Young v Extrordinair Pty Ltd
[2022] VMC 28
•30 September 2022
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER Division
Case No. M11948754
| BENJAMIN YOUNG | Plaintiff |
| v | |
| EXTRORDINAIR PTY LTD | Defendant |
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MAGISTRATE: | M A HOARE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24-26 August 2022 |
DATE OF DECISION: | 30 September 2022 |
CASE MAY BE CITED AS: | Young v Extrordinair Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2022] VMC 28 |
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WORKERS COMPENSATION – Rejected claim – Neck injury – Denial that claimed incident occurred - Credit of plaintiff – Significant contributing factor - Claim lodged after ceased to be employed by defendant – Whether or not lay witness taken to be available to give evidence – Whether adverse inference to be drawn regarding lay witness not giving evidence - Workplace Injury Rehabilitation and Compensation Act 2013, ss 22(2), 39(1), 40(3), 160, Sched 1 cl 25 – Evidence Act 2008, ss 63(1), 67(1), 68.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr Y. C. Chen | Arnold Dallas McPherson |
| For the Defendant | Mr B. McKenzie | Hall & Wilcox |
HER HONOUR:
Introduction and Overview
Mr Young, the plaintiff, claimed compensation for injury to his neck as well as psychological sequelae as a result of an incident on 17 May 2019 whilst installing an air-conditioning unit (the incident). He alleged that the incident occurred in the course of his employment as a leading hand with the defendant, Extrordinair.
Extrordinair denied that the incident had occurred at all.
Mr Young lodged his claim for compensation for injuries from the incident after his employment was terminated by Extrordinair.
He brought the proceeding under the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act).
Mr Young gave oral evidence as did a director of Extrordinair, Mr Brown. Medical evidence was tendered into evidence by consent.
Mr Young’s Evidence
Background and Prior History
Mr Young, aged 39 years, was a qualified plumber having completed an apprenticeship and a Certificate IV in plumbing and gas-fitting.
In the past, Mr Young had been treated for mild depression. As a teenager, he had suffered some concussion events playing football. He had been treated by GPs at the Star Health Group in South Melbourne (the Star clinic).
However, under cross-examination Mr Young did not recall an attendance at the Star clinic on 2 April 2019 for chest pain and problems with low mood and anxiety connected to past employment.
Mr Young attributed that to bullying in late 2018 by a manager with a previous employer. After that episode, he was having a rough time and lived with family in Tasmania for a period before taking steps in late 2018 to renew his plumber’s licence which took some months.
10. In cross-examination, Mr Young agreed that on 10 April 2019 he again attended at the Star clinic for mental health issues. He saw Dr Belleli who had recorded that Mr Young, having quit all medication in early 2019, had a ‘history of “running/quitting” when stressed at work’. As for Dr Belleli’s reference to him ‘overall feeling a lot more optimistic’, that related to Mr Young having renewed his plumbing licence.
11. In cross-examination, Mr Young agreed that from around 2012, he travelled intermittently through Europe and Asia. Over this time, he also did a mix of plumbing work and casual labouring including a stint with Metro Rail.
12. In cross-examination, Mr Young agreed that the resume he provided to Extrordinair included no history of casual labouring work. As for the employment history giving an impression of working continuously as a plumber for several years before Extrordinair, the explanation was that he had been too lazy to update what was an old resume.
13. Immediately before starting with Extrordinair, Mr Young had worked as a contractor on gas-fitting and drainage jobs for Mr Andrew Hicks of BAS Renovations and Plumbing. A tax invoice of 21 May 2019 showed Mr Young had done work on seven dates for Mr Hicks in late April and early May of 2019. Mr Young initially thought he did not work for Mr Hicks again after 11 May 2019, but later said he could not be sure.
Employment with Extrordinair
14. On around 18 April 2019, Mr Young began full-time employment with Extrordinair reporting to Mr Brown. Duties included installation of heating and cooling systems on domestic residences still under construction.
15. Mr Young had done work on some dates for Mr Hicks after starting with Extrordinair. That had been by prior arrangement with Mr Brown who had been accommodating of him needing to finish off jobs in progress. Mr Brown denied this, saying any days taken off were said by Mr Young to be for personal reasons.
Incident
16. On the day of the incident (a Friday), Mr Young was working for Extrordinair at a domestic residence under construction at Kalkallo, on the northern outskirts of Melbourne (the Kalkallo site). Construction at the Kalkallo site was at the ‘rough in’ stage.
17. Under cross-examination, Mr Young agreed that in examination in chief he had initially said he was working for Mr Hicks on 17 May 2019 (the date of incident). That was because he got the dates confused.
18. The incident occurred in the afternoon whilst Mr Young was installing a cooling and heating unit in the roof cavity of the Kalkallo site residence. He was working with another Extrordinair employee, Mr Jarrad Hall, an apprentice. The unit, cased in steel, weighed about 60 kilograms. Mr Young was standing on a ladder, and manually supporting the unit above his head. Mr Hall was above him in the roof cavity on a chipboard platform.
19. Mr Young was pushing the unit upwards, but at some point Mr Hall lost his hold or lost strength. That caused Mr Young to take the full weight of the unit on his head. Mr Young felt downward pressure on his head and felt the weight of it in his head, neck and shoulders and arms. At some point he knew he had done something and took a break before getting on with the job.
20. In cross-examination, Mr Young agreed the unit had very sharp edges and corners. However he suffered no laceration injuries as he had no contact with the corners or edges of the unit.
21. Mr Young kept working to get the installation completed as the job had been on a fine dead-line. There was a huge rush at the end of the week to get it done.
22. Under cross-examination, he said he had been phoned that day by the boss, Mr Brown, about the job at the Kalkallo site being urgent and it was all last minute. Mr Brown denied that.
23. Also, the builders were on a tight time-frame and it was a large build with many outlets for heating and cooling.
24. At the end of the day, Mr Young and Mr Hall left the Kalkallo site and drove together back to the Extrordinair depot. When they arrived, Mr Young told Mr Hall to report the incident in the office to the director, Mr Brown, and went home.
25. In cross-examination, as for why he would not have reported the incident himself, Mr Young said he did not know the protocol. He did not know why he did not go into the office and tell someone himself. As for what would have stopped him from doing so, he was fed up and wanted to go home to his heavily pregnant partner. Working with the apprentice was hard enough and he was absolutely fed up with him too.
26. As for why he would entrust Mr Hall to report the incident if he was fed up with him, under cross-examination, he said he just wanted to go home. As a new employee, he was just trying to do his best and get the job done by the end of the week.
27. Also, in cross-examination, Mr Young conceded that if there had been such urgency and he felt pushed, the logical thing would have been to tell Mr Brown on that day he had been injured.
Post incident
28. Mr Young did not work again for Extrordinair after the incident.
29. Later in the week after the incident, Mr Young recalled receiving in the mail a letter dated 20 May 2019 terminating his employment with Extrordinair (the termination letter). The letter from Mr Brown was addressed to his residential address and also ‘by email’ and stated:
Dear Ben. We have come to the decision you will not be continuing with Extrordinair. You do not meet the standard that we expect from a leading hand. You will be paid for the week 13 May – 17 May 2019. We wish you well for the future. Yours sincerely.
30. Mr Brown had no recall of receiving the termination letter by email.
31. In cross-examination, Mr Young was shown an email to his email address sent from the Extrordinair accounts officer on Monday 20 May 2019 at 4:27 pm attaching the termination letter. Mr Young accepted that email was sent to his email address, but never received it and would need to dig into his emails and look again.
32. Mr Young’s reaction on receiving the termination letter was one of feeling devastated as it was a new job and he and his partner had a baby on the way. Before that, no performance issues had been raised with him at all.
33. Under cross-examination, Mr Young said he was unaware Mr Brown had an issue with his work in the first week of his employment with Extrordinair. It was put to him that Mr Brown, who inspected the job on a double-storey house, considered aspects of the work did not comply with regulation standards. Mr Young conceded that was a tricky job and there may have been issues with the duct work. However, Mr Brown was not a licenced plumber and could not have said whether a job complied with regulations or not.
34. On 21 May 2019, the Tuesday, Mr Young attended the Doctors of South Melbourne clinic (the DSM clinic) and saw a GP, Dr Carter, regarding neck pain which he attributed to the incident. As for why he did not see the GP over the weekend or on the Monday, he had initially tried to rest. Dr Carter sent him for a CT scan.
35. In cross-examination, Mr Young agreed that Dr Carter had recorded a history of the unit having fallen on top of his head after the apprentice had not quite had hold of it. Mr Young did not know why Dr Carter recorded that the unit fell rather than pressed down on his head.
36. In cross-examination, Mr Young said there had been a visible, semi-circle mark of about four inches long across his forehead which he pointed out to Dr Carter when he saw her. Although this was not recorded in the clinical examination note. He could not say why if there had been such a mark why he would not have gone into the Extrordinair office on the day of the incident to show somebody.
37. The day after seeing Dr Carter, on 22 May 2019 Mr Young attended the Star Clinic and saw Dr Belleli for some test results. The history was of having done some work and studying for a further plumbing certificate. He reported staying off alcohol, taking no medication and exercising. As for why he did not make any report of the incident to Dr Belleli, Mr Young said he may have told her or else he may not have told her given he had already seen Dr Carter about it.
38. On 22 May 2019 at 6:23 pm, Mr Young sent an email to Extrordinair reporting an injury to his neck/upper back area on 17 May 2019 in the afternoon at the Kalkallo site. He reported having been assessed by his GP and having been given a WorkCover certificate. He received no response.
39. As for his email of 22 May 2019 and why he would have sent it sooner, in cross-examination, Mr Young said he thought telling the apprentice to report it was enough.
40. Mr Young had persisting symptoms of neck and left shoulder pain as well as in the region of his upper trapezius/deltoid area. He had some treatment sessions with physiotherapist students at Victoria University which did not help.
41. About a week after the incident, Mr Young had telephoned WorkCover and asked for a claim form to be posted out to him. He received that in the mail. He then completed, signed and lodged a WorkCover claim form on Extrordinair with a date of 15 June 2019 (the claim).
42. The claim form described the injury as ‘muscular strain/sprain to the neck and upper back area’. As for the circumstances of injury, Mr Young had written:
Lifting a ducted heater onto a roof space with a co-worker onto a chipboard platform. I was pushing the unit up off a ladder when all of the weight was forced down onto my head and neck. (Unit weight 60 kg approx.)
43. In cross-examination, Mr Young agreed that in around June 2019 he spent a couple of weeks overseas in Taiwan for the birth of his first child. That was to support his partner who had wanted to give birth to their baby there.
Other employment
44. On 18 November 2019, Mr Young started employment as a service technician with Chute Services Australia (Chute). Duties included maintenance and cleaning of chutes in apartment blocks. It was lighter work than for Extrordinair with less lifting and less work above head height.
45. He worked for Chute for about four or five months before resigning. He stopped due to pain with increasing symptoms and shooting pains in his arms and on the left side of his neck.
46. In cross-examination, Mr Young agreed he disclosed no issues regarding his neck when he applied for the Chute job, however he later told a manager about needing the epidural injection in January 2020.
Subsequent circumstances
47. By way of further treatment, there had been two epidural injections to his neck. Both times, Mr Young had relief of symptoms for only a few weeks only.
48. In cross-examination Mr Young agreed there were no attendances at the DSM clinic between May 2019 and 9 January 2020, on which date he saw a Dr Kirwood complaining of a neck injury from the incident at work on 17 May 2019 and of working again by then (for Chute). A further gap in treatment at the DSM clinic occurred between 9 January 2020 and 7 October 2020. There were also no attendances at the Star clinic after 22 May 2019 until August 2020.
49. In October 2020, Mr Young consulted with Mr Rogers, a neurosurgeon, who recommended spinal fusion surgery as an option for him. Mr Young would have the surgery if he could pay for it because he wanted to recover and be pain-free.
50. Mr Young also saw a Mr Bennett at the Alfred outpatients who did not recommend the surgery. He went to a pain clinic in Richmond.
51. In cross-examination, Mr Young agreed that on 11 August 2020 he had attended Dr Julie Tindall via telehealth at the Star clinic about anxiety and depression, intermittent excess alcohol and suicidal ideation. An anti-depressant was prescribed. Mr Young did not mention neck symptoms or the incident on that day, however he did so the next day (on 12 August 2020) when he saw Dr Tindall again.
52. As for why there are gaps in treatment, that may have been because of financial stress or due to the COVID-19 pandemic although he agreed he had some telehealth appointments. Also, as nothing was changing, he felt dejected, depressed and gave up.
53. His ongoing symptoms were numbness and shooting pains though his neck and left shoulder, arm and hand. A focus point of his pain was the site of the second epidural injection in the front of his neck.
54. Mr Young later saw a Dr Teh at a pain clinic in Caulfield.
55. Around 12 months ago (in August 2021), Mr Young had an inpatient admission for psychiatric treatment after an episode of feeling suicidal. He had felt overwhelmed by the pain and loss of function of his upper left body, a sense of lost identify and the loss of income because of not working. Mr Young presented to Casualty at the Alfred on two further occasions for mental health concerns although was not admitted again.
56. As for work, Mr Young has not worked since that ceasing with Chute. He did not believe he could work as a plumber. He received Centrelink payments for a period of time but now lived on his savings.
57. His moods were volatile and he lived in a constant state of fear, anxiety and unhappiness. He worried about becoming worse. He tried to manage his moods by self-care and clean living. He stopped drinking alcohol.
58. Mr Young currently sees a Dr Osman at the DSM clinic for prescriptions and review. He is not having counselling currently. Medication is duloxetine 60 mgs, a blood pressure medication and melatonin for sleep issues.
59. In cross-examination, Mr Young agreed that he told Dr Lewis, medico-legal psychiatrist about an episode some time after the incident involving a physical altercation in a bar. He agreed he also described to Dr Lewis having ‘vengeful fantasies’ about the employer and whoever rejected his claim but denied he would have acted on these.
Mr Brown’s evidence
60. Mr Andrew Brown, a director of Extrordinair for 15 years, had completed most of a plumbing apprenticeship although was not qualified. The other director of Extrordinair was a licenced plumber.
61. Mr Brown was aware Mr Young had previously operated his own business as a plumber. He did not recall him saying he would need to finish off other jobs after starting with Extrordinair and, if he took time off, it was for personal reasons.
62. As for the Kalkallo site job, Mr Brown denied phoning Mr Young on the date of the incident to say the job was urgent or else did not recall doing so. At another point, he said he may have phoned Mr Young on the day but could not recall the discussion.
63. As for the alleged incident, the unit’s weight was about 60 kilograms and it had steel casing. Mr Brown had experienced a similar incident himself with such a unit and had lacerated his jaw on a sharp edge or corner.
64. In cross-examination, Mr Brown agreed he was not at the Kalkallo site on the day of the incident and did not know whether or not Mr Young was injured. He conceded that with a 60 kilogram unit in two pairs of hand, it would not take much for there to be pressure on the person below.
65. At the time of the incident, Extrordinair maintained an injury register. He did not provide a copy of the injury register to the circumstance investigators as they did not ask to see it and it had nothing in it about Mr Young.
66. Mr Brown had spoken with Mr Young regarding problems with his work on the double-storey house. That was the week before they had let him go.
67. The reason for the termination of Mr Young’s employment was because his work was not up to standard. Mr Brown had no awareness of any injury suffered by Mr Young at the time he wrote the termination letter.
68. Mr Hall had reported no incident or injury on Mr Young’s behalf. Mr Hall no longer worked for Extrordinair having resigned about four weeks ago.
Medical Evidence
69. Dr Sophie Carter, former treating GP of the DSM clinic, had prepared three referral letters. The initial physiotherapy referral letter of 21 May 2019 described injury four days previously in which Mr Young was lifting a 60 kg unit onto a roof when it fell onto his head, the other person having lost control of it. The history was of pain not being too bad initially, then having escalated over the past 48 hours. The GP management plan of 2 November 2020 contained a history the unit not being supported and landing on Mr Young’s head. The further history was of the employer terminating employment after the WorkCover claim was lodged and of Mr Young feeling anger about that. A referral letter of 15 January 2021 repeated that history including a current presentation of a situational crisis with suicidal ideation following rejection of his WorkCover claim.
70. Mr Myron Rogers, neurosurgeon, prepared a report to Dr Carter dated 28 October 2020. The history was of being on a ladder on 17 May 2019 pushing the 60 kg unit above his head when the apprentice let go causing it to land on his head. The incident happened on a Friday and he was made redundant on the Monday. There was a period of light work with another employer which did not last. Symptoms were of persisting discomfort around the left shoulder and scapula with radiation into the arm. A review of the MRI of 12 October 2020 demonstrated mild multi-level disc degeneration including C5/6 foraminal narrowing and a C6/7 protrusion with compression of the C7 nerve. Options for treatment were: self-management considered unlikely to be effective because of the onset of a chronic pain syndrome; multi-disciplinary pain management; or an anterior decompression and fusion at C5/6. The last option was favoured by Mr Rogers.
71. Alfred Health provided various psychiatry discharge summaries between January and August of 2021. The initial assessment was for an in-patient admission following a CAT assessment after ‘a meltdown’. The history was that ‘things became tough’ 18 months ago after the work incident in which his head and spine took most of the weight of the unit. He was fired for not leading the team well enough after his WorkCover claim was rejected. The last presentation referred to mood deterioration and increased anger after an assault 6 to 8 weeks ago when out at night in the CBD.
72. Dr Jason Teh, rehabilitation medicine consultant at Caulfield Hospital pain management service, prepared a report to Dr Carter dated 12 May 2021. A history of the incident was given including of the unit’s weight suddenly coming on his head with pain later developing in the head, neck and left scapula and arm region. He was made unemployed a week later and continued to be rather angry about that. The impression was of neck and left upper limb pain secondary to cervical radiculopathy.
73. Ms Carly James, neuropsychology registrar at the Alfred, prepared a report of 14 May 2021. The incident was reported by Mr Young and she noted there was a background of concussions and possible head injuries as a young footballer and in bar fights. She opined there was attentional dysfunction with the predominant factor being low mood and psychological well-being.
74. Mr Iwan Bennett, neurosurgeon at the Alfred, prepared a report to Dr Carter of 24 May 2021. The history of the incident was exposure to a prolonged period of axial neck loading when lifting a heavy item above his head. There was onset of left scapular pain which persisted along with neck pain. Symptoms were worse after the C6 nerve root injection in May 2021. Decompression surgery was not recommended as it was considered likely to be of limited benefit on his overall pain syndrome. Also non-operative options were yet to be exhausted. It was noted in a subsequent report of 27 May 2021 to Dr Teh that the left C6 nerve root compression could be a good target for surgical treatment. However there were contra-indications for surgery including significant levels of neck region pain and a significant psychiatric history.
75. Dr Michael Ow-Young, neurosurgeon, prepared a medico-legal report for Mr Young’s lawyers dated 24 February 2022. The incident history was of the apprentice being unable to take the unit’s weight which Mr Young then had to support with arms and the top of his head placing significant force through his neck. Medications were Cymbalta (60 mgs/daily) and melatonin. The opinion as to diagnosis was of structural injuries to C5/6 and C6/7 with symptomatic left C5 radiculopathy. The injuries were caused by the incident. It was opined that the progression of structural changes at C5/6 and C6/7 were far more rapid than would be expected from natural degenerative processes. There was no capacity for pre-injury employment and severely limited work capacity otherwise including restrictions on lifting. He opined there was a high probability that Mr Young may require the surgery suggested by Mr Rogers.
76. Dr Justin Lewis, psychiatrist, prepared a medico-legal report for Mr Young’s lawyers dated 3 March 2022. There was a history of the incident in which the apprentice had difficulties holding the unit which meant the weight of the unit rested on Mr Young’s head. The job had been time urgent. Mr Young asked the apprentice to report the incident and employment was terminated the following week. The psychiatric history was of lowered mood soon after the incident in a setting of pain, physical restrictions and occupational incapacity. Mr Young reported ‘vengeful fantasies’ of a violent nature towards the employer and the person who rejected his claim. The diagnosis was of a work-related adjustment disorder with behavioural disturbance. On the history, there was a clear temporal relationship between the incident and subsequent development of significant mood difficulties. There was incapacity for pre-injury and all alternative duties. Treatment required included a pharmacological review of a psychiatrist and ongoing psychological therapy.
77. Dr Anthony Menz, orthopaedic surgeon, prepared a medico-legal report for Extrordinair’s lawyers dated 24 June 2022. The history of the incident was that fatigue set into his arms as the unit started resting on his head. After that, there was persisting neck pain and pain radiating into his left arm. There was an attempt at working in a different job which did not last. The diagnosis was of cervical spondylosis with a C6/7 disc protrusion causing right C7 radiculopathy. He opined the problem with the radiological findings was that they did not coincide with the presence of left radiculopathy signs into his arm. The incident was a significant contributing factor to the injury. He opined that the CT scan of 24 May 2019 showed very little pathology one week after the injury, but any disc damage would not be shown that early. Whereas the significant changes at C5/6 and C6/7 demonstrated on MRI on 13 October 2020 could possibly reflect the end result of discs damaged at the time of the incident. There was no capacity for pre-injury employment or any employment. A further surgical opinion was required on the question of surgery.
78. Dr Alan Jager, psychiatrist, prepared a medico-legal report for Extrordinair’s lawyers dated 5 May 2022. The incident involved taking the weight of the unit on his head, of feeling sore over the weekend before attending the GP the next week. He became depressed after a couple of months when he realised the injury was not a soft tissue one. He reported having been consistently employed before the incident and a past episode of depression in 2012. The diagnosis was of an adjustment disorder with emotional and behavioural disturbance. It was opined that employment was a significant contributing factor to the psychological diagnosis. The psychological condition did not impact on capacity for work.
Role of Mr Hall and Consideration
79. Before turning to my analysis of the evidence overall, it is convenient to deal first with matters that arose during the hearing regarding the role of Mr Hall.
80. Mr Hall was an important actor in the events of 17 May 2019. He was involved in the incident itself (having, according to Mr Young, let go of, or loosened his hold on, the unit). He was also the person asked by Mr Young to report the incident.
81. At the hearing’s outset, Counsel for Extrordinair indicated the defendant would call him. However, after the close of the plaintiff’s case, Counsel for Extrordinair informed the Court that his instructing solicitors had been unsuccessful in securing Mr Hall’s attendance to give evidence.
82. On that basis, Counsel for Extrordinair applied to have Mr Hall’s previous signed statement (made to circumstance investigators) admitted into evidence. That was pursuant to the exception to the hearsay rule contained in s 63(1) of the Evidence Act 2008 and on the grounds that Mr Hall was ‘not available’ to give evidence at the hearing.
83. Counsel for Mr Young objected strenuously to that course being taken and arguments were heard from both Counsel.
84. Counsel for Extrordinair informed the Court that his instructing solicitor (who was willing to give evidence under oath) had taken all reasonable steps to find Mr Hall and to secure his attendance, but without success. Those steps were:
a. Making contact with Extrordinair and having established that Mr Hall was still employed there at the time of the previous hearing date of 2 August 2022;
b. Having only recently learned of Mr Hall leaving the employ of Extrordinair about four weeks ago for another employer;
c. Having Mr Hall’s mobile number as well as contact details for his current employer, but being unsuccessful in making contact with him via his current employer or on his mobile number; and
d. In anticipation that Mr Hall would respond to attempts to contact him and attend Court, a subpoena had not been issued to compel his appearance.
85. Counsel for Mr Young submitted that, on the contrary, that based on the information provided by Counsel for Extrordinair, I ought not be satisfied as to Mr Hall being unavailable. Accordingly, Mr Young’s previous statement, which offended the hearsay rule, ought not be admitted into evidence.
86. Counsel for Mr Young relied on sub-paragraphs (f) and (g) of Clause 4(1) of Part 2 of the Dictionary to the Evidence Act2008 regarding ‘Unavailability of persons’. That provides as follows:
(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if— …
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or
(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
(2) In all other cases the person is taken to be available to give evidence about the fact.
87. After hearing argument, I ruled that Mr Hall was ‘taken to be available’. That was because I was not satisfied Mr Hall was unavailable given he had been found and was contactable on a current mobile phone number and via current employer details. Rather, the situation was that his attendance at Court had simply not been secured nor had he been compelled.
88. Accordingly, I also ruled against his previous statement being admitted into evidence.
89. Further, Extrordinair (as was conceded) had not given notice in writing pursuant to s 67(1) of the Evidence Act 2008 regarding Mr Hall’s evidence nor was I prepared to exercise a discretion under s 67(4) regarding the failure to give notice. That was, firstly, because of the clear importance of Mr Hall as a witness as I have already indicated and, secondly, given the plaintiff maintained an objection to his previous statement being admitted into evidence.
90. In closing addresses, both Counsel then made submissions about whether or not an adverse inference ought to be drawn regarding Mr Hall’s non-attendance at Court. That was in accordance with the rule in Jones v Dunkel.[1]
[1](1959) 101 CLR 298.
91. It was submitted for Mr Young that such an inference ought to be drawn against Extrordinair who would have been expected to call Mr Hall. He was an employee of the defendant until very recently and indeed Counsel had indicated at the hearing’s outset Mr Hall would be called yet failed to produce him.
92. In that sense, I agree with Counsel for Mr Young that the plaintiff was entitled to consider that Mr Hall was in the ‘camp’ of the defendant. On that basis, I draw no adverse interest against the plaintiff for his failure to call Mr Hall (nor did Counsel for Extrordinair urge me to do so).
93. As for any inference against the defendant, Counsel for Extrordinair acknowledged that, whilst the defendant had failed to secured Mr Hall’s attendance at Court, there had been an attempt to have his statement tendered into evidence. That attempt, it was submitted, ought mitigate against drawing any conclusions regarding against the unsuccessful effort to have him appear.
94. On balance, I agreed with Counsel for Extrordinair, and in those circumstances, I conclude that it would also not be appropriate to draw an adverse inference as against Extrordinair that Mr Hall, if called, would necessarily not have assisted the defendant.
95. In any event, of course, the burden of proof rested squarely with Mr Young to establish to the requisite standard that the incident occurred and that he suffered injury in the course of or arising out of employment.
Analysis
96. As I observed at the outset, the main focus of Extrordinair’s defence was a denial that the incident occurred at all. In its Notice of Defence dated 15 October 2021, Extrordinair pleaded specifically that: ‘an air-conditioning unit was not dropped on the plaintiff’s head during the course of his employment on 17 May 2019’.[2]
97. Counsel for Mr Young submitted that Extrordinair’s denial that the incident occurred at all was consistent with an allegation that the plaintiff was dishonest. That called for a Briginshaw v Briginshaw (Briginshaw)[3] approach. In other words, it was contended that should the Court make a finding that the incident did not occur, that needed to be a higher Briginshaw standard as an assertion of such blatant dishonesty on the part of the plaintiff would be to attribute grave moral culpability to him.
98. Ultimately it was not necessary for me to consider the correctness of that submission other than to note that my task as the tribunal of fact was not to make a positive finding that the incident did not occur. Rather, the task was to consider whether the weight of evidence reached the requisite standard of proof that the incident occurred as Mr Young claimed.
[2]At paragraph 4(b).
[3]Briginshaw v Briginshaw (1938) 60 CLR 336.
- Certainly, as I have said, the legal and evidentiary onus of proof rested with Mr Young to establish, on the balance of probabilities, that the incident occurred and that he had an entitlement to compensation for injury in accordance s 39(1) of the Act.
In discharging the burden of proof, Mr Young needed to persuade me that his evidence was credible and reliable. He needed to establish the reliability of the histories given to the medical witnesses.
As Counsel for Extrordinair observed in submissions, all of the medical opinions were premised on Mr Young’s account regarding the incident and the surrounding circumstances.
Mr Young’s credit was of course, therefore, of critical importance in a case of this kind. That has been confirmed by the Court of Appeal in cases of this kind many times, most recently in Johns v Oaktech Pty Ltd.[4]
[4][2020] VSCA 10 [76].
Counsel for Extrordinair submitted that the Court ought to find, on the whole of the evidence, that Mr Young was not a credible witness and thus his evidence and histories to medical practitioners ought not be accepted.
In essence, it was submitted, it was implausible that Mr Young would not report the incident nor any injury to anyone at the depot when he returned with Mr Hall. There was also the fact that incident was only reported after Mr Young learned of his employment being terminated.
It was submitted there was a series of ‘red flags’ regarding Mr Young’s account that emerged in the course of cross-examination regarding the alleged incident, prior work history and the subsequent course of events.
Certainly it is true, as Counsel for Extrordinair pointed out, that there were various inconsistences and contradictions in aspects of Mr Young’s evidence. Examples included:
a. His evidence was inconsistent regarding the job at the Kalkallo site being urgent, initially suggesting that was an instruction of Mr Brown, then shifting to say the urgency was at the behest of the builders.
b. The attendances one day apart at two separate GP clinics the week after the incident was troubling particularly making no reference to the incident to Dr Belleli at the Star Clinic.
c. Mr Young had provided a factually inaccurate account of a consistent work prior history in his resume of continuous self-employment (BHY Plumbing) from ‘2004 - present’ and with Macleod Plumbing from ‘2000 – 2004’.
d. His evidence under cross-examination of a circular mark or bruise on his forehead, although that was not recorded by Dr Carter in an apparently thorough clinical examination. Nor was any visible mark mentioned in histories to any other doctors.
Having the benefit of observing Mr Young whilst he was cross-examined with some rigor and weighing the whole of his evidence, I formed the view that he was an honest witness attempting to cooperate in answering questions. It was my view that inconsistencies or contradictions referred to by Counsel for Extrordinair were not due to Mr Young deliberately attempting to mislead the Court. Rather, I concluded that this was on the whole more likely due to impaired memory or concentration. Such a presentation was consistent with opinion of the Alfred neuropsychology registrar in the report of 14 May 2021. Ms James opined that there was attentional dysfunction with a predominant factor of low mood against a background of youthful concussions and possible head injuries.
At times, the pressures of protracted cross-examination were apparent. An example of that was when Mr Young became obviously confused even under examination in chief. That was when he said that he was working for another employer (Mr Hicks) on the date of the incident when that was not the case.
Additionally, in arriving at the conclusion that Mr Young was a credible witness overall, I take account of various concessions made in cross-examination against interest. Examples were as follows:
a. His concession that he found it hard working with Mr Hall, with whom he had become ‘absolutely fed up’. To my mind, that did not assist his version of events given he had said he relied on Mr Hall to report the injury.
b. His admission that there were problems with his work on the double-storey house job although he did not agree that amounted to performance concerns.
c. Mr Young agreed with the proposition that if there had been urgency to the job, as he asserted, causing him to feel under pressure, the logical thing would have been to tell Mr Brown on that day he had been injured.
d. Mr Young also made appropriate concessions regarding his prior psychological history, his extended travel and disjointed work history.
e. He agreed with Counsel for Extrordinair that his resume omitted reference to gaps or to ordinary labouring work which he explained was due to being too lazy to update the work history. I accept anyway the submission of Counsel for Mr Young that ‘window-dressing’ of a resume whilst less than commendable was not a basis for discounting credit on matters in dispute.
As for the mechanism of the incident, it was implausible, according to Counsel for Extrordinair, that a sharp-edged 60 kilogram unit in steel casing could fall or press down on Mr Young but cause no laceration injury. That was based on Mr Brown’s account of having been lacerated by a unit in a similar incident.
I am unable to accept that submission as it seems to me there would only be cuts to the head or face in the event of contact with the corners or edges of the unit. Mr Young had agreed that the edges were sharp, but not that there would necessarily be laceration. That accords with Mr Young’s account of the unit’s base either falling or coming downwards and pressing on the top of his head.
To my mind, Mr Young’s evidence was persuasive regarding there being a sense of urgency to the need to complete the job at the Kalkallo site on the Friday afternoon. I conclude that was conveyed to him either by Mr Brown on the phone or by the builders or both. His unchallenged evidence was that the job was at the ‘rough in’ stage in which there was a limited window of time during which the installation of the unit needed to occur before the next stage of construction.
On the aspect of the urgency or otherwise of the job, I did not find Mr Brown’s evidence particularly compelling or persuasive. He initially denied calling Mr Young on the phone that day saying to Counsel ‘I’m going to say no’ before then saying he may have called him, but could not recall what was said.
On the question of Mr Young’s performance and that being the basis for terminating him, Mr Brown said there was a discussion about problems with the double-storey job the week before they let him. Yet, the puttage to Mr Young under cross-examination was of those issues having arisen not the week before the incident but in the first week of his employment with Extrordinair.
Overall, I did not consider Mr Brown’s evidence greatly advanced matters. For example, he conceded that, not being on the Kalkallo site, he could not say whether the incident occurred or not. It seems to me to be of some note (although not of course of any real evidentiary weight) that he conceded having been injured himself in a similar incident and that in manually handling a 60 kilogram unit in two pairs of hands, it would not take much for there to be pressure on the person below.
Mr Brown denied that Mr Hall had made any report to him regarding the incident. It seems to me that does not of itself mean that Mr Young did not ask Mr Hall to do so as he was adamant that he had done. Whilst it is a matter of speculation only, it seems to me that Mr Hall not reporting anything to Mr Brown could be explained equally by Mr Hall feeling responsible for his part in the incident as by it not happening at all.
According to submissions of Extrordinair’s Counsel, Mr Young’s credit was damaged further by his delay in reporting the incident until his email to Extrordinair on the evening of 22 May 2019. By then, it was contended he would have learned of the termination of his employment either by email or by the mailed letter.
Mr Young had denied receiving the email saying he only learned of the termination of his employment later in the week by mail. Under cross-examination, Mr Young accepted that he might find it there were he to ‘dig into’ his emails.
On the other hand, there was no evidence that Mr Young ought to have anticipated receiving an email from his employer on the Monday nor, if his evidence was accepted about not seeing the email, regarding when the letter was mailed nor that it was sent, for example, by registered post, so there would be some certainty about receipt of the letter.
Moreover, weighing the whole of the evidence, it seems to me that Mr Young’s failure to report the incident in a more timely way was probably consistent with Dr Belleli’s impression of Mr Young. That was as recorded in her clinical note on 10 April 2019 (prior to the incident) of him having a history of running/quitting when stressed at work.
Overall, to my mind, I consider Mr Young’s explanation for the delay in reporting to be both genuine and reasonable taking into account:
a. the evidence that he had no prior expectation of his employment being terminated that week;
b. his belief that the apprentice would report the incident; and
c. waiting until after he had seen his GP on the Wednesday when he complained (according to the contemporaneous clinical note) of ‘mild pain [that] wasn’t too bad’ in the first 48 hours followed by 48 hours of ‘increasing pain’.
As I observed earlier, Counsel for Extrordinair submitted that Mr Young’s credibility was also brought into question by attending the two GP clinics a day apart which was ‘curious and unconvincing’. That was particularly the juxtaposition of the attendance on Dr Carter on 21 May 2019 with that on Dr Belleli the next day making no mention of the incident.
I do accept the submission that it was at least somewhat surprising Mr Young would tell Dr Belleli about having had some work and studying for a further plumbing qualification as well as refer to physical recreation, yet make no mention of a workplace injury the week before.
Yet, again weighing the whole of the evidence, I am unable to accept the submission of Counsel for Extrordinair that this account to Dr Belleli was to deliberately mislead her. It seems to me, on reviewing the attendances at the Star clinic prior to the attendance on 22 May 2019 (on 2 April 2019 and 10 April 2019), that Mr Young was attending that clinic in the context of a mental health review and of returning to receive some test results. On that basis, it seems to me less surprising that Mr Young would compartmentalise his mental health from a frank physical injury particularly when he had already seen a doctor about that on the day prior.
Of course, in cases of this kind, it might also be expected that Mr Young would be open to attack under cross-examination for the reverse situation. That is, had he also consulted Dr Belleli about the incident the day after seeing Dr Carter about it could be seen as ‘doubling up’ and inappropriate.
Certainly, the major ground of attack on Mr Young’s credit was his failure to make a report of the incident when he returned to the depot with Mr Hall on the day of the incident. It was submitted that Mr Young’s account of telling Mr Hall to report the incident was entirely improbable. That was because he was the leading hand and more senior of the two. Also, on his own evidence, he ‘had had enough’ of Mr Hall so it was highly unlikely he would give the task of making the report to Mr Hall, the apprentice. I have already indicated that was so and that his frustration with Mr Hall may well be a partial explanation for why Mr Young was intent on being done for the day and the week and to get home rather than going into the office with him.
Finally, in relation to Mr Hall, I find it significant that Mr Young referred to Mr Hall’s role in the incident in his initial complaint to Dr Carter on 21 May 2019 and in the circumstances in the claim form of 14 June 2019. It is true that Mr Young’s email report of 22 May 2019 he does not specifically refer to Mr Hall’s involvement, yet he does describe the injury having occurred ‘during an installation’ at the Kalkallo site. He would of course know that Extrordinair would be aware of Mr Hall working with him on that job and would be in a position to ask Mr Hall about it.
Counsel for Extrordinair submitted further that Mr Young’s credit was eroded by various inconsistencies on disputed matters in the histories to medical practitioners. Examples included:
a. The mechanism of the incident as initially recorded by Dr Carter was of the unit falling onto his head. That ‘shifted’ to describing the weight of the unit pressing down on his head (as reported in the claim form and in most other histories);
b. His prior work history was inaccurate such as telling Dr Jager he had been ‘consistently employed before the incident’ which was contradicted by Mr Young’s own evidence;
c. A misleading suggestion in some of the histories, such as to Mr Rogers and Dr Teh, that his employment was terminated because of or consequent upon his injury;
d. The omission of any report or recording to corroborate Mr Young’s evidence under cross-examination of a visible mark or bruise on his forehead after the incident. I accept that if there had been a visible mark that persisted over some days, it is likely such a detail would have been recounted at least to Dr Carter which it was not. Either there was no mark and this was a detail added under pressure of cross-examination or there was a mark which was transient only.
Of course, in assessing the medical evidence, I am guided by the principles in Pulling v Yarra Ranges Shire Council (Pulling).[5] In particular, I note the obligation to examine the whole of the medical evidence even where it may have been undermined by other evidence, including evidence that the worker may not have been fully frank with a doctor.[6]
[5][2018] VSC 248 [50] to [55] (‘Pulling’).
[6]Ibid [50].
Additionally, the Court of Appeal has also, in cases such as Philippiadis v Transport Accident Commission, referred to the need for Courts to exercise care in relying on the record of medical practitioners which are of course very often highly probative, but cannot be treated as a verbatim transcript of the entire medical attendance.[7]
[7][2016] VSCA 1 [105] – [106].
In any event, as I have found Mr Young to be an honest witness, it is of course a matter of evaluating the whole of the medical and other evidence in accordance with the guidance referred to in Pulling.[8]
[8]Pulling [2018] VSC 248.
Finally, it was submitted for Extrordinair that Mr Young was motivated to maintain his version of what happened because of his ‘vengeful fantasies’ relating to his employment being terminated and his claim rejected. That was Mr Young’s own description to Dr Lewis. Yet, according to Dr Lewis, Mr Young presented as an open and cooperative historian. Again, having observed Mr Young over several hours, that was similar to my own impression also and, whilst undoubtedly feelings of vengefulness was an inappropriate mindset held at that time, I must reject that submission.
It seems to me, weighing the evidence overall and having concluded that Mr Young was an honest witness, that the failure to report the incident is consistent with Mr Young’s evidence overall: of being a new employee trying to do his best; of having a heavily pregnant partner at home; of it being the end of day of some pressure and urgency of it being the working week; and of believing that it was enough to ask Mr Hall to report it.
For these reasons, I am satisfied that the weight of evidence supports a conclusion that the incident occurred on 17 May 2019 as claimed by Mr Young in the claim form of 15 June 2019.
Having made findings in relation to Mr Young’s credit and the incident, I now turn to firstly to injury and then causation.
Nature of Injury and Diagnosis
The initial CT scan of the cervical and thoracic spine of 24 May 2019 (seven days after injury) had shown mild degenerative change and no evidence of cervical trauma. The MRI report of 12 October 2020 demonstrated mild multi-level disc degeneration including C5/6 foraminal narrowing and a C6/7 protrusion with compression of the C7 nerve.
Mr Rogers, as initial treating surgeon, offered no specific opinion as to diagnosis in his letter to Dr Carter other than to repeat the MRI findings. Dr Ow-Young (for the plaintiff), a neurosurgeon, opined that the diagnosis was of structural injuries at C5/6 and C6/7 with symptomatic left C5 radiculopathy.
Dr Menz (for the defendant), an orthopaedic surgeon, queried whether the radiological findings coincided with the presence of left-sided radiculopathy and considered the diagnosis involved a cervical spondylosis. Nevertheless, and importantly, he opined that the changes at C5/6 and C6/7 by the time of the MRI could possibly reflect the end result of discs damaged at the time of the incident.
Similarly, Dr Ow-Young had opined that the structural changes at C5/6 and C6/7 were far more rapid than would be expected from natural degenerative processes.
I conclude that relevant to the incident on 17 May 2019 Mr Young suffered injury to the cervical spine involving aggravation or acceleration of underlying degenerative change at C5/6 and C6/7.
I further conclude that Mr Young suffered from a work-related adjustment disorder with behavioural disturbance. That was in accordance with the opinions of both psychiatrists, Dr Lewis and Dr Jager.
Causation and Significant Contributing Factor
Extrordinair had acknowledged essentially that if Mr Young’s account regarding the incident was accepted then the diagnosis and consequence of injury followed.
Having found the diagnosis of the neck condition involved aggravation of underlying and pre-existing degenerative change, the causal test for Mr Young was that employment on 17 May 2019 was a significant contributing factor to the aggravation of underlying degenerative pathology.
That was not disputed by either Counsel.
Turning briefly to the other factors that must be considered regarding ‘significant contributing factor’ in Clause 25 of Schedule 1 of the Act, certainly there was no evidence of a contrary explanation for the injury other than the incident as alleged. The only other incident was the much later assault.
Importantly, also, no other doctors or contemporaneous records identify complaints that indicate pre-existing degenerative pathology that was symptomatic.
Dr Ow-Young opined specifically that the aetiology of the C5/6 and C6/7 was caused by the incident and Dr Menz opined the incident was a significant contributing factor to the cervical spine condition.
For these reasons, I conclude that employment on 17 May 2019 was a significant contributing factor to the aggravation of underlying degenerative pathology.
Capacity
I conclude that the weight of evidence supports a finding that Mr Young had no capacity for his pre-injury duties from 18 May 2019. I conclude also on the evidence that the incapacity resulted from or was materially contributed to by employment on 17 May 2019. There was no real dispute on that issue as there was no medical opinion to the contrary on that question and Counsel for Extrordinair did not make submissions otherwise in relation to capacity.
As for incapacity beyond the second entitlement period, there was limited evidence about that but in June of 2022, Dr Menz (for the defendant) opined that there was no capacity for employment at all.
For completeness, I note there was evidence of some significant gaps in treatment as follows: no attendances at the DSM clinic between May 2019 and 9 January 2020 and then between 9 January 2020 and 7 October 2020. There were also no attendances at the Star clinic after 22 May 2019 until August 2020. Yet weighing the whole of the evidence I am satisfied that those gaps were due to factors including working for a time for Chute, financial stresses, the COVID-19 pandemic and Mr Young’s fluctuating mental health. As he described it, because nothing was changing, he felt dejected, depressed and gave up.
Statutory defence
Finally, Extrordinair relied on a statutory defence under s 22(2) of the Act that the claim was deemed not to have been made as it was lodged after he ceased to be employed. I find that defence must fail essentially for reasons already provided. I find that Mr Young could not reasonably have made the claim while employed by Extrordinair. That was given his termination without notice on the Monday after the injury and the matters to which I have already referred regarding his delay until the Wednesday and in obtaining a claim form after telephoning WorkSafe.
Conclusion
For the reasons provided, I find that:
a. Mr Young suffered injury to his neck in the nature of an injury to the cervical spine involving aggravation or acceleration of underlying degenerative change at C5/6 and C6/7 arising out of or in the course of employment with Extrordinair and also that employment (with a nominated injury date of 17 May 2019) was a significant contributing factor to the aggravation of the underlying and pre-existing condition. He also suffered from a consequential work-related adjustment disorder with behavioural disturbance.
b. Mr Young had an incapacity to perform pre-injury duties from 18 May 2019 and such incapacity resulted from or was materially contributed by the injury.
c. Mr Young has no current work capacity.
I will seek input from the parties as to final orders.
MAGISTRATE HOARE
30 September 2022
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