Zacharias v Britax Childcare Pty Ltd
[2011] VCC 1232
•31 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01398
| DOUGLAS CHRISTOPHER ZACHARIAS | Plaintiff |
| v | |
| BRITAX CHILDCARE PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 and 3 November 2010 |
| DATE OF JUDGMENT: | 31 August 2011 |
| CASE MAY BE CITED AS: | Zacharias v Britax Childcare Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1232 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation – Accident Compensation Act 1985 – serious injury – s.134AB(38)(a) and (b) – low-back injury – discussion of the principles in Grech v Orica Australia Pty Ltd (2006) 14 VR 600 and Petkovski v Galletti [1994] 1 VR 436 – pain and suffering only.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G A Lewis SC with | Grando & Breheny |
| Mr D K McIvor | ||
| For the Defendant | Mr R H Stanley | Herbert Geer |
| HIS HONOUR: |
Introduction
1 By way of Originating Motion filed on 7 April 2009, Douglas Christopher Zacharias (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for injury to his low back suffered during the course of his employment.[1]
[1] Specifically peaking in four episodes: July 2002, April 2003, May 2004 and May 2006. T 3 L 18-26.
2 The plaintiff initially sought leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act, but during the hearing of the matter, Senior Counsel for the plaintiff advised the court that leave was sought to only bring proceedings for “pain and suffering”.[2]
[2] T 124 L 18-20
3 The plaintiff gave evidence and was cross-examined and both parties tendered various documents.[3]
[3] See Annexure A
Relevant Legal Principles
4 The court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[4]
[4] S.134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act which reads:
“Serious injury means-
(a) permanent serious impairment or loss of a body function … .”
6 The part of the body said to be impaired for the purpose of paragraph (a) is the low back.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
[5] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at para [11]
[6] Barwon Spinners (op. cit.) at para [33]
[7] S.134AB(38)(j) of the Act
(a) “the injury” suffered by him arose out of or in the course of or due to the nature of his employment with the defendant on or after 20 October 1999;[5] (b) “the injury” and the resultant impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[6] (c) “the consequences” of the back impairment in relation to “pain and suffering” are, “when judged by comparison with other cases in the range of possible impairments…may be fairly described as being more than significant or marked, and as being at least very considerable”.[7] 8 In determining the application, the Court:
(a)
must make the assessment of serious injury at the time the application is heard;[8]
(b)
notes that it has been observed that the question of whether any injury satisfied the definition of “serious injury” is largely a matter of impression and value judgment;[9]
(c)
must give reasons which are extensive and complete as the court will give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.[10]
[8] S.134AB(38)(j) of the Act
[9] Kelso v Tatira Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at para [67]
[10] S.134AB of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at paras [89], [92]
The Issues
9 Counsel for the defendant informed me at the beginning of the application that a distinct issue arose as to the retained capacity for employment of the plaintiff. When queried as to whether he would make any submissions on “pain and suffering”, I was informed that although there was an “accepted injury”, such injury was an exacerbation of an earlier degenerative back problem and issues would arise as to whether the extent of any exacerbation gave rise to consequences which would satisfy the requisite test for “serious injury”.[11]
[11] See Petkovski v Galletti [1994] 1 VR 436
10 Of course, the final addresses concentrated on the “pain and suffering” consequences given that the plaintiff no longer sought to prosecute a claim for leave to bring common law procedures for “pecuniary loss damages”.
Evidence of the Plaintiff
11 The Court refers to the affidavits sworn by the plaintiff on 5 November 2008,[12] which I shall refer to as the “first affidavit”, 30 October 2009,[13] which I shall refer to as the “second affidavit”, and on 15 October 2010,[14] which I shall refer to as the “third affidavit”.
[12] See Exhibit A at page 41 of the PCB
[13] See Exhibit A at page 49 of the PCB
[14] See Exhibit A at page 51a of the PCB
12 The plaintiff swore that the contents of those affidavits were “correct”.[15] He did make reference to paragraph 6 of the third affidavit and explained that the contents of that affidavit to mean that he takes two Digesic and two Panadol every day and then, depending on his pain level, Tramadol may be taken.
[15] T 27 L 24
13 By way of his first affidavit, the plaintiff gave the following pertinent evidence:
•
He is a forty-one-year-old (born 8 September 1969) single man who lives with his mother and younger brother. He was educated to Year 10 level at St Albans Technical School.
• On leaving school he had the following employment:
ƒ
from approximately 1986 to 1989, he was employed as an apprentice cabinet maker with MSM Cabinets of Sunshine and completed three of the four years of the apprenticeship;
ƒ he left the apprenticeship and went to South Australia “for a while”; ƒ
from approximately June 1993 to 1996, he was employed as a machine operator with San Remo Macaroni Company in Windsor, South Australia;
ƒ for approximately one month in 1996, he was employed by Moderline
Furniture, Sunshine;ƒ
from approximately January 2001 to 2006, with “various gaps”, he was employed for short periods as a casual part-time kitchen steward at Telstra Dome by AVS Catering Pty Ltd.
• He commenced employment with the defendant as a forklift operator/storeman in mid-1996 and remained until December 1996. He resumed in the same capacity in 1997 on a full-time basis. • His normal working hours were from 7.30 am to 4.00 pm, Monday to Friday inclusive, with occasional overtime. • He describes his work duties in the following terms: “... I was required to operate electrical picking machines and forklifts. The work was often strenuous and physically demanding. Goods such as prams, pushers and car seats were located in racks of varying heights. I was required to obtain goods from the racks using the high rise picking machine. I would drive the picking machine to the high rise racking after putting the safety harness on and commence picking the required product. When I arrived at the location, I could pick from the picker cabin, but when there was not stock close by, I would have to stretch myself out to reach the stock which required me to actually place my foot outside the picker and onto the location rack to enable me to reach the particular product. I would then place the picked product item onto a pallet at the rear of the high rise picker. To do this I would have to twist round and bend over to place the item on the pallet. As more and more items were placed on the pallet, it became very hard to manage the task. It required me to fully stretch upwards to get the last items on. I would then have to twist and stretch at the same time to achieve this.
Further, I was required to assist in the manual unloading of good from containers. Some of the items which had to be manually lifted were quite large, such as cartons containing 4 pushers, which would weigh approximately 20 kilograms and were often about 5' long by 2' wide. At some stage conveyors were introduced. However, the cartons still had to be lifted onto the conveyors. Generally the work involved quite a lot of lifting, bending, twisting and working in awkward positions.”[16]
[16] See Exhibit A at pages 43–44 of the PCB
• On or about 22 or 23 July 2002, he suffered injury during the course of his employment. He describes the occurrence of such injury in the following terms: “At the time I was picking orders and I was on the third level rack. I had one foot on the picker and the other foot on the pallet in the rack. I stretched forward to pick up a box containing a car seat and as I picked up the car seat I felt a pain in my lower back. I initially continued with my work following the incident as I thought that it would pass and at that stage the pain was not too bad. For the next 2 or 3 days I continued working. However, the pain in my back increased. I had difficulty at home sitting in a chair and I had to lie on a mattress on the floor when sleeping and my girlfriend assisted me with dressing. I subsequently reported my back pain to management.”[17]
[17] See Exhibit A at page 44 of the PCB
•
On or about 29 July 2002, he attended his general practitioner, Dr Tan, who prescribed painkilling and anti-inflammatory medication, physio- therapy, and arranged for him to undergo an x-ray and later a CT scan. Dr Tan initially provided light-duties certificates, and after a few days off work the plaintiff returned performing light duties, putting labels onto boxes and paper work. After a few months of such duties, he returned to his normal duties.
• The plaintiff underwent the CT scan on 21 September 2002. •
When performing his normal duties, the plaintiff continued to have pain, stiffness, and limitation of movement in his low back radiating into his leg, and on or about 3 April 2003 he suffered “an exacerbation of my back injury” and was treated with painkilling and anti-inflammatory medication by Dr Tan.
•
The plaintiff had some days off work and then returned to normal duties with continuing difficulty, and on 19 April 2006 Dr Tan arranged for him to undergo a further CT scan of his lumbar spine, after which modified duties were recommended.
•
The defendant terminated his employment on 2 May 2006 because of “multiple factors, including having too many days off work and late arrivals and early departures from work”.[18]
•
Dr Tan arranged for the plaintiff to undergo an MRI scan of his lumbar spine on 15 May 2006, and subsequently referred him to the neuro- surgeon Mr Brazenor in July 2006.
•
Mr Brazenor recommended exercises including walking, and later Dr Tan referred the plaintiff to a further neurosurgeon, Dr Bittar, who recommended surgery, which was undertaken on 5 September 2006 at the Epworth Hospital, Box Hill.
•
The surgery improved his left-leg pain, but he continued to have back pain and stiffness and limitation of movement, for which he was prescribed painkilling and anti-inflammatory medication, and subsequently physiotherapy and massage on a daily basis.
•
As at the date of his first affidavit (5 November 2008), the plaintiff describes having limitations of activity involving heavy lifting or repeated bending or twisting, and sitting and standing for long periods. He continued to see Dr Bittar and Dr Tan, and his medication included Indocid, Digesic and Panadeine Forte. Furthermore, he was undergoing physiotherapy which had been extended to one visit per month and also massage weekly. Furthermore, he performed his own hydrotherapy three or four times a week and performed exercises at a gymnasium.
•
He deposes that when he was a schoolboy he suffered a whiplash injury when a passenger of a motor vehicle, but recovered from that injury. In particular, he deposes that from time to time he had suffered some back pain. In particular, he notes:
ƒ In or about 1996, he was treated by a chiropractor, Dr Mitrevski, and
underwent a CT scan of his back at the Western Hospital.ƒ He had further episodes of back pain in or about 1998 and late 2001
and early 2002 for which he was treated by his general practitioner.ƒ He had an x-ray of his low back in 1998. •
He believes that he made a “good recovery” from such episodes of back pain, which were “mild” compared with the pain which resulted in his back operation in 2006.
•
He also suffered a neck injury during the course of his employment with the defendant on or about 20 September 2000, and “on occasions” such neck pain would radiate down to his back.
•
He has also been diagnosed with an enlarged liver and spleen and a bowel disorder, which have been reasonably well controlled.
•
He describes his limitations because of his back injury in the following terms:
[18] See Exhibit A at page 45 of the PCB
“By reason of my injuries I am now limited at home with activities such as mowing the lawns, gardening, and performing maintenance tasks. I have also been very limited with activities such as indoor and outdoor cricket and fishing. I have only recently obtained my driver’s licence. I am able to drive; my vehicle is equipped with power steering and automatic transmission. However I do have increased symptoms in my back if I attempt to drive long distances. I have also had difficulties sleeping. However, this has improved somewhat. Outings to movies, restaurants, picnics, barbecues and visits to friends and relatives have become limited. My mother usually does the cleaning, cooking and housework. At times I get ‘down in the dumps’ by reason of my back injury. However, I try to cope as best I can and I have not been referred to a psychiatrist or psychologist. I continue to play pool. However, I do suffer limitations by reason of my back injury.”[19]
[19] See Exhibit A at pages 47–48 of the PCB
14 By way of his second affidavit, the plaintiff gave the following pertinent evidence:
• He has ongoing symptoms and limitations, and also suffers from “pins and needles in both feet and numbness in the left leg”.[20] • He continues to attend Dr Tan at least once a month, and the medication varies depending on the severity of the symptoms, but does include Indocid and Digesic, together with Panadol and Panadeine from time to time. • In particular, he describes his limitations in the following way: [20] See Exhibit A at page 50 of the PCB
“... my brother now usually does the garden and maintenance tasks and mows the lawns. I am now very limited or unable to play indoor and outdoor soccer with a team and socially; repetitive ten pin bowling and recreational golf and tennis. Prior to suffering my back injury, I used to assist my mother with vacuuming and lifting the heavy parcels when shopping. I am now very limited with these activities. I have taken up playing poker which I enjoy very much and I continue to play pool. However, I do have limitations bending over. I follow the Brisbane Lions and am now limited in attending AFL football matches. With respect to my fishing, I used to fish with my uncle and friends in areas such as Apollo Bay and Lorne. I would fish off the piers and also would engage in surf fishing with large rods.”[21]
[21] See Exhibit A at pages 50–51 of the PCB
15 By way of his third affidavit, the plaintiff gave the following pertinent evidence:
•
He suffered increased back pain in May 2004 as a result of heavy, awkward and strenuous work and made a WorkCover claim for which he was off work for about one or two weeks, and was treated by Dr Tan with painkilling and anti-inflammatory medication.
•
He suffers from the various symptoms and limitations described in his earlier affidavits, and continues to suffer pain in his low back, together with “severe spasm type pains, usually a couple of times a day”. He also has “numbness and tightness in both buttocks together with some tingling” and has “numbness in the toes of each foot”.[22]
•
As at October 2010, he was taking medication as described in paragraph 12 of these Reasons.
•
He underwent a nerve-root injection arranged by Dr Bittar in April 2010 and had some limited mild improvement.
•
On 30 July 2010, he had an operation for removal of a bunion from his foot, which has been reasonably successful.
•
In or about January 2009, he completed a 2 to 3 week course of hospitality and gaming, and in August 2009 he completed a 3 week security officers’ course.
• In particular, he describes the following limitations: [22] See Exhibit A at page 51b of the PCB
“I do have difficulty putting jeans and trousers on, and I usually have to hold onto something as I do this. I also often have difficulty putting my shoes and socks on. With respect to 10 pin bowling, I did play competitively and socially. Also I played pool competitively and socially. However, I now only play socially. I have a girlfriend who lives in Morwell and I do find travelling difficult and usually catch the train rather than drive. Sexual relations are now impaired. Whilst I was undertaking the gymnasium programs, I did get back to bike riding and slow jogging for short periods. However such activities are now increasingly difficult because of back pain. I continue to get depressed and anxious as a result of my back injury from time to time. Earlier this year I did see a psychologist at the Sunshine Medical Centre and had about 3 visits which provided me with some short term assistance.”
16 In his first affidavit, the plaintiff made reference to performing casual part-time steward work at the Telstra Dome over the period from January 2001 until 2006. Such work involved putting glasses onto a container which was then placed on a conveyor that fed into a dishwasher. He also performed mopping and cleaning up of the kitchen at the end of the evening. He describes such work as “light”. Furthermore, the plaintiff makes reference in his second affidavit to assisting his girlfriend in March 2008 by performing light work in her fish and chip shop for a period of approximately two days on separate weekends.
The Medical Evidence relied on by the Plaintiff
17 The plaintiff relies on the following medical evidence from treating doctors and other health professionals:
(a)
The treating general practitioner Dr Cesar Tan who has provided reports dated 29 January 2008,[23] 26 October 2009,[24] 25 October 2010.[25]
I have also been supplied with the medical records of Dr Tan.[26]
[23] See Exhibit A at page 52 of the PCB
[24] See Exhibit A at page 55 of the PCB
[25] See Exhibit A at page 56a of the PCB
[26] Refer to Exhibit B
[27] See Exhibit A at page 613 of the PCB
[28] See Exhibit A at page 614 of the PCB
[29] See Exhibit A at page 616 of the PCB
[30] See Exhibit A at page 621 of the PCB
[31] See Exhibit A at page 626a of the PCB
(b) A treating chiropractor, Dr Natalie Morgan, who has supplied a report dated 16 September 2002.[27] (c) A treating physiotherapist who has supplied a report dated 20 September 2002.[28] (d) The treating neurosurgeon, Dr Richard Bittar, who has supplied reports dated 20 July 2007,[29] 9 November 2009,[30] and 11 October 2010.[31]
18 The plaintiff has also been medico-legally examined by the neurosurgeon Mr Geoffrey Klug on 14 October 2009[32] and on 18 August 2010.[33]
[32] See report dated 19 October 2009 in Exhibit A at page 627 of the PCB
[33] See report dated 23 August 2010 in Exhibit A at page 631a of the PCB
19 Dr Tan reports that the plaintiff consulted him on 29 July 2002 complaining of low back pain which he stated had started approximately one week prior as a result of lifting heavy boxes at work. Dr Tan noted that on examination there was tenderness at L4-L5, a reduced range of movement, but no neurological findings or negative straight leg raising. He arranged an x-ray of the lumbosacral spine which showed L4-L5 disc space narrowing, and a CT scan of the same area showed posterior disc bulging at L4-L5 and L5-S1.
20 Dr Tan made a diagnosis of discogenic and posterior bulging of the lumbosacral spine. He arranged for the plaintiff to be put on light duties, and notes that he ultimately returned to normal duties.
21 Dr Tan also reports that the plaintiff developed another episode of pain in his lower back on 4 April 2003 and on 19 April 2006. Dr Tan was of the opinion that both these episodes of pain were “exacerbations” of his previous injury.
22 An MRI scan of the lumbar spine was done and showed broad-based disc herniation at L4-L5 compressing the thecal sac and compromising the left side L5 nerve root. Dr Tan noted that the plaintiff’s back pain worsened, associated with left limb pain and change of sensation, and ultimately he came to spinal surgery in September 2006.
23 In particular, Dr Tan opines:
“Given the nature of his job, which consists of heavy lifting and repetitive bending of his back, I believe that his employment plays a significant role to his injury.
24 In his last report, Dr Tan notes that the plaintiff continues to experience pain in his low back as a result of the work injury in July 2002 and the continued work from July 2002 to April 2006. Dr Tan was of the opinion that the plaintiff remains unfit for his pre-injury duties, and that he is “totally unfit for any type of employment”. Furthermore, Dr Tan notes that he is unable to lift and perform repetitive movements in his low back, and that as a result of this, his life has been “severely affected” with an inability to do all the sports that he performed prior to his injury.
25 Dr Bittar initially consulted with the plaintiff on 31 July 2006, at which time he obtained a history that he injured his low back in 2002 when “stretching forwards to retrieve a box”. An MRI of the lumbar spine performed on 15 May 2006 demonstrated L4-5 degeneration and disc bulging and a left-sided L5-S1 paracentral disc prolapse which was large and compressing the left S1 nerve root.
26 Dr Bittar made a diagnosis of left S1 radiculopathy secondary to L5-S1 disc prolapse, and recommended surgery which was undertaken on 5 September 2006 consisting of a left L5-S1 partial hemilaminectomy, microdiscectomy and nerve-root compression.
27 When reviewed on 15 February 2007, the plaintiff did not complain of any leg pain and had minimal low back discomfort.
28 Dr Bittar considered that the plaintiff had sustained a work-related L5-S1 intervertebral disc prolapse with left S1 radiculopathy which required surgery. Further, Dr Bittar was of the opinion that the plaintiff was unfit for his pre-injury employment and that such condition is permanent and a direct consequence of the work-related L5-S1 disc injury. Dr Bittar also noted that as a consequence of his injury he is now unable to play cricket, soccer or 10-pin bowling.
29 In his report dated 9 November 2009 Dr Bittar notes earlier episodes of low- back pain – some chiropractic treatment in 1996, reviewed by his general practitioner in 1998, 2001, and 2002, but notes that from each of these episodes he made a good recovery, and such episodes of pain were far less severe than that experienced in July 2002. Furthermore, he obtained a history from the plaintiff that he does not recall experiencing any sciatica with any of the earlier episodes of pain.
30 In particular, Dr Bittar states in relation to causation:
“In my opinion, his employment has been a significant contributing factor. Specifically, the injury which occurred in July 2002, and continuing work from July 2002 to April 2006 have been significant contributing factors to his current condition. In particular, the repetitive bending and heavy lifting, as well as the awkward physical manoeuvres that he was required to undertake in order to retrieve and position large objects, have played a significant role”.[34]
[34] See Exhibit A at page 623 of the PCB.
31 When seen by Dr Bittar on 27 March 2009, the plaintiff reported a flare-up of his low back pain and left sciatica which followed the cessation of his WorkCover-funded gymnasium program. A CT scan of the lumbosacral spine on 26 February 2009 demonstrated a broad-based disc bulge at L4-5 and L5- S1, and according to Dr Bittar there may have been “some irritation of the left S1 nerve root at the left L5-S1”. At that stage he was taking Indocid and Digesic and experiencing low back pain, together with intermittent left hamstring discomfort.
32 Dr Bittar recommended that the plaintiff be further investigated with an MRI of his lumbosacral spine and also undergo some facet-joint blocks to determine whether those structures were contributing to his ongoing symptoms.
33 Dr Bittar considered that the plaintiff was permanently incapacitated for his pre-injury work and would be fit only for suitable duties on a part-time basis. Furthermore, his ability to socialise, engage in domestic activities, and in particular to engage in recreational activity involving sport, have all been severely affected.
34 In his last report, Dr Bittar notes that the MRI scan of the lumbosacral spine performed on 11 December 2009 demonstrated satisfactory appearances at the L5-S1 operated level, and there was no recurrent disc prolapse at that level. He did note that the plaintiff had a small left paracentral disc extrusion at L4-5 which was compressing the left L5 nerve root. Examination on 3 February 2010 revealed that the straight leg raising was limited on the left, but there were no other lower limb neurological deficits.
35 Dr Bittar was of the opinion that the current condition of the plaintiff was due to a combination of his previous L5-S1 intervertebral disc injury as well as the intervertebral disc prolapse at L4-5. He recommended a nerve sheath injection rather than any surgery.
36 He considered that his low back injury would impact on his social life, recreational and domestic activities, together with his capacity for employment.
37 In his first report, Mr Klug states, in part:
“It appears that prior to this person injuring his back in July 2002 he did have a preceding history of a back disorder. Such was obviously of an extent to warrant a number of investigations with the results of such being described above. These studies did reveal degenerative changes in his lumbar spine, mainly at the L4-5 and L5-S1 levels and I believe that those findings would have been consistent with his complaints described at or about those times.
It would appear likely from the analysis of the imaging studies that there was a substantial progression of his low back disorder between the CT scan undertaken on 21/09/02 and the MRI scan performed on 15/05/06. In particular there would appear to be a progression of changes predominantly at the L5-S1 level.
Although he did not describe any further specific incidents to me I did note in his affidavit that there was an aggravation of his condition in April 2003. It is possible that at or about that time there may have been a progression of the changes subsequently shown on the MRI scan. It is not possible to be precise in regard to this conclusion.”[35]
[35] See Exhibit A at pages 630-631 of the PCB
38 Although Mr Klug did find on examination some neurological deficits, he considered those to be non-work-related (for example, in his feet), and furthermore was of the opinion that there was no evidence to suggest he was suffering from a radiculopathy. He did consider that the plaintiff, although incapable of performing certain types of employment, would be capable of performing work at a bench top where he was not required to bend or lift on a repetitive basis. He also considered that his low back “disorder” and the resultant symptoms to some extent interfered with his enjoyment of activities of daily living, and he would be unable to participate in some recreational activities, particularly of a sporting nature.
39 Mr Klug again saw the plaintiff on 18 August 2010 and considered that there had been little or no change in his condition since the previous examination. He noted that the plaintiff continues to suffer from intermittent low back pain of variable severity and also continues to complain of some impaired sensory perception in his left foot region.
40 Mr Klug was still of the opinion that the plaintiff had suffered from an aggravated lumbar spondylosis which had not responded in a satisfactory way to previous surgery, and was also still of the opinion that the specific incident occurring in July 2002 and his subsequent employment would be considered a significant contributing factor in regard to his injury and his current condition.
The Medical Evidence of the Defendant
41 The defendant relied on the medical of the following doctors:
(a)
The late Mr Robert Marshall, who examined the plaintiff on 21 August 2002,[36] and on 17 February 2009.[37]
(b)
The orthopaedic surgeon, Mr Brian Davie, who examined the plaintiff on 29 February 2003.[38]
(c)
The general surgeon, Mr Michael Troy, who examined the plaintiff on 28 May 2003.[39]
(d)
The general surgeon, Mr Edward Schutz, who examined the plaintiff on 6 July 2004[40] and made a workplace assessment on 10 June 2004.[41]
(e)
The general surgeon, Mr J Sinha, who examined the plaintiff on 24 May 2006.[42]
(f)
Reports from Dr Bittar to the agent of the defendant dated 30 October 2006 and 15 February 2007.[43]
(g)
The orthopaedic surgeon, Mr Michael Shannon, who examined the plaintiff on 11 September 2007.[44]
(h)
The specialist occupational physician, Dr James Rowe, who examined the plaintiff on 25 February 2008.[45]
(i)
The orthopaedic surgeon, Mr Steven Leitl, who examined the plaintiff on 29 August 2008.[46]
[36] See report of same date in Exhibit 3 at page 1, DCB
[37] See report of same date in Exhibit 3 at page 3, DCB
[38] See report dated 30 January 2003 in Exhibit 3 at page 7, DCB
[39] See report dated 2 June 2003 in Exhibit 3 at page 9, DCB
[40] See report dated 12 July 2004 in Exhibit 3 at page 14, DCB
[41] See report dated 28 July 2004 in Exhibit 3 at page 21, DCB
[42] See report dated 30 May 2006 in Exhibit 3 at page 24, DCB
[43] See Exhibit 3 at pages 30–32, DCB
[44] See report dated 17 September 2007 in Exhibit 3 at page 33, DCB
[45] See report dated 25 February 2008 in Exhibit 3 at page 37, DCB
[46] See report dated 1 September 2008 in Exhibit 3 at page 41, DCB
Mr Leitl examined the plaintiff to assess the whole person impairment of the plaintiff.
[47] See report of same date in Exhibit 3 at page 48, DCB
[48] See report of same date in Exhibit 3 at page 60(b), DCB
(j) The orthopaedic surgeon, Mr Michael Polke, who examined the plaintiff on 25 June 2009[47] and on 10 August 2010.[48] 42 When initially seen by Mr Marshall (approximately one month after the occurrence of the injury in July 2002), he obtained the history that on 22 July 2002 the plaintiff, when wearing a safety harness, stretched out to get a parcel from a high shelf, and in doing so suffered a twinge of pain in the midline of his low back. At that examination, the plaintiff complained of worsening symptoms and that he cannot lift, cannot play any sort of sport, is unable to sit in any comfort, and accordingly he cannot drive a forklift. The pain was in his low back extending into his right buttock. Mr Marshall was of the opinion that the plaintiff had suffered a musculoligamentous strain on 22 July 2002 (if his story was accepted) and there was no clinical evidence to suggest that he suffered a prolapsed disc, and no signs of nerve root pressure.
43 When seen six-and-a-half-years later, he obtained the history that the plaintiff had undergone surgery on 5 September 2006. At that time, Mr Marshall also had information in relation to his earlier back condition. With such information, he was of the opinion that the episode of back injury in July 2002 appeared to be a quite minor incident, only involving stretching, and that he had been suffering from progressive deterioration of the discs in his lumbar spine since the mid-1990s.
44 In particular, Mr Marshall was of the opinion that the incident in July 2002, being seemingly a very minor matter, could not have produced any significant injury, and that indeed, x-ray films taken after that incident did not show any prolapse, which had developed much later. In essence, he was of the opinion that the plaintiff’s employment with the defendant was certainly a contributing factor in the sense of producing symptoms, but he did not believe that there had been any contribution to the underlying pathology, which was quite severe, to which there had been insignificant contribution by any work.
45 Mr Brian Davie was of the opinion that the plaintiff had suffered a “soft tissue musculoligamentous injury to the lumbar spine” which was consistent with a work incident on 22 July 2002. When seen by Mr Davie, he was of the opinion that the plaintiff could return to pre-injury employment.
46 Mr Troy was of the opinion that the plaintiff had suffered a soft tissue injury to his lower lumbar spine to which his employment was a significant contributing factor, in that his employment involved not only the incident in July 2002 (perhaps in the history August 2002) but also the general work involving bending as an order picker and getting on and off the forklift.
47 When initially seen by Mr Schutz (July 2004), he was of the opinion that the plaintiff had suffered a number of incidents of back pain during the course of his employment with the defendant and that such symptoms lasted for a number of weeks and recovered. X-rays and a CT scan undertaken in 2002 only showed minor degenerative abnormalities at L4-5 and L5-S1. He considered the plaintiff capable of his pre-injury work.
48 Mr Sinha was of the opinion that the plaintiff suffered from a disc prolapse which was sustained, in all probability, during the initial injury of July 2002 and progressed due to subsequent work with the defendant. In this respect, Mr Sinha notes that the CT scan of 11 April 2006, which demonstrates the disc prolapse, occurred before his cessation of employment on 2 May 2006.
49 Mr Shannon was of the opinion that the plaintiff was suffering from multi-level lumbar disc degeneration, and that he had suffered a significant lumbosacral disc prolapse, and on the history provided by the plaintiff the incident in 2002 was a “significant injury to his back”.
50 Dr James Rowe diagnosed the plaintiff, and considered that the contributing factors to his present condition were the injury that occurred at work (presumably the July 2002 injury) and the surgery that he had undertaken. At that time (February 2008), the plaintiff had persistent pain in his back and some minor symptoms in the left leg.
51 Mr Leitl was of the opinion that the plaintiff suffered persistent lumbosacral dysfunction due to L4-5 and L5-S1 disc bulge and protrusion which has been surgically treated with no evidence of a residual radiculopathy.
52 When initially examined by Mr Polke (25 June 2009), he diagnosed the plaintiff to be suffering from a lower lumbar disc prolapse which had been treated by decompressive surgery. Furthermore, he considered that such injury was likely to have been caused during his employment with the defendant, and in particular the incident on or about 22 August 2002.[49]
[49] Some histories have been obtained of 22 July 2002 and others of 22 August 2002
53 Mr Polke was of the opinion that he had a capacity for pre-injury employment as long as he avoided repeated bending and stooping or heavy lifting. He noted that he continued to live with his mother, makes his own bed, helps his mother to cook sometimes, and does some light house chores and light trolley shopping. Although he does not work in the garden or perform house maintenance, he goes to a poker league two nights a week and runs a snooker competition on another night each week.
54 When last seen by Mr Polke on 10 August 2010 he had available the MRI taken on 1 December 2009, which he considered showed multiple degenerative changes, particularly at the L4-5 level where there was a broad- based disc bulge and a tiny left paracentral disc extrusion which mildly displaced and effaced the left descending L5 nerve.
55 In particular, he considered the plaintiff to be suffering from degenerative disc disease particularly at the L4-5 level (consistent with the MRI taken on 1 December 2009). Furthermore, he was of the opinion that the back condition of the plaintiff has probably resulted from recurrent lifting over the years and particularly the incident on 22 August 2002 and his subsequent spinal surgery.
Sundry Documentation
56 The plaintiff relies on various claims for compensation made under the provisions of the Accident Compensation Act in support of the occurrence of injury. The claim forms are dated 5 August 2002 in respect of the injury on 23 July 2002,[50] 29 April 2003 in respect of the injury on 4 April 2003,[51] 1 June 2004 in respect of the injury on 19 May 2004,[52] and on 2 May 2006 in respect of injuries described as “gradually over time”.[53] Each of the claims were accepted.
[50] See Exhibit A at page 1 of the PCB
[51] See Exhibit A at page 7 of the PCB
[52] See Exhibit A at page 11a of the PCB
[53] See Exhibit A at page 12 of the PCB
57 Furthermore, in or about April 2008 the plaintiff made a claim for lump-sum compensation under s.98C of the Act in relation to a low back injury with referred pain to both legs said to have occurred on 19 April 2006. Such claim was accepted by way of letter dated 10 September 2008 from the agent of the defendant.[54]
[54] See Exhibit A at page 14a of the PCB
The Cross-Examination of the Plaintiff
58 Under cross-examination, the plaintiff gave the following pertinent evidence:
•
Although he did not know what caused his back pain in 1996, he accepted that his back was in a “bad way”, prevented him from completing his work adequately, and interfered with his ability to play indoor bowling and indoor and outdoor cricket.[55]
•
After being referred to some notes taken at the Western Hospital, the plaintiff accepted that he had left sciatica in 2000.[56]
•
As a result of getting pains in his upper body, the plaintiff underwent a variety of tests including blood tests, an ECG, and an echocardiogram. As a result of these tests he was also referred to a specialist as to whether or not he was suffering from Marfan syndrome.
•
The plaintiff also has suffered from a longstanding cough and some degree of respiratory problems which required testing in 1988.
•
The plaintiff also suffers from highly arched feet, which causes problems when he goes about his daily living.
•
The plaintiff accepted that he stopped playing competitive sport in his 20s, at which time he was involved in outdoor and indoor cricket, outdoor and indoor soccer, 10-pin bowling, snooker and billiards.
•
The plaintiff was asked a variety of questions as to when he actively ceased performing various types of sports as a result of any of the other medical conditions that he was suffering. In particular, he was shown a purported statement made by him on 22 August 2002 following his first claim for compensation.[57] In particular, it was put to the plaintiff the following part of the statement, which reads:
[55] See T 28 L 8–26
[56] See T 31 L 14–17
[57] See Exhibit 1
“I used to play soccer about 10 years ago and played tenpin bowling which I stopped about two years ago. I played competition pool which is 8 ball and American 9 ball. I play at a centre at Sunshine and the competition is just my local area.”
• The plaintiff accepted that it was his statement made in 2002,[58] and although the plaintiff seemed to equivocate in his answers, ultimately accepted that the statement was correct in describing him stopping soccer about ten years before the statement and ten-pin bowling approximately two years before the statement.[59] However, later in his evidence the plaintiff suggested he was able to do ten-pin bowling and soccer prior to his work injury, and could not recall why he said in his statement that he had given the ten-pin bowling away years earlier. • Ultimately, the plaintiff explained his situation in the following terms: [58] See T 40 L 22-23
[59] See T 42 L 19-23
“A: I ceased playing the competitive sport or social sport because I wasn’t able to compete at the level that I was competing at, because of the injury.
Q: When you say the injury, you’re talking about the work
injury?---
A: Yes.
Q: Yes. Now, when you say competitive sport, what are youreferring to there?---
A: At a level where I can - - - Q: What sport though?--- A: Bowling, cricket, soccer, golf. Q: Now, does that mean – you only tell me if I’ve got this right – does that mean as far as you’re concerned you were playing that competitive sport right up to when the work injury happened? I don’t mean to the day before, but - - -
A: Oh no. Yes. Q:
- - - but in general terms. Like, if you had a work injury today you might have been playing tenpin bowls last Friday night or something - - -?---
A: Yes.”[60]
[60] See T 53 L 23-T 54 L 7
•
It was put to the plaintiff that the medical notes reveal complaints of low back pain to Dr Tan on 14 December 2001, 4 February 2002, 4 March 2002, and 8 April 2002. The plaintiff was then asked:
“Q:
What I want to suggest to you is that, you’d had constant low back pain in those months that we covered. So from 14 December 2001 through to April 2002, you have been in back pain consistently?---
A: Yes. Q: Is that correct? A: ---Yes.”[61] [61] See T 57 L 20–24
•
When asked what his back was like immediately in the week or so leading up to the incident on 22 (or 23) July 2002, the plaintiff said “It was okay, but I was limited in things that I could do, or in movement.”[62]
•
The plaintiff gave evidence that after the incident in July 2002 the restriction of his back was “far more”.[63]
•
Prior to the episode of back injury in July 2002 the plaintiff accepted that he had difficulty attending work because of back pain and that management were becoming a bit cranky because of his absenteeism. He accepted that on or about 30 April 2002 he received a written warning, being a final written warning, in relation to absences from work.
•
He received another warning in or about February 2006 about absenteeism, which he explained was in part due to his back, but sometimes for his other medical conditions.
•
The plaintiff received weekly payments of compensation from when he ceased work on 2 May 2006 up until 1 December 2008.
•
The plaintiff gave evidence that he was on a Newstart allowance and also has the advantage of a Health Care card.
•
The plaintiff clarified that on some days he may only take two Digesic, and if that does not help he will add Panadol as well. If he did take a tramadol (which according to him was rarely), he would not take any other medication on that day.
•
Since being off work, the plaintiff has obtained his driving licence and he has access to his late father’s car.
•
The plaintiff travels by train to Morwell most weekends to spend time with his girlfriend and will on occasion extend weekends for a few days.
•
The plaintiff has attended poker nights at the St Albans Footy Club on a Monday night and at the Kealba Hotel on a Thursday and Friday night. At present, the plaintiff only attends the hotel at Kealba and has not been to the St Albans Footy Club poker tournament for at least four or five months.
•
The plaintiff plays online poker, and games could last for an hour and a half or up to less than an hour, depending on how fast players are eliminated.
•
The plaintiff plays 8-ball pool, and initially ran a competition at the Kealba Hotel on Thursday and Friday nights. The competition arranged by the plaintiff extended over the summer months of 2009.
•
The poker nights and the 8 ball nights at the Kealba Hotel do not clash, because when the poker started there the 8 ball competition had ceased.
•
The plaintiff accepted that he obtained enjoyment out of playing pool and poker, and goes to the Kealba Hotel on a Saturday night when not playing pool or poker for a drink and to socialise.
•
The plaintiff was of the view that he could not perform any work, particularly work of a physical nature.
[62] See T 61 L 10–13
[63] See T 62 L 31
59 Under re-examination, the plaintiff described the back pain that he had in July 2002 as “far more severe” than any earlier back pain. Furthermore, the plaintiff said that prior to July 2002 he enjoyed surf fishing, and has been unable to perform that activity since.
60 The plaintiff also gave evidence in re-examination that he has difficulty with sleeping, which is related to his pain, and over any particular week he would get woken up once or twice a week by back and leg pain.
61 The plaintiff also gave evidence that he has been referred by Dr Bittar to a pain-management specialist and has undergone two rounds of injections to help relieve his pain.
Analysis of the Evidence
62 The plaintiff is a forty-one-year-old single man who was employed by the defendant initially in mid-1996 until December 1996 as a forklift operator/storeman, and then in the same capacity from 1997 on a full-time basis. I find that such work was often quite strenuous and physically demanding, involving bending, stretching, and lifting various objects. Furthermore, the plaintiff was required to get on and off a forklift frequently.
63 The plaintiff alleges that he suffered a compensable low-back injury during the course of his employment, and that such compensable injury is a “serious injury” within the meaning of the Act.
64 In particular, he also relies on specific incidents of injury on or about 22 or 23 July 2002, April 2003, May 2004 and in or about May 2006, and various claims for compensation were made for such incidents of injury which were variously described on occasion as “exacerbations”. Such claims were accepted by the defendant. I also note that a lump-sum claim under s.98C of the Act in respect of a low-back injury said to have occurred on 19 April 2006 has been accepted by the agent of the defendant.
65 In his affidavit material, the plaintiff admits to experiencing low-back problems from about 1996 when he attended a chiropractor and underwent a CT scan, and further episodes of back pain in or about 1998 and late 2001 and early 2002 for which he was treated by his general practitioner. Under cross- examination, he accepted that from 14 December 2001 through to April 2002 he had been in back pain consistently, and prior to the incident in July 2002 he accepted he was limited in some things he could do.
66 In such circumstances, counsel for the defendant submitted, although accepting that there was a compensable low-back injury in or about July 2002,[64] that such injury was not a “serious injury”, as it was an aggravation of a pre-existing back condition, and the extent of the aggravation did not satisfy the test as set out in Petkovski v Galletti.[65]
[64] T 137 L 13–16
[65] [1994] 1 VR 436
67 After consideration of all the evidence, I accept the views of the treating neurosurgeon Dr Bittar, the medico-legal neurosurgeon Mr Klug, and the orthopaedic surgeon Mr Polke that the incident of injury in July 2002 and the subsequent employment until May 2006 had been a significant contributing factor to his low back condition and contributing to the need for surgery on 5 September 2006. It is to be noted that the MRI scan undertaken by the plaintiff on 15 May 2006 demonstrated left-sided L5-S1 paracentral disc prolapse which was large and compressing the left S1 nerve root. However, it is to be noted that previous radiological studies did not demonstrate any overt prolapse.
68 In some ways, the circumstances of this matter highlight the distinction between Petkovski and Grech v Orica Australia Pty Ltd.[66] In Petkovski, a person who was involved in a transport accident sought leave to bring common law proceedings pursuant to s.93 of the Transport Accident Act 1986 on the basis that the “injury” suffered by the person in the transport accident was a “serious injury”. The injured person had a pre-existing degenerative condition, and the court made clear that:
“... it has for long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought.”[67]
[66] (2006) 14 VR 602
[67] See Petkovski paragraph 40
69 Accordingly, the Court of Appeal directed in Petkovski that where a transport accident did not cause the pre-existing condition the applicant must establish what injury was caused by the transport accident and where there is a pre- existing condition it necessarily follows that analysis must be made of the extent of the impairment of body function before and after the relevant injury. It is only that “injury” to which the enquiry is directed as to whether or not such injury does involve serious long-term impairment and requisite consequences.
70 Although counsel for the defendant limited his argument to the incident of injury on 22 July 2002, the same argument in a diluted way could apply to injury occurring from July 2002 until May 2006. In other words, if Petkovski were to be applied, the impairment of the plaintiff prior to such “injury” must be compared to the impairment after such “injury”. Probably, even on a Petkovski approach, the impairment of the plaintiff after the “injury” was such that he required surgery in September 2006, and thus would succeed in any event.
71 The above approach must be compared to that set out in Grech wherein Ashley JA analysed s.134AB in the context of the Act in which it is found – the Accident Compensation Act. It is to be noted that the definition of “injury” contained within s.5(1) of the Act is different to that contained in s.3(1) of the Transport Accident Act. In the Act, a pre-existing injury or disease which is aggravated becomes “the injury” – that is to say, the injury in its aggravated state, rather than the injury being just the extent of the aggravation.[68] Accordingly, once you have an injury in its aggravated state, the issue becomes whether or not such injury resulted in, or materially contributed to, impairment and consequences (ie. where such injury is a legal cause of the impairment and consequences).
[68] See Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19, per Barwick CJ at paragraphs [8]-[23]
72 Although I doubt much turns on it in this case, I say, with the greatest respect, that the approach set out in Grech is to be preferred to that set out in Petkovski for industrial matters at serious injury level. Of course, for transport accident “serious injury”, Petkovski may well be apposite. I refer to the decision of Filipowicz v Arnold Ribbon Co Australia Ltd; Filipowicz v AG Staff Pty Ltd[69] handed down 21 February 2011, wherein Judge Misso also addressed issues pertaining to the application of Grech or Petkovski in serious injury matters under s.134AB of the Act. I refer to paragraphs 98–115 of that judgment, and respectfully concur with His Honour’s conclusions.
[69] [2011] VCC 287
73 Accordingly, I find that the plaintiff has suffered a compensable injury which has resulted in or materially contributed to impairment and some physical consequences.
74 The next issue is whether such consequences meet the requisite test. In relation to this critical issue, I am assisted by several Court of Appeal decisions:
(a) Stijepic v One Force Group Aust Pty Ltd and Anor,[70] delivered on 14 August 2009, wherein Ashley JA and Beach AJA, by way of dicta, stated: [70] [2009] VSCA 181
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”[71]
[71] Stijepic (op. cit.) paragraph [42]
(b) In Stijepic, Ashley JA and Beach AJA also referred to Dwyer v Calco Timbers Pty Ltd (No 2),[72] wherein it is stated: [72] [2008] VSCA 260
“... the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[73]
[73] Dwyer (op. cit.) at paragraph [27]
(c)
I also refer to Sabo v George Weston Foods[74] wherein Neave and Mandie JJA made reference to the decision of Transport Accident Commission and O’Dea v Dennis[75] and adopted the words of Callaway JA when he discusses the weight which must be given to the adverb “very” and the words “at least very considerable”. Callaway JA stated:
[74] (op. cit.) at paragraph [73]
[75] [1998] 1 VR 702
“Many [impairments] are considerable, in the sense that they are
important or substantial, without being very considerable.”[76]
(d)
I also refer to Haden Engineering Pty Ltd v McKinnon,[77] wherein Maxwell P stated that the concept of a “pain and suffering consequence” encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[78]
[76] (op. cit.) at page 703
[77] [2010] VSCA 69
[78] See Haden Engineering Pty Ltd (op. cit.) at paragraph [9]
What are the physical consequences suffered by the Plaintiff as a result of his
Back Impairment?75 I should say something about the evidence of the plaintiff. I did not find him a particularly impressive witness. On occasions, his evidence was vague and inconsistent. In particular, I refer to the cross-examination in relation to his earlier statement dated 22 August 2002 wherein he speaks of giving up sport far earlier than the onset of injury in July 2002.[79]
[79] See Exhibit 1
76 Ultimately, the impression that I gained was that the plaintiff was still engaging in some sporting activities prior to July 2002, although such activity had diminished over the years leading up to 2002 in part as a result of his earlier back symptoms and other medical conditions.
77 The plaintiff gave evidence that he attends Morwell most weekends to be with his girlfriend, drives a vehicle, is engaged in pool competitions, and plays poker either in organised competitions at a hotel or on the net.
78 When queried as to the physical consequences of such impairment, senior counsel for the plaintiff highlighted the following:
(a)
Daily continuing pain for which it has been necessary to undergo sheath injections and take medication to help relieve such pain (which does affect his sleep once or twice a week);
(b)
The plaintiff’s inability to return to the type of work that he was engaged in with the defendant prior to his injury, more so when he has no particular industrial skills;
(c)
To the extent that he was performing certain sporting activities prior to July 2002, those activities have largely come to an end;
(d) His inability to go fishing at surf beaches.
Conclusion
79 Consistent with the views of Dr Bittar, Mr Klug and Mr Polke, I accept that the plaintiff would have ongoing pain symptoms as a result of his back condition and resultant surgery. I further accept on the basis of their opinions and findings that the plaintiff would be incapable of returning to work which required bending, lifting or twisting of the body. I accept that such restriction limits the type of work that he can perform.
80 I also find that although the plaintiff was not playing active sport prior to his injury in July 2002, I accept that he had some involvement in sporting activities, which have been affected by his back condition. I do accept that he would have had enjoyment from pursuing such sporting activities which seemingly he has enjoyed all his life.
81 It is to be stressed that the plaintiff does involve himself in social activities with his girlfriend, various activities at his local hotel, and pursues such activities as pool and poker, both of which he seemingly enjoys.
82 After a consideration of all of the evidence, I am of the view that this is a lineball case, but ultimately, taking into account all the consequences suffered by the plaintiff, as a result of his low back injury, in particular his ongoing pain symptoms, I am satisfied that such consequences, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being “more than significant or marked” and as being at least “very considerable”.
83 Accordingly, pursuant to s.134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect to a back injury suffered over the period from July 2002 to May 2006.
84 I will hear the parties on the question of costs.
- - -
Annexure A
The plaintiff tendered the following material:
(a)
Exhibit A – pages 1-14(e) and pages 41-651 of the Plaintiff’s Court Book (PCB);
(b) Exhibit B – medical records of Dr Tan at pages 57(a)-57(j) of the PCB; (c) Exhibit C – clinical records at pages 175-196 and 304-352 of the PCB.
The defendant tendered the following material:
(a) Exhibit 1 – statement of Mr Zacharias dated 22 August 2002; (b) Exhibit 2 – letter from plaintiff to the HR Manager dated 28 April 2006; (c) Exhibit 3 – pages 1-60(g) and pages 61-72 of the Defendant’s Court Book (DCB).
0
10
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