Wilkinson, Trevor v Gathercole

[2009] VCC 1456

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-07-04518

TREVOR WILKINSON	Plaintiff
v
G & B GATHERCOLE (VIC) PTY LTD	First Defendant
and
G A GATHERCOLE PTY LTD	Second Defendant
and
GRAEME ARTHUR GATHERCOLE	Third Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	4 and 5 June 2009
DATE OF JUDGMENT:	7 September 2009
CASE MAY BE CITED AS:	Wilkinson, Trevor v Gathercole
MEDIUM NEUTRAL CITATION:	[2009] VCC 1456

REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – serious injury application – sections 135A and 135C Accident Compensation Act (Vic) 1985 – identification of injury during relevant period – injury to the lumbar spine and right knee – timing of plaintiff’s knowledge of severity of incapacity – assessment of plaintiff’s subjective knowledge.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Collis QC and	Melbourne Injury Lawyers Pty Ltd
Mr A Ingram
For the First Defendant	Ms M Britbart	Herbert Geer
For the Second Defendant	Mr T Ryan	Thomas Playford Cutlers
For the Third Defendant	Mr J Batten	Lander and Rogers
HER HONOUR:

Preliminary

1          It is alleged the plaintiff suffered injury to his lumbar spine and right knee in the course of his employment with the defendants between August 1985 and 12 November 1997 (“the relevant period”) as a result of carrying out heavy manual work as a meat lumper.

2 The plaintiff seeks leave, pursuant to s.135A(4)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings at common law against the defendants.

3          The body function said to be lost or impaired is the lumbar spine and the right knee.

4 It is in issue between the parties that the plaintiff has sustained a “serious injury” within the meaning of s.135A(19) of the Act.

5 Pursuant to s.135AC(a) of the Act, any application for determination pursuant to s.135A(2B) must be issued before 1 September 2000. The plaintiff’s application was not issued until 25 June 2007 and is therefore, prima facie, out of time, and he is precluded from bringing proceedings. However, pursuant to s.135AC(b):

“If the cause of action arose before 12 November 1997, and the incapacity arising from injury was not known until after 12 November 1997 … .”

The plaintiff may bring his application providing he does so:

“… before the expiration of three years after the date the incapacity

became known.”

6          Thus, the plaintiff must prove, the onus being upon him, that prior to 25 June 2004 (“the said date”), he was not aware of the serious injury consequences of the injury to his back or right knee arising from his pre November 1997 employment.

7          The plaintiff swore three affidavits. He was cross examined. The plaintiff’s general practitioner, Dr Barr, was required for cross examination. All parties relied upon medical reports and other evidence. I have read all the tendered material.

The Plaintiff’s Evidence

8          The plaintiff is presently aged fifty eight, having been born on 19 July 1951. He was educated to Year 10. Since leaving school the plaintiff has worked in a variety of jobs, predominantly as a meat lumper. Initially he worked with his father as a carpenter. He then obtained work as a trainee manager at Woolworths for about four years and then worked at Coles Supermarket on night fill for two years.

9          At about that time, the plaintiff obtained a Heavy Rigid Truck Licence and began driving for McCorkells, working as a delivery driver delivering meats to butchers and supermarkets. He worked for McCorkells for about twelve years.

10        The plaintiff drove buses for Ventura Bus Lines for about two years, but was not so employed between 1991 and 1993, as he previously stated in a statement made in 1995.

11        Prior to commencing work with the third defendant in about 1982, the plaintiff had not suffered any injury to his back or right knee.

12        The plaintiff was employed as a meat lumper during the relevant period. Initially he worked for the third defendant, Graeme Gathercole, trading as Carrum Meats. The plaintiff agreed he worked for the defendants until he injured his shoulder in October 1999. He then worked on light duties until he ceased work with the second defendant in January 2000.

13        In examination in chief, the plaintiff said that he did not work for the defendants between April or June 2003 and April 2005 and he thought during that period he worked for Moores for about six months.

14        In cross examination, the plaintiff was unsure of the various dates he worked for the defendants early in the relevant period. He agreed it was possible that there were various breaks in his employment during the period. He agreed he worked from April 1990 until June 1993 and then had a break until about 2005. He confirmed he worked with Moores in the period between June 1993 and April 1995. He then returned to work at Gathercoles until he injured his shoulder in 1999.

15        Later in cross examination, the plaintiff said that he was actually working for Gathercoles in 1989 and 1993 when he injured his knee. The plaintiff’s answers to further questions in this regard were confused.

16        The work the plaintiff performed during the relevant period whilst employed by the defendants was extremely heavy manual work involving unloading carcasses from the back of a truck and taking them into butchers’ shops. An added complication was that frequently the surfaces upon which the plaintiff was required to work were slippery and also, if the trucks were particularly full, he had to stand on the edge of the truck to begin unloading. On a number of occasions the plaintiff had falls.

17        The plaintiff agreed that he could do this work throughout the whole of the relevant period until he injured his shoulder in 1999. He was not restricted in his work capacity before his shoulder injury. It was only his shoulder injury that stopped him working.

18        The plaintiff deposed that after his solicitors had obtained relevant documents, he understood he had had a number of incidents at work, namely:

3 March 1987:	strained chest as a result of lifting carcasses.
27 January 1989:	crushed finger whilst unloading meat.
16 May 1989:	knee pain after exercising (which he believed related to moving on the truck) with a notation of mild osteoarthritis and some past football injuries.
25 August 1990:	injured back whilst lifting hindquarters of beef.
19 December 1990:	injured neck whilst unloading forequarters of lamb.
1 July 1991:	injured back when fell from truck whilst lifting hindquarter of beef.
6 August 1991:	injured right knee and back when fell from meat truck.
5 October 1992:	injured back whilst lifting quarters of beef which were double hung.
20 October 1992:	hit side of truck, sustaining injuries to left shoulder and lower back.
8 December 1993:	work causing gradual swelling, stiffness and pain in my right knee.
3 October 1995:	lifting heavy carcasses causing chest pain.

19        The plaintiff was cross examined in relation to a number of inconsistencies as to his version of the above incidents and contemporaneous documentation relating to these events.

20        The plaintiff agreed there was an injury register (“the register”) at Gathercoles and that he would report more serious injuries.

21        The plaintiff was cross examined as to affidavit evidence relating to the 20 October 1992 incident. The injury register set out, “Hit side of door in back of truck injuring his shoulder, still working”. The plaintiff agreed in cross examination that he had not reported injuring his back in this incident.

22        On 16 May 1989, the notes of the Cranbourne Road Clinic (“the Clinic”) recorded:

“Complained of pain and stiffness both knees after exercise - past history of knee injuries= football. No locking/giving way. Mild OA both knees- Naprosyn - advice lose weight.”

23        The plaintiff described this entry in his affidavit as “knee pain after exercising” (which he believed related to moving on the truck) with a notation of “mild osteoarthritis and some past football injuries”.

24        In cross examination, the plaintiff said he had played cricket until the late 1980s and he stopped playing football in the 1970s.

25        In cross examination, the plaintiff could not remember what he did in the May 1989 incident. He said he did not know what was meant by “exercising,” but said he was probably walking up and down the steps in the trucks. He then said “that’s not exercising - that’s doing what [he] had to do”. He said he did not go to the Clinic with knee problems. He regularly saw Dr McCormack at the Clinic. This injury was not suffered playing football but he would probably have a niggling little pain playing cricket. The plaintiff could not say for certain whether this injury happened at work. He could not recall hurting his knee at later times playing cricket.

26        On 6 August 1991, the injury register set out, “Trevor Wilkinson - fell out of back of truck and injured leg very sore, continued to work”.

27        The plaintiff deposed that on this date he injured his right knee and back when he fell from a meat truck. In cross examination, he said he did not remember the incident but he knew he fell out of a meat truck. After that, his back and knee hurt for quite a while. That was when the niggling pains started in his knee – he just had to keep working – he had to just keep going.

28        The plaintiff then said he could not recall when his knee pain first started. It started getting really bad after he had a fall from a truck but he had to put up with it and keep working and he did not go to the doctor.

29        The note of the Clinic dated 8 December 1993 set out:

“2/7 weeks gradual swelling of right knee and stiffness and pain. ROM 0-

90 degrees. Mild effusion. Crepitus laterally, legs stable., OA ?”

30        The plaintiff described this entry in his affidavit as “work causing gradual swelling, stiffness and pain in my right knee”.

31        In cross examination, the plaintiff was not quite sure he had knee pain in December 1993. He could not remember going to the doctor but said he did if that was what the note said. When asked what work he was doing to bring knee pain on, he said he was meat lumping. He was not working at Gathercoles; he was working at Moores.

32        He then said he was working at Gathercoles at the time of the 1989 and 1993 entries. When cross examined by counsel for the second defendant, the plaintiff’s answer was confused. He later said he worked at Moores once and for only six months, but he could not remember the dates.

33        From 1995 to 1999, the plaintiff did normal duties at work. He did not complain at work of knee pain, nor did he go to a doctor for treatment in relation to his knee.

34        When he saw medico-legal examiners between 1995 and 2003, the plaintiff did not mention problems with his right knee. The plaintiff saw Dr Clareborough in 1995 about a chest complaint. He saw Mr McNicol Smith in 2000 about his shoulder. He did not mention his back or knee to either doctor as he explained he was seeing them for his shoulder. He was having knee pain but he was not bad enough to go to the doctor until later on. He did not mention his knee to them as it was not worrying him. Nor did the plaintiff mention the knee problems he was having in his statement relating to a chest injury at work in 1995.

35        On 1 October 1999, the plaintiff injured his left shoulder whilst lifting meat at work. He aggravated this injury on 13 December 1999, when he tore the ligaments in his shoulder, and also his biceps.

36        The plaintiff first saw Dr Barr in October 1999 after he injured his left shoulder. The plaintiff could not recall when he first told Dr Barr of his back or knee problems.

37        In cross examination, the plaintiff then said he first complained to Dr Barr of back pain a long time before a CT scan was arranged in 2002. At the time of the CT scan the plaintiff really noticed his back “was getting that way”. He just wanted “to know what it was.” He said, “I just – I know it was through work”. At that time his back was getting worse.

38        The plaintiff was referred to orthopaedic surgeon, Mr O’Donnell, who, on 20 January 2000, performed a left shoulder arthroscopy (“the first operation”). During that procedure a rotator cuff tear and a biceps tendon tear were treated arthroscopically by re-section and debridement.

39        As the plaintiff’s symptoms continued after the first operation, Mr O’Donnell undertook open surgery by way of a rotator cuff reconstruction and sub- scapularis tendon transfer on 27 November 2000 (“the second operation”). As the biceps tendon continued to cause the plaintiff trouble, Mr O’Donnell carried out further surgery in which the tendon was tendonesed to the humerus on 22 August 2001 (“the third operation”).

40        The plaintiff deposed that his employment was restricted as a result of his injuries, and that after various periods off work and other periods undertaking light duties, he was forced to cease work by April 2003. His viva voce evidence was that he in fact ceased work in January 2000 after a short period of light duties. He suffered further injury on 17 February 2007, when he injured his right shoulder driving a hire truck.

41        The plaintiff deposed that it was some years subsequent to 12 November 1997 that the full extent of his back and knee conditions came to be exposed. It was only in more recent years that investigations had taken place to ascertain the extent of pathology in his spine.

42        Dr Barr did not refer the plaintiff for CT scanning of his lumbar spine until 21 February 2002. The plaintiff understood that the scan demonstrated a minor left paracentral L4-5 disc bulge which was not neurally compressive, as well as some lumbar facet joint arthropathy.

43        On 10 September 2003, a further CT scan of the lumbar spine was performed, which the plaintiff understood demonstrated disc bulging at the L2-3 level, degenerative changes at the L3-4 facet joint and minor degenerative change, both at that level and also at L3-4 with partial sacralisation of L5.

44        A whole body nuclear scan was conducted on 2 October 2003.

45        The plaintiff deposed that he had had spinal pain, particularly in the lumbar spine, present throughout the 1980s. The pain would come and go and he found on occasion his back would suddenly give way on him and he would suffer radiation of pain into either or both of his legs. He carried on working despite these problems but he believed that the almost constant pain which continued over the years resulted from work performed before 12 November 1997.

46        When the plaintiff stopped work in 2000 his back became cold. A month or two after ceasing work he noticed increasing aching in his lower back. The seriousness of his back and knee problems was confirmed by Dr Ali. His back steadily worsened over the next three years. The plaintiff could not recall seeing Dr Wilk or any other specialist in relation to his back condition in September 2003.

47        In cross examination, the plaintiff agreed that he told medico-legal examiner Dr Clark in August 2003 that he had backache; it was not really stopping him getting around. He agreed her told him there was an inability to do much due to backache and shortness of breath. He was not able to walk very far because of his knee and back. The plaintiff explained that he did not tell Dr Clark of his knee pain at that examination as it was not really aggravating him then.

48        Prior to 12 November 1997, the plaintiff had difficulties with his right knee, particularly through general heavy lifting work which he was required to perform, but also on a number of occasions he had slipped and fallen from vehicles.

49        In 2006, the plaintiff was referred by Dr Ali to Mr Brydon, orthopaedic surgeon, for treatment to his right knee. Mr Brydon initially saw the plaintiff on 7 September 2006. At that stage the plaintiff was suffering reasonably constant right knee pain and was keen to ascertain the cause of his symptoms. The plaintiff understood x-rays demonstrated the presence of degenerative changes.

50        Mr Brydon advised the plaintiff it would be necessary for him to try and lose weight but also to undergo a total knee replacement.

51        When the plaintiff saw Mr Brydon in 2006 it “was the time when he found out his knee was really bad” and Mr Brydon told him he needed an operation.

52        In cross examination, the plaintiff could not recall telling Mr Grossbard that he noticed some swelling in his knee in the early 1990s. The plaintiff could not say for how many years he had had knee pain. He did not know if he had had pain for more or less than two years before 2006.

53        The plaintiff agreed he told Mr Simm in 2006 that his knee pain was severe and that his symptoms were recent and had been troublesome in the last year or two.

54        The plaintiff deposed that a lot of his activities which might have been affected, for example, golf, had already been affected by his left shoulder but he had little doubt that if that shoulder injury had not occurred then his knee and back conditions would ultimately have led to the prevention of his involvement in sport.

55        The plaintiff’s work life was brought to an end by his left shoulder injury. Following his attendance with Mr O’Donnell, the plaintiff was told he should not return to the type of work which he had previously done, and he has not worked since. In cross examination, the plaintiff agreed he stopped work because of his shoulder and that he was not prevented from working because of his knee or back.

56        The plaintiff remains in receipt of weekly payments of compensation for his left shoulder injury.

57        Insofar as pain and suffering is concerned, in relation to the plaintiff’s lower back, the plaintiff deposed that condition was a cause of gradually increasing levels and frequency of pain over a long period which ultimately led him to consult Dr Barr. The treatment that had been recommended to him for his back has been conservative, revolving around the use of Panadeine Forte medication on an ‘as needs’ basis.

58        Despite the fact he has ceased heavy work; his back condition has not improved and, if anything, has probably continued to deteriorate somewhat with time. His back is more painful in the colder weather and if he exerts himself, he tries to place the least strain on his spine that he can in order to limit his pain.

59        The symptoms in his right knee developed with even slower progression than those in his lower back. It was not until 2006 that the plaintiff reached a point where it was necessary for him to receive medical treatment for that condition.

60        On 12 March 2008, Mr Brydon performed a total knee replacement (“the knee surgery”).

61        Subsequent to the knee surgery, there has been some improvement in the plaintiff’s level of pain and disability, although it has not brought about complete relief of pain by any means. The plaintiff wears a stocking to support his knee joint most of the time. He can now move the knee more easily and his walking has improved somewhat but his right leg remains painful. He has an eighteen-centimetre scar running down the front of his right leg.

62        The plaintiff’s back remains constantly a source of pain, although the level of pain varies considerably. It has been a little bit better since the knee surgery. The plaintiff tries to limit the amount of medication he takes because he is concerned about the long term effects. Since October 1999, the plaintiff has taken two Panadeine Forte tablets, and at times more tablets, a night to help him sleep but even then his sleep is affected by either or both his back and right knee condition. The plaintiff leads a fairly sedentary life and does so because his injuries prevent him from engaging in more strenuous activities.

63        The plaintiff continues to suffer significant pain and disability from his knee and back. His right knee remains very painful and he has undergone a number of injection procedures involving the use of cortisone and other medications. He understood there was some ligament problem and he is due to return to Mr Brydon for further consideration of his knee pain. His knee is still pretty painful. The plaintiff’s walking ability is “not real flash hot” because of both his knee and back.

64        The plaintiff believed that his knee pain has been linked to his lower back problem which slowly deteriorated over many years. He only became aware of the serious injury incapacity arising from the pain and disability in his low back within three years prior to the commencement of his application.

65        The plaintiff found that with improved gait following the knee surgery, his lower back symptoms improved somewhat, although his back has remained a source of constant but variable level of pain.

66        The plaintiff believed that his inability to work, quite apart from his left shoulder, would have, in any event, equally arisen by reason of the continuing pain in his neck, lower back and right knee.

67        On 19 June 2008, the plaintiff underwent an MRI scan of his lower back which he understood disclosed pathology present at the lower levels of the lumbar spine.

68        The plaintiff’s symptoms in his right knee, lower back and cervical spine, each taken separately, have continued to cause him considerable levels of pain and disability. His sleep continues to be affected by pain. He continues to lead a fairly sedentary life. His ability to walk is limited despite the knee surgery and he continues to suffer spinal and right knee pain when walking.

Lay Evidence

69        The plaintiff’s wife, Vicki Wilkinson, swore an affidavit on 19 May 2009 confirming the plaintiff’s continuing complaints over a number of years of symptoms in the right knee, lower back and cervical spine. She described the plaintiff’s condition subsequent to recent knee surgery, his problems sleeping and his difficulties with mobility.

The Plaintiff’s Medical Evidence

70        Clinical notes of the plaintiff’s attendances at the Clinic between 1988 and 1996 were tendered.

71        These notes contained a referral to consultant cardiologist, Dr Toogood, in October 1995. Dr Toogood noted that physical examination, apart from obesity and mildly elevated blood pressure, was normal and he thought that the plaintiff’s condition was unlikely to be cardiac.

72        The plaintiff’s general practitioner, Dr Barr, provided a number of reports and he was cross examined. His evidence was at times confusing and not particularly helpful.

73        Dr Barr explained that he was not really the plaintiff’s treating doctor. He seldom gave the plaintiff a script and he “does not refer”. He noted that the plaintiff had lots of problems and continued to complain of a “whole textbook of problems”. The plaintiff does not come to him for his medication or his blood pressure checks, diabetes and follow up. Dr Barr noted he “had actually given up on the plaintiff”.

74        Dr Barr last saw the plaintiff on 26 May 2009.

75        In examination in chief, having been told the plaintiff’s version of the onset of his various problems, Dr Barr said that the injuries to the plaintiff’s right knee and back were consistent with manual work as a meat lumper during the relevant period.

76        Dr Barr’s computer generated notes commenced on 21 September 2000 and he explained he was missing the initial cards. Dr Barr kept some sort of a running sheet where he updated the plaintiff’s progress with details of examinations, referrals and investigations.

77        On this running sheet, there was no reference to the plaintiff complaining of back pain in October 1999. Dr Barr said he did not believe it was possible the plaintiff did not complain of his back on 18 October 1999. If he wrote it then it happened but he could not substantiate it.

78        Dr Barr initially said he saw the plaintiff three to four times a year but when he was shown his notes it became apparent he has seen the plaintiff more frequently.

79        The plaintiff tendered copies of the computerised version of Dr Barr’s notes relating to attendances between 21 September 2000 and 26 June 2006. His notes until 13 January 2004 were essentially a record of medication prescribed and investigations ordered by him.

80        During 2004, and in that time only, the clinical notes became more detailed but they are very repetitive. As Dr Barr explained in cross examination, further details may have then been recorded by him as this may have been around the time of conciliation or some sort of court proceedings. Dr Barr noted on 13 January, 26 February, 25 March and 6 October 2004 and 6 and 24 February 2006 that the plaintiff had a thirty five to forty five per cent loss of back mobility.

81        A list of the medication prescribed to the plaintiff by Dr Barr from 21 September 2000 until 16 June 2006 set out a consistent prescription of Panadeine Forte during that period, and from October 2005 also prescription of Mersyndol Forte.

82        In cross examination, Dr Barr said he did not contact any of the plaintiff’s previous treating doctors when he took over the plaintiff’s care on 18 October 1999. Dr Barr confirmed that he did not have any contemporaneous note of the plaintiff’s first attendance on 18 October 1999. He could recall however, that on that date he gave the plaintiff a WorkCover certificate in relation to his left forearm injury.

83        Dr Barr had no record of the plaintiff complaining on that date of the neck, back or knee pain and headaches related to work which were referred to by Dr Barr in his subsequent reports.

84        When shown his report of 23 October 2003, which in the first paragraph mentioned a knee complaint on 18 October 1999, Dr Barr could not explain the words “and knees” and suggested “we delete that”. He could not substantiate it.

85        Dr Barr explained that when he mentioned back stiffness in his reports he was referring to the plaintiff’s upper, not lower back. He explained that notes that were available from an examination on 21 September 2000 that referred to “chronic pains, back and shoulder pain” did not indicate the location of the plaintiff’s back pain.

86        Dr Barr’s note of 29 October 2001 set out, “back worse, was sent for a CT scan”. Dr Barr explained that he first sent the plaintiff for radiology of his back at that time.

87        Dr Barr noted, on 14 March 2001, that the plaintiff’s right knee relapsed.

88        Dr Barr confirmed he referred the plaintiff to Dr Wilk in January 2002 but that the plaintiff did not see Dr Wilk until the following year. There was a written referral in August 2003 where Dr Barr set out, “Thank you for seeing Trevor Wilkinson with lumbosacral disc sciatica and lower lumbar dysfunction”.

89        In August 2003, the plaintiff attended Dr Barr with a written list of injuries to his lower back. Dr Barr confirmed that the written list of injuries related only to injuries in the period between 1990 and 20 February 1992. Dr Barr did not know the source of the handwritten list.

90        Dr Barr referred the plaintiff for radiology and to see Dr Wilk because he was having problems with his low back and he was restricted in the things he could do. Dr Barr initially said that the plaintiff was having trouble walking in around 2003, but then said he could not remember if this was the case.

91        Dr Barr agreed, at that time, “absolutely” the plaintiff’s back pain was stopping him from doing many things. The plaintiff had problems in both his shoulders and both knees. He noted the plaintiff was a non compliant patient.

92        Dr Barr referred the plaintiff to Mr McMahon, an orthopaedic surgeon, for treatment of his right knee in August 2006. Dr Barr agreed that the knee was obviously a big problem for the plaintiff when he wrote his report of October 2003.

93        The fact Dr Barr did not mention the plaintiff’s knee complaint in his 2004 report did not mean the plaintiff had not mentioned it or that he did not have knee pain. Dr Barr ultimately agreed that it would be fair to say that the plaintiff’s right knee only became a more serious problem in 2006.

94        Dr Barr confirmed that in his reports he had referred to the presence of a left paracentral left L4-5 disc bulge – not a minor disc bulge, as was described by the radiologist commenting in the report of the CT scan.

95        In cross examination, Dr Barr agreed the plaintiff was morbidly obese and he had a nasty arthritic condition in both knees. He agreed that there is statistical evidence to support the premise that obesity is associated with osteoarthritis of the knees. Whilst he said he was not a knee specialist, he knew knee injuries were one of the most common football injuries.

96        Dr Barr accepted that osteoarthritis and degenerative disc disease were naturally occurring constitutional conditions but he disagreed they had not been caused by the plaintiff’s employment, as suggested by Mr Dooley.

97        In re-examination, Dr Barr said that the plaintiff would not work again because of both his knee and his back separately. In his view, the plaintiff would not be able to do meat lumping work because it was hard work.

98        The plaintiff saw Dr Ali on 21 August 2006, seeking a referral to an orthopaedic surgeon. Dr Ali noted the plaintiff’s long term worker’s compensation problem with back and knee problems. Dr Ali referred the plaintiff to Mr Brydon for treatment to his knee.

99        From Dr Ali’s notes it appears the plaintiff attended him on 30 August 2006 wanting Panadeine Forte for knee pain. The plaintiff was given a fresh referral for his back and knee problems. The plaintiff last attended Dr Ali on 11 September 2006, at which time Dr Ali noted that the plaintiff “had seen the orthopaedic surgeon”.

100       Mr Brydon, orthopaedic surgeon, first saw the plaintiff on 7 September 2006. He noted that the plaintiff had had pain for many years in his right knee with a completely worn out lateral compartment, with evidence of a past medial collateral ligament injury. He noted the plaintiff was restricted in his walking distance and his activities of daily living, and he was bad enough symptomatically to warrant a total knee replacement and he requested permission for the surgery.

101       Mr Brydon also reported in January 2007 that the plaintiff had had a history of a knee injury many years ago which was covered under WorkCover but the exact nature of the injury was not clear. He noted that x-rays the plaintiff brought with him in September 2006 demonstrated evidence of a past medial collateral ligament injury with a Pellegrini-Stieda lesion. In Mr Brydon’s view, assuming that lesion occurred at the time of what Mr Brydon described as the plaintiff’s original knee injury, it had a direct relationship to the plaintiff’s lateral compartment osteoarthritis as his medial laxity had overloaded the lateral compartment of the knee.

102       Pre-surgery, Mr Brydon diagnosed lateral compartment osteoarthritis probably secondary to a medial collateral ligament injury of indeterminate origin. He noted the plaintiff was unclear as to the nature of his original injury and Mr Brydon had no documentation relating to it. He commented, in those circumstances: “If as seems likely the plaintiff injured his medial collateral ligament in his work injury many years ago, then it has a direct relationship to his current osteoarthritis changes.” He noted that would need to be sorted out with the plaintiff’s treating practitioners at the time of the original injury.

103       The plaintiff was admitted to hospital on 12 March 2008 for right total knee replacement surgery.

104       On review post-operatively on 22 April 2008, Mr Brydon noted the plaintiff was doing quite well with a reasonable range of movement. He was concerned the plaintiff may have developed some arthrofibrosis and he felt it safe to wait a few more weeks before deciding to carry out a manipulation under anaesthetic.

105       On review on 7 May 2008, Mr Brydon noted the plaintiff’s range of right knee movement had improved quite significantly. On 4 June 2008, three months after surgery, the plaintiff’s range of movement was returning. Mr Brydon noted the plaintiff’s confidence was also coming back and his x-rays looked good with no worrying signs. At that stage Mr Brydon was happy for the plaintiff to progress with activities as tolerated.

106       On review in July 2008, Mr Brydon noted that the plaintiff’s range of movement was reducing and that WorkCover had stopped funding his physiotherapy treatment.

107       By March 2009, Mr Brydon considered that the knee replacement itself was working well but that the plaintiff was developing significant pain in the region of his quadriceps tendon. Considering this was the result of some calcification, Mr Brydon injected the area with steroids with immediate improvement. When last seen in April 2009, the plaintiff told Mr Brydon that after some improvement his knee was starting to deteriorate again and another injection was organised.

108       Considering his condition purely in relation to his knee, Mr Brydon thought the plaintiff should be able to return to occupational duties not placing any due stress on his knee.

Medico-Legal

109       The plaintiff was re-examined by Dr Clark on 10 November 2004. A report from Dr Clark related to an examination of the plaintiff in August 2003 was tendered by the defendant.

110       On re-examination, Dr Clark noted the plaintiff was a poor historian with limited recall of events and dates.

111       The plaintiff told Dr Clark he had no recent treatment but he was seeing Dr Barr. The plaintiff described low back pain and right knee and left shoulder ache.

112       On examination, Dr Clark noted the plaintiff’s mobility was limited by his obesity and general condition.

113       Dr Clark considered the plaintiff suffered from chronic back pain and weakness and pain in his left shoulder following a work related injury. He noted the plaintiff had degenerative spinal disease which accounted for his back pain.

114       In Dr Clark’s view, the plaintiff was significantly depressed about his life situation. He had residual pain and weakness from a work related shoulder injury and had chronic back pain from degenerative spinal disease. He thought the plaintiff’s condition was unlikely to change in the short term and considered that his physical problems were chronic.

115       Dr Clark noted he did not have the detail of particular incidents in which the plaintiff claimed to have sustained injury over his years of employment with Gathercoles.

116       Dr Clark thought the plaintiff was totally incapacitated and that he would never return to gainful employment. He considered the plaintiff had no capacity for labouring work because of his general condition, his chronic back pain and shoulder weakness.

117       The plaintiff was examined by Mr Grossbard, orthopaedic surgeon, in April 2007, July 2008 and most recently on 31 March 2009.

118       Having told Mr Grossbard about his shoulder injuries, the plaintiff told him back pain had been present from about the 1980s. The plaintiff did not recall a specific incident. The plaintiff said he did not have much pain whilst he was working but it was when he stopped work that his back tended to freeze up. He had not had any specific treatment for his back and he complained that low back pain radiated to the front of his legs down to his knees.

119       Mr Grossbard reported that the plaintiff told him that his knee swelled in the early 1990s after he slipped out of a truck, striking his knee on the steps. The plaintiff told him his right knee was constantly painful and swollen. The plaintiff told Mr Grossbard he had injured his left knee playing football in years gone but had never injured his right knee during that activity.

120       In overview, Mr Grossbard thought the plaintiff had had low back pain for many years. He considered the plaintiff had degenerative change in the lumbar spine which had become progressively more troublesome and symptomatic. Mr Grossbard believed the plaintiff’s work had contributed to the progression of his degenerative change, as had his general body hiatus.

121       Mr Grossbard thought the plaintiff’s ongoing problem with the right knee related to an injury in the presence of pre existing degenerative disease, noting the incident falling in the truck. He thought that that injury may well have exacerbated the degenerative change and made it particularly symptomatic.

122       Mr Grossbard noted the presence of pre-existing degenerative change in the plaintiff’s right knee was suggested by the general practitioner’s note in 1993.

123       Mr Grossbard re examined the plaintiff in June 2008, only three months after the knee surgery, at which time he thought it was too early to make a further assessment.

124       On the most recent examination in April 2009, the plaintiff told Mr Grossbard of continuing knee pain and varying back pain. The plaintiff told him his left shoulder pain was not causing him a great deal of trouble but he still found it painful to lie on his left side. The plaintiff could not undertake any lifting, particularly heavy weights. He was not having any specific treatment other than using Panadeine Forte, which the plaintiff said was mainly for his knee.

125       On examination, Mr Grossbard found limitation of lumbar movement. The plaintiff’s knee felt stable. Mr Grossbard noted the knee flexed to one hundred degrees but still lacked ten degrees of extension.

126       Mr Grossbard concluded that employment as a meat lumper in the relevant period had been a contributing factor to the progression of the plaintiff’s degenerative change in relation to his cervical [lumbar?] spine and right knee. He believed there were pre existing issues which had become aggravated during that period and following it. He considered the plaintiff would never be able to return to his work as a meat lumper and considered his impairment was permanent.

127       The plaintiff was examined by Mr Deacon, orthopaedic surgeon, on 18 June 2008. Mr Deacon had available to him a number of reports from Dr Barr and the plaintiff’s affidavit sworn on 25 June 2007.

128       It was Mr Deacon’s understanding, from the material with which he had been provided, that the plaintiff had worked for Gathercoles from about 1983, undertaking heavy work as a meat lumper.

129       Mr Deacon noted, in particular, performing these duties in the relevant period, the plaintiff described his work as constant, intense and heavy manual work. During that time the plaintiff frequently slipped on surfaces he was required to work on which were slippery and he had also fallen from trucks.

130       There were also isolated incidents in relation to the general nature of the plaintiff’s work which were listed in his affidavit, and injuries of a more specific nature to his chest, hand, knees, back, neck and shoulders.

131       Mr Deacon noted that subsequent to 12 November 1997, the plaintiff had suffered further injuries to his shoulders.

132       In Mr Deacon’s view, the plaintiff’s right knee became a problem during the course of his employment prior to 12 November 1997 due to the heavy nature of work and the falls. He noted that the plaintiff was referred for specialist treatment in 2006, ultimately undergoing a total knee replacement on 12 March 2008.

133       The plaintiff told Mr Deacon that since the knee surgery some strain had been taken off his lower back and his right knee had improved. The plaintiff did not have any sciatica in either leg. He still had discomfort in the left shoulder and his right shoulder was under investigation.

134       On examination, Mr Deacon fond there was a slight valgus deformity of the right knee which lacked two or three degrees of full extension and most of the valgus alignment was in the left lower limb as the right knee replacement resulted in a fairly straight right leg. The plaintiff could make an attempt at running on the spot gently but repetitive mini jumping hurt his right knee and he could not hop on it alone. His squatting was considerably reduced. There was no lateral or anteroposterior laxity on the right nor any peri-patella tenderness or retro-patella crepitus. There was a two-centimetre wasting of the right thigh musculature compared with the left.

135       The plaintiff had loss of active flexion and extension of the lumbar spine. His range of movement was about two thirds of normal and there were no neurological deficits to his lower limbs.

136       Mr Deacon also carried out an examination of both the plaintiff’s shoulders. He considered that the plaintiff’s shoulder prognosis was poor as far as getting back to heavy work, especially lumping meat. He thought the plaintiff’s lumbar spine prognosis was poor as far as heavy work was concerned because the plaintiff had severe degenerative changes, and at the age of fifty seven he was overweight. He considered the plaintiff’s right knee prognosis was now much more satisfactory since the operation and it had also taken some of the load off the plaintiff’s back.

137       Mr Deacon thought that employment during the relevant period was a significant contributing factor to the plaintiff’s injury to his spine and right knee.

138       Mr Deacon concluded the plaintiff’s work capacity had been affected by the injury in terms of his pre injury duties and his suitability for alterative employment. Having seen recent x-rays of the plaintiff’s left shoulder, lumbar spine, pelvis and right knee, Mr Deacon did not alter his opinion.

139       Mr Khan, orthopaedic surgeon, examined the plaintiff on 11 May 2009. Mr Khan noted the plaintiff performed heavy work during the relevant period and he referred to the eleven incidents described in the plaintiff’s affidavit. The plaintiff also told Mr Khan of his shoulder injuries and that he continued working on alternative lighter duties until April 2003.

140       Mr Khan noted that the plaintiff had been seeing Dr Barr, who eventually arranged a CT scan of his lumbar spine in February 2002 as his back was intermittently locking up since the injury on 12 November 1997.

141       Mr Khan noted the plaintiff recalled he had been getting aches in his back off and on throughout the 1980s due to the strenuous nature of his work. The plaintiff told Mr Khan his right knee pain developed during the course of his occupation on or about 8 December 1993, resulting in gradual stiffness and pain and swelling.

142       On examination, Mr Khan noted there was no deformity in the plaintiff’s thoraco lumbar spine but there was some stiffness in his back. There was restricted movement associated with ache. Straight leg raising was negative.

143       There was synovial swelling on the right knee. The plaintiff was unable to squat. The range of movement of the right knee was from twelve to seventy five degrees. Extension of the knee after flexion was painful and there was anterolateral ache in the right knee on weight bearing.

144       Mr Khan noted that the plaintiff injured his right knee during the course of work. The plaintiff mentioned that he initially developed pain in the right knee on 16 May 1989 and subsequently in 1991. He sustained a fall from his meat truck injuring his right knee and back on 6 August 1991.

145       The plaintiff also told Mr Khan that on 8 December 1993, during the course of his work, he developed a gradual onset of swelling, stiffness and pain in his right knee.

146       Mr Khan noted as the plaintiff’s work had been particularly heavy and he had had a few falls injuring his knee, he had flared up pre-existing degenerative changes in his knee which over a period of time had deteriorated to the point of seeing Mr Brydon in 2006.

147       Mr Khan noted the plaintiff’s knee joint had not regained full function and he had a loss of extension and limitation of flexion. The plaintiff had a residual antalgic gait in the knee associated with pain on kneeling, bending, squatting and climbing stairs. He thought in the long term, if it deteriorated, the plaintiff might require revision surgery on his right knee.

148       With reference to his back injury, Mr Khan noted the plaintiff’s work involving heavy lifting and some falls from a meat truck, as a result of which the plaintiff had developed disc disruption with bulging at L4-5 as shown on the February 2002 CT scan. In his view, there had also been a flare up of mild degenerative arthritis affecting L3-4 and L4-5, and the plaintiff had also developed facet joint arthropathy bilaterally at L4-5 consequent to the injury.

149       Mr Khan concluded that the plaintiff’s employment in the relevant period had been a significant contributing factor to the onset of acceleration of the conditions affecting his left shoulder, right knee and lower back. He considered the plaintiff totally unfit for pre injury employment.

Investigations

150       A CT scan of the plaintiff’s lumbar spine taken 21 February 2002 showed minor left paracentral L4-5 disc bulge which was non neural compressive. There was lower lumbar facet arthropathy.

151       A CT scan of the lumbar spine taken on 10 September 2003 showed degenerative changes at the L4-5 facet joints and minor degenerative change at the disc at that level and also at the L3-4 level. There was partial sacralisation of L5.

152       The whole body nuclear scan taken on 2 October 2003 did not reveal any significant isotope uptake in the patient’s ribs. Elsewhere there was an area of focal isotope activity in the left of the cervical spine in the mid level, presumably in a degenerative facet joint most likely at C3-4 or C4-5. Elsewhere in the skeleton no other significant change was noted.

153       An x-ray of left shoulder taken on 19 June 2008 showed a loss of the usual space between the top of the greater tuberosity and the under surface of the acromion, indicating probable loss of the normal thickness of the supraspinatus tendon causing impingement and the humeral head migrated proximally by almost a centimetre. There were also some osteoarthritic changes involving the acromioclavicular joint and there were early changes of osteoarthritis involving the glenohumeral joint.

154       An x-ray of the lumbar spine of 19 June 2008 showed significant degenerative changes involving the vertebra and the intervertebral discs and disc spaces but no specific narrowing. There was a slight spondylolisthesis at the L4-5 but no deficiency in the intra-articularis. There were facet joint osteoarthritic changes, especially at L4-5 on each side, and involving the sacroiliac joints. There were also some osteoarthritic changes involving the left hip joint with slight joint space throughout.

155       As far as the right knee was concerned, there was evidence of the patella having been resurfaced and the femoral and tibial component had been cemented in place and there was no evidence of any loosening of the prosthetic component.

Vocational Evidence

156       Mr Bill Radley carried out a vocational assessment of the plaintiff in September 2008.

157       On the information provided to him he believed, as a result of his back, shoulder and knee injury, the plaintiff should be regarded as having no current work capacity to return to his pre injury employment or in any other similar employment then or in the foreseeable future. Further, the plaintiff had no capacity for any type of occupational retraining.

The Defendants’ Medical Evidence

158       Dr Clareborough examined the plaintiff on 24 October 1995 following an incident on 3 October 1995 when the plaintiff developed chest pain whilst lifting a carcass at work. The plaintiff’s chest pain was situated in the front of his left side and radiated round into the auxiliary region but not into his neck or arm.

159       When asked as to his medical history, the plaintiff told Dr Clareborough that he had previously chipped his elbow, he had some minor football injuries and blood pressure problems.

160       Dr Clareborough thought the plaintiff had sustained a musculoligamentous tear as a result of lifting heavy weights at work. He did not believe the plaintiff had angina or cardiac disease.

161       Mr John O’Brien, orthopaedic surgeon, saw the plaintiff on 3 January 2002 when the plaintiff gave him a history of having “done” his left shoulder on 1 October 1999.

162       Mr O’Brien noted that in addition to describing constant shoulder pain, the plaintiff indicated that for some years he had been aware of fluctuating pain in his lower back which he said was associated with fifteen years of working as a meat lumper. Mr O’Brien reported that the plaintiff described no specific incident and said that the pain at no time caused any major dysfunction as he continued in his employment and did not require any medical treatment.

163       Mr O’Brien noted the plaintiff mentioned a back problem first to his doctor in late 2000 when it was apparently suggested he have some x-rays. The plaintiff told Mr O’Brien that he was always much better when he was constantly moving.

164       Mr O’Brien concluded that the plaintiff described what was in fact a vague history of back pain apparently present during the course of his employment over the past fifteen years. He noted that it was surprising, considering the plaintiff had been under medical care for the past few years, that he had not mentioned his back if it had been of significance.

165       On examination, Mr O’Brien noted there was little restriction of lumbar movement. However, he believed that would be in keeping with a patient of the plaintiff’s age and size and did not represent any active spinal pathology. He concluded there was certainly no clinical evidence to suggest that the plaintiff was suffering from work related pathology in the lumbar region and therefore he did not believe liability should be accepted for any symptoms associated with the plaintiff’s low back.

166       The plaintiff saw Professor MacLeod, reconstructive surgeon, on 14 January 2002 for a plastic surgery consultation. He noted the plaintiff’s surgical scars would not deteriorate or improve and he had no significant impairment from them.

167       When the plaintiff saw Dr Clark in August 2003, the plaintiff told him that his current claim was for his back not his shoulder injury. He told Dr Clark he had found it increasingly difficult to get around in recent times because of his backache and shortness of breath. The plaintiff described general weakness and inability to do much. He had to sit down because he could not walk far. The plaintiff described constant backache and shortness of breath which limited his mobility.

168       Dr Clark noted that on examination the plaintiff’s back movements were limited by his bulk. The plaintiff described tenderness in the lower back but there was no evidence of spasm. Straight leg raising was to sixty degrees on both sides and sensation and reflexes were normal.

169       In Dr Clark’s view, the plaintiff had restricted mobility caused by lack of fitness, obesity and back pain. He considered that the plaintiff’s back pain was degenerative rather than related to a particular past injury. He considered that at that time the plaintiff was incapacitated for employment because of his lack of fitness and obesity as well as the shoulder impairment. He did not think the plaintiff would return to work.

170       The defendants tendered various documents from the file of muscular physician, Dr Wilk, including a registration form signed by the plaintiff on 12 September 2003, a pain chart and a “Musculoskeletal Outcome Measure Questionnaire”.

171       Dr Wilk noted he first saw the plaintiff on 12 September 2003 in relation to the plaintiff’s long history of work injuries. He noted the plaintiff came with a written list of injuries to his lower back which occurred between 1991 and 1992, details of which are set out in Dr Wilk’s notes. The plaintiff told him that he had had little time off work but he complained of ongoing backache over the years. He said there had been some further injuries after 1992 but he did not have access to the company records.

172       The plaintiff told Dr Wilk that he did not have any actual restrictions of his back when he had to stop work because of his shoulder. After stopping work the plaintiff noticed increasing backache which had steadily worsened over the last three years.

173       Dr Wilk’s general feeling was that the plaintiff’s lower back had stiffened up in response to stopping work. The CT scan showed some spondylitic changes of the upper lumbar segment consistent with heavy work but little else. Dr Wilk thought treatment should be directed at the plaintiff losing weight and getting back to some real exercise.

174       At the examination in September 2003, the plaintiff filled out an assessment form relating to his level of disability, indicating he could not do his usual sport and recreational social activities at all. He could not walk one hundred metres; he could not kneel or squat and he could not run. He found it very difficult to bend forward or stoop or to lift and carry ten kilograms.

175       The plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, on 21 September 2007. The plaintiff told Mr Dooley he had had back pain for many years. He reported ongoing knee pain that he related to years of getting in and out of his truck. The knee pain was beginning to restrict his activity and woke him at night.

176       On examination, Mr Dooley noted there was restriction of lumbar movement and straight leg raising was to eighty degrees on both sides.

177       Prior to the knee surgery, Mr Dooley considered the plaintiff suffered from lateral compartment osteoarthritis of the right knee and from degenerative disc disease of the lumbar spine. Mr Dooley considered these were naturally occurring constitutional conditions and had not been caused by the plaintiff’s employment.

178 In Mr Dooley’s opinion, once those conditions became reasonably established, there would be times when the plaintiff’s work could cause them to have a heightened effect. Equally, activities in everyday life would also cause those conditions to have heightened effect. In Mr Dooley’s view, however, the plaintiff’s work did not initiate these conditions or cause them to be accelerated over and above their natural evolution.

179       Mr Dooley noted there was statistical evidence to support the premise that obesity is associated with osteoarthritis of the knee with information suggesting that patients who have a body mass index greater than thirty have two to three times the likelihood of developing osteoarthritis of the knee joint in their adult years.

180       Mr Dooley considered the plaintiff would continue to note intermittent low back pain and that he would ultimately progress to knee replacement surgery. Taking into account the plaintiff’s lumbar and knee conditions, Mr Dooley thought the plaintiff would be unfit to perform heavy physical work or work that involved a lot of standing or bending or kneeling on his right knee.

181       Mr Buzzard examined the plaintiff twice, firstly, on 18 September 2007, and more recently on 8 July 2008.

182       When examined initially, the plaintiff told Mr Buzzard that his trouble started in October 1999 when he slipped, causing a carcass of beef to fall onto his left arm. He had a sore left shoulder and left low back as a result of that fall.

183       The plaintiff told Mr Buzzard that he had had pain in his low back since then. Before then, he had had a few twinges of pain in his back but there had been no particular accident involved and he never sought medical attention. There had not been any subsequent accident or injury to his back and the plaintiff said his back pain overall was worsening.

184       The plaintiff told Mr Buzzard he had had knee pain since the October 1999 accident when he hurt his knee. He had had a right knee injury playing football at the age of eighteen or nineteen that lasted for about two to three weeks but did not require surgery. He had no other trouble with his right knee after that.

185       Mr Buzzard noted that the plaintiff suffered from injuries as a result of the apparent incident in October 1999. Whilst accepting the shoulder injury in that incident, Mr Buzzard noted that the history of back injury was somewhat vague. In his view, given the plaintiff’s age and size, he thought that a good deal of his degenerative disease was probably aged related and obesity related. He thought it reasonable to accept that some degree of the degenerative disease the plaintiff had in his low back region was attributable to the nature of his work given the fact that he had been doing heavy duties for a number of years.

186       Mr Buzzard noted he was surprised that the plaintiff’s initial recounting of his injuries in October 1999 did not include injury to his right knee. He thought on the information presently available to him that it was reasonable to accept the plaintiff’s present right knee pathology was attributable to the October 1999 incident. Mr Buzzard did not think the plaintiff’s work in general had affected it, which was evidenced by the fact that the plaintiff did not have clinical evidence of left knee pathology.

187       When asked to consider the involvement of the plaintiff’s period of employment with the first defendant between 1987 and 1994 in his present back condition, Mr Buzzard thought that 2.5 per cent of the plaintiff’s condition was attributable to that period, having found that 20 per cent of his condition was attributable to the nature of the plaintiff’s work in general throughout his working life.

188       Mr Buzzard re examined the plaintiff on 8 July 2008, at which time the plaintiff complained of continuing right knee pain and lower back pain. Mr Buzzard’s views essentially remained unchanged. He considered the plaintiff’s back condition was stable and that he would benefit from substantial weight reduction and the addition of a non steroidal anti-inflammatory

189       The plaintiff was examined by orthopaedic surgeon, Mr Simm, initially on 26 June 2006, and more recently on 27 October 2008.

190       On the first examination the plaintiff gave Mr Simm a history of recurrent lumbar back pain which the plaintiff attributed to the heavy nature of his work. He said his back pain at times necessitated a day or two off work. The plaintiff also told Mr Simm there was a recorded incident of him falling whilst lumping meat and striking his right knee and there was another incident where he had suffered a strain injury to the chest wall.

191       As of 2006, the plaintiff said his worst pain was in the lumbar region. He told Mr Simm the pain had come on two months after he ceased work. He did not suffer any particular injury. He thought the pain may have come on because he was not doing anything and his back just froze up on him.

192       At that time, the plaintiff also complained of quite severe right knee pain. He told Mr Simm his knee symptoms were recent and had been troublesome in the last year or so.

193       On examination, Mr Simm noted movements to the thoraco spine were performed in a very tentative and guarded fashion. There was no localised tenderness. Tendon reflexes were absent but that was symmetrical and there was no evidence of radiculopathy which would be related to a back injury.

194       There was restriction of movement of the right knee and a small right knee effusion and tenderness together with mild crepitus.

195 Initially Mr Simm diagnosed degenerative lumbar spondylosis and osteoarthritis of the lateral compartment of the right knee. He attributed these problems to the plaintiff’s age and constitutional factors. He thought the plaintiff was not fit for his pre-injury duties. Whilst he noted tentative movements on examination, he commented the plaintiff was entirely genuine.

196       On re-examination in October 2008, the plaintiff told Mr Simm his back had remained much the same and his right knee pain had increased to the point where he undergone surgery.

197       The plaintiff complained that his right knee was painful each day and he had pain at night which kept him awake. Post operatively the pain was still five out of ten. His knee was swollen and he was unable to extend it. He could walk about two kilometres and he had had more difficulty with stairs since the surgery.

198       The plaintiff complained of lumbar back pain radiating around the hip and the right thigh together with left shoulder pain.

199       On examination, Mr Simm noted moderate restriction of back movement and complaints of pain on forward flexion, and movements were guarded. Similar neurological findings to the first examination were made. The plaintiff’s knee post operatively was enlarged and there was some restriction of movement but no specific tenderness.

200       Mr Simm thought there was no realistic prospect of the plaintiff returning to work.

201       The plaintiff was examined by Dr Stern, psychiatrist, on two occasions. Initially on 22 June 2006, Dr Stern diagnosed an adjustment disorder with depressed mood in reaction to multiple work injuries including the 1999 shoulder injury.

202       The plaintiff told Dr Stern he had suffered an injury to his right knee in 1996 but had no time off but as of 2006 he had constant right knee pain. He told Dr Stern that he was suffering low back pain in around 1995 and that this worsened after the left shoulder injury in 1999 and was now constant.

203       On re-examination on 5 August 2008, Dr Stern noted there had been no improvement in the plaintiff’s adjustment disorder with depressed mood since the earlier examination. The plaintiff told Dr Stern he could not work because of his right knee and back pain.

204       Dr Stern thought the plaintiff’s psychiatric prognosis was of chronic depression in reaction to chronic pain. He considered the plaintiff did not need psychiatric treatment.

Other Employment Evidence

205       The defendants tendered a statement made by the plaintiff on 25 October 1995 relating to a complaint of chest pain at work. There was no reference in that statement to the plaintiff having any problem with his knee or back at that time. However, the plaintiff mentioned an unrelated right elbow problem and some stress following seeing a road fatality.

206       Darryl Sewell, supervisor employed by G & B Gathercole (Vic) Pty Ltd and GA Gathercole Pty Ltd since July 1999, deposed that the plaintiff worked for G & B Gathercole between 26 March 1982 and 15 May 1987 when he left of his own accord. The plaintiff worked again at G & B Gathercole between 27 June 1988 and 15 March 1989 when his employment was terminated.

207       The plaintiff recommenced work at G & B Gathercole on 2 April 1990 until 23 June 1993 when his employment was terminated. The plaintiff last worked in the period 3 April 1995 to 21 April 2000 for G A Gathercole, after which his employment was terminated.

208       The plaintiff lodged a Claim for Compensation on 4 June 2003. It set out injury to the left shoulder, back, broken ribs, neck and right knee which occurred on “various dates between 19 December 1990 to 1 October 1999”.

209       The injury register from the Gathercole entities set out a number of incidents including:

• 25 March 1991 – Injured back whilst lifting hind quarter – back very sore but continued working.

• 1 July 1991 – Fell out of truck while lifting hind quarter – injured back but continued to work but very sore and “proppy”.

• 6 August 1991 – Fell out of back of truck – injured leg – very sore – continued to work.

• 5 October 1992 – Injured back while lifting four quarter that was double hung – very sore but continued to work.

• 20 October 1992 – Hit side of door in back of truck injuring his shoulders – still working.

• 21 October 1996 – Back of neck and lower back were very sore.

• 22 October 1996 – Same injury as previous day, getting worse.

• 7 April 1997 – Returned from deliveries with a sore back.

• 6 May 1998 – Right knee very sore.

Legal Principles

210 The plaintiff must first identify a compensable injury to which s.135A(4)(b) of the Act applies.

211       Such an injury is one arising out of or in the course of or due to the nature of employment in the period between 31 August 1985 (“the appointed date”) and 12 November 1997 (“the relevant period”).

212       Thus the first issue in this case is whether the plaintiff suffered a compensable injury whilst employed by any of the defendants during the relevant period.

213       The plaintiff commenced employment with the third defendant, Graeme Arthur Gathercole, trading as Carrum Meats, on 26 March 1982. However, for the purposes of this application, the period of employment is from the appointed date until 15 May 1987 - a period of twenty one months (“the first period of employment”).

214       The first defendant, G & B Gathercole (Vic) Pty Ltd, employed the plaintiff between 27 June 1988 and 15 March 1989, and again between 21 April 1990 and 23 June 1993 (“the second period of employment”).

215       I accept that during the gap in his employment with the first defendant, or before commencing work with the second defendant, the plaintiff worked for six months with Moores.

216       The second defendant, GA Gathercole Pty Ltd, employed the plaintiff between 3 April 1995 and 12 November 1997 (“the third period of employment”).

217       All defendants deny the plaintiff suffered injury to his back or right knee during the time he was in their employ.

218     Identifying a compensable injury requires consideration of all the evidence, including contemporaneous reports by the plaintiff of work related injury, any attendances on doctors in relation thereto and medical opinion as to the relationship between the plaintiff’s work duties and his back and knee conditions.

219       The medical evidence does not assist the plaintiff in establishing a compensable injury in any particular period of employment in the relevant period. Further, at times medical examiners have based their opinions on inaccurate histories given by the plaintiff.

220       I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff’s credit in this type of case. As Chernov JA said at para 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.

221       Accordingly, in this case what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit and the histories given by him.

222     There are no reports from the plaintiff’s treating doctors prior to 1999 when Dr Barr took over his care. In any event, I find Dr Barr’s opinion in relation to this issue of little assistance given the unreliable nature of his evidence generally.

223     Mr Brydon does not assist the plaintiff’s claim in relation to his knee and he made no mention of the plaintiff’s back in his reports. Mr Brydon merely commented that the plaintiff was unclear as to the nature of the original injury. He noted that if, as seemed likely, the plaintiff injured his medial collateral ligament in his work injury many years ago – of which there was no specific history or date referred to in his report – then it had a direct relationship to the plaintiff’s osteoarthritic changes. He commented that this needed to be sorted out with the treating practitioners at the time of the original injury.

224     Dr Clark, noting the physical nature of the plaintiff’s work, had no doubt that during his period of employment the plaintiff suffered back injuries from time to time. However, in his view, the plaintiff was a poor historian and Dr Clark did not have the detail of particular incidents in which the plaintiff claimed to have sustained injuries when working with the defendants.

225       Mr Deacon accepted that the plaintiff’s work was heavy during the relevant period and he relied upon the specific incidents deposed to by the plaintiff. He considered employment during the relevant period to be a significant contributing factor to the plaintiff’s injury to his right knee and spine, but he provided no detailed analysis of his opinion.

226       The plaintiff told Mr Grossbard of a specific incident in the early 1990s when he slipped out of a truck. Mr Grossbard believed this injury may well have exacerbated degenerative change in the plaintiff’s knee and made it particularly asymptomatic.

227       Mr Grossbard noted the plaintiff suffered injuries to multiple parts of his body, including his shoulders, neck, back and right knee. He believed the plaintiff’s work had contributed to the progression of his degenerative change in his lumbar spine as had the plaintiff’s general body hiatus.

228       Mr Grossbard concluded that employment as a meat lumper in the relevant period had been a contributing factor to the progression of the plaintiff’s degenerative change in relation to his cervical [lumbar?] spine and right knee without providing any analysis of that opinion. He believed there were pre existing issues which had become aggravated during that period and following it.

229     Mr Khan accepted the plaintiff’s affidavit evidence as to the various incidents and he also accepted that the incidents of 16 May 1989 and 8 December 1993 were work related. He considered the plaintiff’s employment during the relevant period had been a significant contributing factor to the onset and acceleration of the plaintiff’s left shoulder, back and right knee conditions.

230 Mr O’Brien thought the plaintiff was not suffering from any work related

pathology in the lumbar region in 2002 having received a history from him of fluctuating back pain associated with work, no specific incident and pain at no time causing any major dysfunction.

231     Mr Simm was told by the plaintiff of recurrent back pain attributed by him to the heavy nature of work and also an incident where he fell lumping meat injuring his right knee. Mr Simm attributed the degenerative lumbar spondylosis and right osteoarthritis of the lateral compartment to age and constitutional factors.

232     Mr Dooley was given a history by the plaintiff of back pain for many years and ongoing right knee pain which the plaintiff attributed to years of getting in and out of trucks. Mr Dooley thought that based on clinical diagnosis, the plaintiff suffered from lateral compartment osteoarthritis of the right knee and from degenerative disease of the lumbar spine – both naturally occurring conditions not caused by the plaintiff’s employment

233     Mr Buzzard’s opinion is of little weight as it is clearly based on the inaccurate history from the plaintiff that he suffered injury to his back and knee in the 1999 incident when he injured his shoulder.

234     As there are three different employers during the relevant period, the plaintiff must identify the employment period in which it is alleged a compensable injury occurred. Whilst detailing particular incidents after having been provided with various documents, the plaintiff’s affidavit evidence, like the medical opinion, is also quite general.

235       I found the plaintiff to be a very poor historian with little independent recollection of events during the relevant period. His affidavit evidence was largely a reconstruction, at times inaccurate; of his work related injuries based on the register and the Clinic notes.

236       The plaintiff described the work during the relevant period as extremely heavy with the added complication of having to work on slippery surfaces as a result of which he had falls on a number of occasions. He deposed that he had had spinal pain, particularly in the lumbar spine, present throughout the 1980s. He carried on working despite these problems but he believed that the almost constant pain which continued over the years resulted from work performed before 12 November 1997.

237     The plaintiff believed that his knee pain was linked to his lower back problem which slowly deteriorated over many years.

238     In his Claim for Compensation lodged on 4 June 2003, which was completed on behalf of the plaintiff, the “date of injury/condition” was said to be “various from 19 December 1990 to 1 October 1999”.

239     It is not enough for the plaintiff to demonstrate that he has suffered injury during the relevant period, leaving it to the trial judge to relate it to a specific period of employment - per Buchanan JA in Wilson v State of Victoria (2004) VSCA 55, at para 14.

240     The Full Court in Wintle & Conaust (Vic) Pty Ltd & Ors [1989] VR 951, dealt with a similar issue, namely the necessity to show causal connection between a particular respondent’s negligence and injury.

241       In that case, the plaintiff was exposed to asbestos between 1961 and 1971, as a result of which it was alleged he had developed malignant mesothelioma. Whilst there had been a number of employers, the appellant was unable to say no more than he was engaged in similar work for each of the respondent companies during the relevant period.

242       As Crockett J pointed out:

“The difficulty simply is - as the judge pointed out- that the evidence does not disclose for how long (constantly or intermittently) a person must be exposed to asbestos dust before it can be said that a subsequently contracted mesothelioma was as a matter of probability caused by that exposure.”

243       As Kitto J observed in Nesterczuk & Mortimore (1965) 115 CLR 140, at 148:

“… no case cited to us has decided that negligence must, or even may, be inferred against both parties to a collision simply because one or other or both must have been negligent and the evidence does not appear to the tribunal of fact to exonerate either. In such a situation, the fact that the evidence does not make it more probable that both parties were negligent than that one alone was negligent positively precludes a finding that both were negligent.”

244       As Windeyer J stated in Nesterczuk:

“Doubtless the facts spoke for themselves, and eloquently, of negligence:

but of whose negligence they had nothing convincing to say. …”

245       Similar comments could be made in the present case, where there is no medical evidence to determine, with some precision, what, if any, compensable injury occurred during the three periods of employment.

246     Turning now to contemporaneous reports of incident or injury.

247     In the first period of employment there is no record in the register relating to any back or knee injury suffered by the plaintiff. No claim for compensation was submitted and there was no attendance by him on any doctor for back or right knee complaints.

248     The plaintiff has not pointed to any specific incident in that period.

249     In these circumstances, I accept that there has been no requisite identification of injury in the first period. There is no evidence separately or causatively identifying a compensable injury during that time nor has the plaintiff established a physiological change for the worse occurring in the first period employment.

250     Accordingly, the plaintiff’s application in relation to both his back and his right knee fails insofar as it relates to the third-named defendant.

251 In the second period of employment there were three references in the

register to the plaintiff suffering a back injury at work – 25 March 1991, 1 July
1991 and 5 October 1992.

252     Whilst the plaintiff deposed that in August 1990 he injured his back whilst lifting hind quarters, there is no record of this incident in the register.

253     Further, whilst he deposed to injury to his back on 20 October 1992 when “hit side of truck sustaining injury to his left shoulder and lower back,” there was no mention in the register on that date of injury to the lower back. As the plaintiff agreed in cross examination, he did not mention his back at that time.

254     The plaintiff kept working following these incidents and he did not require any medical treatment. No claim for compensation was made in the second period of employment.

255     Whilst there is no specific reference to a knee complaint in the register during the second period of employment, the plaintiff did complain of knee pain to the Clinic once in 1989, and again in 1993. However, neither entry in the Clinic’s file contained any reference to the knee complaint being work related and the 1989 entry related to both knees.

256     The plaintiff’s viva voce evidence in relation to these two attendances at the Clinic did not really advance his case further.

257     The plaintiff had no actual recollection of the 1989 incident. I do not accept his evidence that the reference in the Clinic’s notes in 1989 to the fact that he hurt both knees whilst exercising meant that he was moving on the back of a truck. In any event, as the plaintiff said himself “this was not exercising”.

258     Further, despite deposing that the December 1993 incident happened at work, the plaintiff’s viva voce evidence was that it happened at a time he was not working for any of the defendants and he could not recall the circumstances of the injury. I found his later evidence to the contrary in cross examination unconvincing.

259     Accordingly, I do not accept that the plaintiff suffered a work related knee injury in either incident. No claim was lodged in relation to any work knee injury nor did the plaintiff require any time off work after either incident.

260     Whilst the plaintiff deposed that he injured his knee at work on 6 August 1991, there is no mention of a knee injury in the register, just the reference to “fell out of back of truck injured leg - very sore - continued to work”.

261     I do not accept that the plaintiff’s evidence that he injured his right knee and back in this incident. The plaintiff could not remember this incident but said he knew he fell out of a truck and that it was his right knee that he injured. Initially in cross examination the plaintiff said this was when his knee pain started, having deposed to first suffering injury to his knee in May 1989. He later said he could not recall when knee pain first came on.

262     There was no attendance at a doctor following this incident nor did the plaintiff take any time off work. The next report of knee pain was to the Clinic in 1993 and no further mention of a knee problem at work was made by the plaintiff until 1998.

263     In these circumstances, I do not accept the plaintiff suffered a compensable injury to his knee during the second period of employment.

264     Accordingly, I dismiss the plaintiff’s claim against the first defendant in relation to his knee condition.

265 However, I accept, as confirmed by three register entries, the contents of

which were unchallenged in cross examination, that the plaintiff suffered a

compensable injury to his back in the second period.

266     There were three entries relating to the plaintiff’s back in the register during the third period of employment – namely on 21 and 22 October 1996 and 7 April 1997.

267     The plaintiff required no time off work following these incidents and he kept working full time in his normal job.

268     Based on the three register entries in relation to which the plaintiff was not challenged, I find the plaintiff suffered a compensable injury to his back in the third period of employment.

269     There was no report in the register during the third period of employment of the plaintiff suffering a knee injury. Further, there was no evidence of any medical attendances during that time for a knee complaint.

270     Accordingly, the plaintiff’s claim against the second defendant in relation to his knee condition is dismissed.

Section 134AC(b)

271 Having found the plaintiff suffered a compensable injury to his back in the second and third periods of employment, I must then consider s 135 AC(b) of the Act.

272     In AEP Industries Australia Pty Ltd v Mahmud (2007) VSCA 203, the Court of Appeal accepted on appeal that s.135AC(b) involved a two step process: First, the trial Judge must identify what the injured worker in fact knew in relation to his injury at the relevant time, and, second, whether those facts constituted knowledge of serious injury incapacity as explained in Humphries v Poljak.

273       As Ashley JA, with whom Maxwell ACJ and Nettle JA agreed, stated in

Papercorp Pty Ltd v Nicolaou: Howden v Ansett Australia (2006) VSCA 143

(supra), at para 50:

“It is for the judge hearing a s.135A(4)(b) application to decide what the worker knew about the extent of and probable duration [of] his or her incapacity arising from the compensable injury at a particular time; and, always assuming that what the worker knew represented the truth of the situation, whether what the worker knew fitted the template of serious injury incapacity, that template involving elements of fact, degree and value judgment. …”

274       Ashley JA stated, at paragraph 33, that the “knowledge of incapacity arising from the injury” may be either constituted by pain and suffering, or pecuniary disadvantage, or both:

“It appears to me, in the event, that the words ‘the incapacity arising from the injury’ in s.135AC(b) should be taken to mean any consequence, known to the worker, deriving from compensable injury, whether constituted by pain or suffering, or pecuniary disadvantage, or both, which would found a successful serious injury application. So to read the critical words is to recognize that ‘the [serious injury] incapacity arising from the injury’ may be sufficiently constituted for the purposes of the subsection by a single consequence. …”

275       The issue then is what was the plaintiff’s knowledge of the extent and probable duration of his incapacity arising from his back injury as of the said date.

276       The plaintiff’s affidavit evidence in this regard was that it was some years subsequent to 12 November 1997 before the full extent of his back condition became exposed with investigations.

277       Clearly the plaintiff had no incapacity for work related to his back whilst working with any of the defendants. At all times the plaintiff’s evidence has been that he ceased work in early 2000 because of his left shoulder and he was not restricted in his work duties by any back condition.

278       Looking at his knowledge of incapacity from a pain and suffering perspective, the plaintiff‘s own evidence was that spinal pain was present throughout the 1980s and “would come and go”.

279       In cross examination, the plaintiff agreed that for a long time before the 2002 CT scan of his lumbar spine, he had back pain. In 2002, it would have been when he really noticed “it was getting that way - I just wanted to know what it was I knew it was through work”. He agreed in cross examination that his back really became a problem and started to stop him doing things in 2002/3.

280       Further, his evidence was that his back became cold a month or two after ceasing work and steadily worsened over the next three years.

281       Whilst the plaintiff deposed the full extent of his back problem became apparent after investigations were carried out, all investigations were carried out before the said date.

282       Dr Barr referred the plaintiff for a CT scan in 2001 which he underwent in February 2002. There was a further CT scan of the lumbar spine on 10 September 2003 and a whole body nuclear scan on 2 October 2003.

283       Further, prior to the said date the plaintiff was complaining to doctors of back pain.

284       Dr Barr noted complaints by the plaintiff, including chronic back pain, although not noting what part of the back, on 21 November 2000 and thereafter leading the CT scan, and later the referral to Dr Wilk. Further, Dr Barr agreed that the plaintiff’s back was stopping the plaintiff from doing many things in 2003.

285       The plaintiff complained of back pain to Mr O’Brien in January 2002. The plaintiff told Dr Clark on 6 August 2003 of his inability to do much or walk very far due to backache and shortness of breath.

286       Although the plaintiff could not recall seeing Dr Wilk in September 2003, I accept the plaintiff was referred to him by Dr Barr in relation to his back condition. At that time the plaintiff complained of a number of activities he could not do at all or found very difficult because of back pain.

287       The Claim for Compensation was lodged on 4 June 2003 detailing injury to the plaintiff’s left shoulder, back, broken ribs, neck and right knee on various dates from 19 December 1990 to 1 October 1999.

288       Taking into account these matters, I accept that the plaintiff knew the full extent of his back restrictions at the latest by September 2003 when he saw Dr Wilk.

289       I do not accept, as the plaintiff deposed, that serious injury incapacity, insofar as it related to his back, has arisen within the past three years.

290     There is nothing that the plaintiff can point to after the said date to show that his situation has changed from that detailed above. I do not accept that there has been any material change in the plaintiff’s back condition since that date.

291     I do not accept, as the plaintiff later said in cross examination, that he first knew he had a “real serious problem” with his back when he saw Mr Brydon in 2006. The plaintiff saw Dr Brydon for his knee complaint and was not treated by him for his back, nor did Mr Brydon make mention of a back complaint in his reports, specifically commenting that he had not discussed any secondary injuries with the plaintiff.

292     I do not accept the plaintiff’s back condition is “serious”. Whilst the plaintiff says that his back has deteriorated since leaving work, since 2003 the attendance on Dr Wilk, which the plaintiff cannot recall, there has been no specialist referral or specific treatment for the plaintiff’s back.

293     Medication is simply two Panadeine Forte a day, the same medication regime he has undertaken because of his shoulder injury in 1999 and has not altered in response to what he claims is increasing back pain. Investigations of the plaintiff’s lumbar spine have essentially revealed degenerative changes consistent with age and no neurological abnormalities have been found.

294     Further, as the plaintiff acknowledged, there had been an improvement in his level of back pain following the knee surgery.

295     In these circumstances, I am not satisfied that there is a present incapacity in relation to pain and suffering or loss of earning capacity related to the plaintiff’s compensable back injuries that is serious.

296     Accordingly, the plaintiff’s application against the first and second defendant in relation to his back condition is also dismissed.

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