
MEDICAL: He has received treatment for high blood pressure and cholesterol and has emphysema and heart problems. He had not sustained any past injuries. Specifically there had not been any past back injury or pain. He had not taken any time off or received medical treatment for his back. …. (emphasis added)
Once again the instructions contained in the solicitor’s letter are not before the Court although, from Mr Brownbill’s reports and his oral evidence, it is clear the instructions he received were, at best, inaccurate and, at worst, positively misleading.
In expressing his opinion in the report, Mr Brownbill made it clear that he formed that opinion in the belief that the worker had not experienced any symptoms of injury to his back before he drove Truck 69. He referred to the worker as having an asymptomatic facet joint before driving a truck on a seat which ‘bottomed out’.
Mr Brownbill recorded the circumstances of the worker’s alleged injury as follows:
About three years ago he was required to drive a particular truck that had a faulty seat. ‘It was always bottoming out on the bumps’. He was required to drive about three times a week on 12 hour shifts ‘and I always felt it jolting up my back when it bottomed out’. He continued with this activity for about three weeks. From the first time and then every time he drove that truck with the jolting, there was associated low back pain. The pain then progressively increased the more he drove the truck. There was no particular accident or injury but the pain gradually increased over the time. There was no radiation of pain to the legs at first …
After reviewing the worker’s treatment and progress, the results of his examination of the worker, undisclosed documentation enclosed in the solicitor’s letter of referral and reports of Mr James King, Mr Brownbill provided the following answers to questions apparently asked by the worker’s solicitors (which questions were not before the Court):
A/. I have outlined the provided history above and referred to the provided documentation including radiological investigation results and to the examination findings of 31 October 2012.
B/. I consider aggravation of pre-existing asymptomatic lumbar spinal facet joint degeneration is consistent with occurring as a result of repeated axial forces applied to the lumbar spine with the repeated ‘bottoming out’ of a truck seat.
C/. I consider he has sustained aggravation of pre-existing asymptomatic L5/S1 spine facet joint degeneration giving rise to pain.
D/. He is not fit for his full pre-injury employment.
In expressing these conclusions, Mr Brownbill had clearly accepted that the worker had been asymptomatic before driving Truck 69 and that he had driven Truck 69 three times a week on 12 hour shifts for about three weeks before ceasing.
But the evidence was otherwise. Dr Gebrehiwot gave evidence, supported by his observations and his notes, which was not challenged, that the worker had a two year history of back pain with left radiculopathy before he drove Truck 69 and that he had had ineffective intervention by injection for this complaint. Further, it was conceded by the plaintiff (as it had to be) that the worker had driven Truck 69 on only five occasions in total, spread over five months.
In cross-examination, Mr Brownbill agreed that if the worker’s back had not been asymptomatic, as he believed it was, it was impossible to say that the incidents with the truck seat had any effect on the worker’s back. Viewing the evidence of Mr Brownbill overall, that is the only conclusion that can be reached as to the cause of any ongoing aggravation of his back condition.
Dr Michael Baynes, an occupational physician, was called by the plaintiff. He had examined the worker on 7 June 2011 and wrote two reports which were tendered. The history he obtained from the worker included that which the worker had given to other doctors already referred to, namely, that he had not had any back pain up until late 2009. Dr Baynes was also given a detailed description of the worker’s driving of Truck 69 and its effect on his back. His conclusion, that the worker’s employment was the cause of his problems, was inevitable. But, importantly, that conclusion was dependent, in his own words, upon his ‘taking history as fact’; the history being that the worker had no similar symptoms prior to late 2009.
In cross-examination, Dr Baynes conceded that upon a consideration of the worker’s true history of his back pain, namely that observed and recorded by Dr Gebrehiwot, it was ‘highly unlikely’ that there was any relationship between the worker’s injury and his driving of the relevant truck.
The worker gave evidence and was cross-examined as to the truth of the history he had given to Mr Brownbill in October 2012 concerning his back and his driving of Truck 69. With respect to his back condition, his evidence was far from congruent with that of Dr Gebrehiwot. Whereas Dr Gebrehiwot recorded the worker’s complaint of 21 September 2009 as back pain going on for a long time and worse in the immediately preceding 12 months, the worker described the pain as ‘just a slight little twinge’. He rejected Dr Gebrehiwot’s use of the word ‘severe’ with respect to back pain he reported to the doctor on 30 October. He subsequently insisted that the condition for which he had received injections in November and December was also ‘a slight little twinge’. In the course of cross-examination, the worker became petulant and attempted to leave the witness box. He said he was ‘fed up’. In answering questions, he retreated to a position of no recollection or attempted to avoid direct answers to the cross-examiner’s questions. He used the expression ‘minor twinge’ and similar expressions when describing the situation of his lumbar spine prior to driving Truck 69, whilst the largely unchallenged evidence was, as already noted, almost directly to the opposite effect.
The worker was an unsatisfactory witness upon whose evidence no reliance can be placed. His demeanour, his attitude to the case and his clear inability or unwillingness to tell the truth all lead inexorably to the rejection of his evidence concerning his back problems and their aetiology.
In order to establish liability in the defendants to indemnify the plaintiff, pursuant to the relevant statute, it was necessary for the plaintiff to establish, on the balance of probabilities, that a pre-existing injury to the worker’s back had been aggravated by his being required to drive Truck 69 as alleged in its Statement of claim. I am not so satisfied. I do not accept the worker’s evidence as being accurate or truthful.
The plaintiff has failed to establish a necessary element of its claim to an indemnity. There will be judgment for the defendant.
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