Zdybel v Bay City Roofing P/L
[2011] VCC 1192
•11 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03632
| DANIEL ZDYBEL | Plaintiff |
| v | |
| BAY CITY ROOFING PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 and 20 July 2011 |
| DATE OF JUDGMENT: | 11 August 2011 |
| CASE MAY BE CITED AS: | Zdybel v Bay City Roofing P/L |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1192 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – serious injury – cause of action arising before 12 November 1997 – knowledge of serious injury incapacity – concession that the plaintiff had suffered serious injury incapacity by 2009 – whether the plaintiff had suffered serious injury incapacity by 2003: section 135AC(b).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore-Lacy SC | Holding Redlich |
| with Ms B Knoester | ||
| For the Defendant | Mr P Jens | Lander & Rogers |
| HIS HONOUR: |
Introduction
1 The plaintiff filed an Originating Motion on 18 August 2010 seeking leave of the Court to bring a proceeding to recover damages at common law pursuant to section 135A and 135AC of the Accident Compensation Act 1985 ("the Act").
2 The relevant definition of serious injury which applies to the proceeding is referred to in subsection (19) which provides that the plaintiff must establish that he has suffered a serious long term impairment or loss of a body function. The body function which the plaintiff says has been impaired is the function of his lower back.
3 Mr D Hore-Lacy SC appeared with Ms B Knoester of Counsel for the plaintiff, and Mr P Jens of Counsel appeared for the defendant.
4 The following evidence was adduced at the hearing of the proceeding:
• The plaintiff gave evidence and was cross-examined. • The plaintiff tendered his Court Book ("PCB") pages 9-85: Exhibit A. •
The plaintiff tendered extracts of clinical notes of a number of medical practitioners and a chronology: Exhibit B.
• The defendant tendered its Court Book ("DCB") pages 1-34: Exhibit 1. •
The defendant tendered film taken of the plaintiff on 22 August 2003: Exhibit 2.
•
The defendant tendered extracts of clinical notes of a number of medical practitioners: Exhibit 3.
The Plaintiff's Background
5 The plaintiff was born on 28 November 1973. He is now thirty-seven years of age. He is a married man. He and his wife have three children who are about seventeen, twelve and seven years of age.
6 The plaintiff last attended Western Heights Secondary College in Geelong. He left when he was sixteen to seventeen years of age. He intended to pursue a career as a professional footballer with the Geelong Football Club. His career was cut short when he suffered a lung tumour which required radical surgery to remove a large portion of his diseased lung.
7 The plaintiff's father was a roof tiler by trade. When the plaintiff appreciated that his footballing career was over, he took up an apprenticeship with his father. His father traded under the name "Bay City Roofing Pty Ltd".
8 The plaintiff completed his apprenticeship by 12 July 1995. Subsequently, he continued to work for his father as a roof tiler.
The Incident and its Aftermath
9 On 23 September 1994, the plaintiff climbed a ladder carrying a load of six roof tiles on his right shoulder. He lost his footing and fell about 3 metres to the ground below, landing on his buttocks.
10 The plaintiff continued working. About one week after the occurrence of the incident his lower back seized up when he attempted to lift some roof tiles onto a roof.
11 The plaintiff subsequently sought medical treatment. For present purposes it is convenient to summarise that medical treatment as follows:
•
The plaintiff consulted Dr Virgona, general practitioner, on 25 November 1994. He was referred to have an x-ray.
•
Dr Virgona referred the plaintiff to have a CT scan which was taken on 4 January 1994. It demonstrated discal abnormalities at L3-4 and L5-S1.
•
Dr Virgona referred the plaintiff to Dr Wood, rheumatologist. The plaintiff saw him on 13 January 1995, and then on the second occasion in April. He provided the plaintiff with no active treatment, but gave him advice regarding the activities which he should avoid which included not returning to work as a roof tiler.
12 The plaintiff’s lower back pain gradually improved. He had massage treatment and engaged in exercise. It does not appear that he had much medical treatment thereafter, and certainly not until about 2003 when the evidence would suggest that he suffered increased pain in his lower back.
13 The plaintiff accepted the advice given to him by Dr Wood. He engaged in retraining in the hospitality industry. He subsequently worked in the hospitality industry as follows:
•
From 1996 to 1998, as the restaurant manager of Cafe Botticelli in Geelong West.
•
From 1998 to 1999, as the assistant manager at The Max Hotel in Geelong.
•
From June 1999 to October 2001, as the dining room manager at Erskine House in Lorne.
•
From November 2001 to September 2003, as the restaurant manager at Reifs Restaurant in Lorne.
•
From October 2003 to August 2005, he was the owner and operator of the Blue Lounge Restaurant in Lorne.
•
After a short break from the hospitality industry, the plaintiff returned to the hospitality industry as the manager of the King Parrot Cottages at Pennyroyal from September 2005 to August 2006. It was set on 200 acres of land. The plaintiff was responsible for undertaking maintenance work on the property. He also chopped and collected firewood using chainsaws, splitters and similar equipment.
•
From September 2006 to May 2007, he managed the Wildwood Retreat at Pennyroyal. He was also responsible for undertaking maintenance work on the property. The plaintiff was not paid as he should have been by the owners and operators of the property. That brought his employment to an end.
•
The plaintiff was in receipt of unemployment benefits for some time. He then commenced employment as the restaurant manager at Old Lorne Road Olives from February 2008 to March 2009.
14 By March 2009 the plaintiff’s lower back pain had increased to the point where he was forced to cease work altogether. He has not returned to any paid employment since.
15 In addition to his ability to return to alternative work in the hospitality industry, the plaintiff returned to playing Australian Rules football in 2001. He played a total of nine games with the Birregurra Saints. He kicked ten goals in his last game.
The Issues
16 Mr Jens conceded that at present the plaintiff has serious injury consequences of his lower back injury.
17 Mr Jens submitted that the real question is whether the plaintiff suffered those consequences by 2003.
18 Therefore, it is what I make of the evidence of the consequences suffered by the plaintiff in 2003 that is at the heart of this proceeding.
19 Mr Hore-Lacy expended a great deal of effort in tracing through the medical evidence between 23 September 1994 and at the beginning of the period in 2003 when, Mr Jens submitted, it was plainly obvious that the plaintiff was suffering serious injury consequences of his lower back injury.
20 In a similar way, Mr Hore-Lacy expended an equally great deal of effort in tracing through the medical evidence from 2003 through to the present time to demonstrate that it was not until much later that the plaintiff suffered serious injury consequences of his lower back injury.
21 After reviewing the material tendered by both Mr Hore-Lacy and Mr Jens, and reviewing the transcript of the plaintiff's evidence, it seems to me that what I must do is concentrate on what occurred in 2003, because if I am satisfied that the plaintiff suffered those consequences then his application must fail, but on the other hand, if I am not so satisfied, then it must follow that I must find that the plaintiff has suffered those serious injury consequences consistent with the concession.
Medical Treatment between 1994 and 2003
22 Mr Hore-Lacy provided me with a schedule of the medical treatment which the plaintiff obtained between 1994 and 2003 cross referenced with a substantial chronology and further cross referenced with clinical notes.[1]
[1] The clinical notes are Exhibit B
23 I have matched up the schedule, the chronology and the clinical notes to verify the accuracy of the schedule. They demonstrate the following:
•
1994 - the plaintiff attended a general practitioner on three occasions and a physiotherapist on 15 occasions.
•
1995 - the plaintiff attended a general practitioner on nine occasions; on Dr Wood on two occasions; a physiotherapist on one occasion; and was referred to have a CT scan.
•
1996, 1997 and 1998 – the plaintiff did not attend any medical or paramedical practitioner.
•
1999, 2000 and 2001 - the plaintiff attended a general practitioner on one occasion in each year.
• 2002 - the plaintiff did not attend any medical or paramedical practitioner. •
2003 - the plaintiff attended a medical practitioner on one occasion. However, Mr Jens submitted that the plaintiff attended a number of non- medical or non paramedical practitioners.[2] I will return to this subject later.
[2] That is, as distinct from the treatment provided by masseurs and naturopaths
24 Mr Hore-Lacy ultimately submitted that 2003 was really no different, because subsequent to 2003 the schedule, the chronology and the clinical notes demonstrate the following:
• 2004 - one attendance on a general practitioner. • 2005 - one attendance on a general practitioner and four attendances on Mr Haas, masseur. • 2006 - no attendances on any medical or paramedical practitioners. 25 The plaintiff's Originating Motion was filed on 7 April 2010. According to Mr Jens, it was served on 9 April 2010. Irrespective of which is the relevant date, the three-year period relevant to a determination based upon section 135AC(b) is to be calculated from either 7 or 9 April 2007.
26 It is unnecessary for me to further summarise what the schedule, the chronology and the clinical notes demonstrate because of the concession made by Mr Jens that at least by 2009, the plaintiff had certainly suffered consequences which would satisfy the statutory test.
The Plaintiff's Situation in 2003
27 In 2003, the plaintiff was the restaurant manager at Reifs Restaurant in Lorne. He was listening to the radio while at the restaurant. He heard an announcement made by Mr Terry O'Brien, solicitor, who he later understood to be a solicitor with Holding Redlich. At the time when he heard the radio announcement he was suffering from a flare-up of lower back pain.[3]
[3] DCB 1-2
28 The plaintiff contacted Mr O'Brien. He did not confer with Mr O'Brien at any time. It was as a result of contacting Mr O'Brien that the plaintiff must have retained Mr O'Brien to act as his solicitor because what followed was a claim for compensation for permanent disability made by the plaintiff dated 18 May 2003.[4]
[4] Transcript 46-47
29 In support of his application for compensation for permanent disability, Mr O'Brien prepared an affidavit for the plaintiff to swear. The plaintiff received the affidavit. He swore it at Lara on 19 May 2003. He recalled that he was visiting his parents at Lara at the time when he had the affidavit in his possession. He swore it before a Sergeant of police at the Lara police station.
30 The relevant part of the claim affidavit on which Mr Jens concentrated a significant portion of his cross-examination is as follows:
“I suffer from a constant ache in the back and legs. My pain is worse in the mornings. Currently I work as a restaurant manager so I do not have to do the same physical work as I did as a roof tiler. However, I have trouble managing work because of my pain. I used to enjoy sports including football and cricket but cannot play either though I have tried. I can run but I can not do so without pain so I do not run. I find that in general any vigorous sustained physical activity causes me pain afterwards so I lead a physically non-robust life. I live on a 60-acre property and have trouble doing work on the property. I find that when I do attempt jobs I often suffer considerably from pain afterwards. I cannot sit it for long without suffering increased pain and discomfort. I do not sleep well because of my pain. I became qualified as a roof tiler but I can no longer follow my trade. I am worried about my employment prospects in the future. I am also very worried that the condition of my back which seems to be getting worse rather than better will even more seriously affect my life when I become older.”[5]
[5] DCB 1-2
31 Mr O'Brien referred the plaintiff to Mr Mangos, general surgeon, who examined the plaintiff in May 2003. The relevant part of the history on which Mr Jens concentrated a significant portion of his cross-examination is as follows:
"Over the years he has continued to have massage treatment, as well as some yoga and stretching. He takes Panadeine Forte on and off. He states that he has become a full-time manager of a restaurant but works under great difficulty. He also has three young children and he is not able to cope with a full days load, both domestically and occupationally without having severe pain [for] which he has to take Panadeine Forte and anti-inflammatory medication.
He finds that prolonged sitting, regular bending, straining, and unprepared activities all worsen his back pain and the pain has become progressively worse in his legs where he has numbness and tingling. They tend to give way sometimes and there is tingling of the toes and feet. On occasions he has to wear a course. He cannot run or play sport.”
32 Mr Mangos referred to the nature and extent of the problems the plaintiff had with his lower back following the occurrence of the incident, and then made the following observation relevant to his examination of the plaintiff:
“… Naturally his condition has improved a good deal since then, but there is little doubt that this man suffers a chronic and annoying back injury in a man of 29 who has three young children and businesses to run. This is a sizeable disability/impairment.”
33 Mr Mangos was of the opinion that the plaintiff was suffering from a chronic back injury with chronic back pain and episodic sciatica in both legs. He was then asked a series of questions. The relevant answer is as follows:
“In my opinion this man has a partial permanent disability for industrial purposes of the back of 25%, the right leg of 15%, and the left leg of 15%.”
34 Mr Mangos also conducted an impairment assessment under the relevant guides. He concluded that the plaintiff had suffered a 16 per cent whole person impairment.[6]
[6] DCB 16-19
35 The plaintiff first saw Dr Virgona for treatment in November 1994. The last occasion he saw him for treatment was in September 1995. The plaintiff returned to see him on 3 April 2003 to obtain clinical details relevant to the injury he suffered in the incident. He recorded the following history taken from the plaintiff on that occasion:
"When Daniel came to see me on the 3rd April 2003 for the clinical information of 1994, I noted that he continued to have back pain, that he was taking Nurofen for pain relief and that he was having massage weekly. I did not examine him."
36 The plaintiff was referred to Mr Battlay, general surgeon, by the insurer. Mr Battlay examined him in May 1995, and in relation to the disability claim, he examined him on 18 August 2003. The relevant part of the history taken by Mr Battlay is as follows:
"… He has not gone back on any medication, because of his previous worries. He has been attending a naturopath, who has been doing tests on his acid levels and has advised him not to take anti-inflammatories. He occasionally takes Nurofen but gets abdominal cramps from that. Generally he contends himself with having massages once every three weeks, as well as being seen by the naturopath once every three weeks. His wife also rubs his back, and he does stretches and yoga in the mornings.
He says that he has tried going back to playing football but was not successful at this because of his back problem. He only played in two or three matches. Then he tried coaching football but found that the weekends were his busiest times at his work so he does no regular sports nowadays. He finds that walking is good to him and does this whenever the back hurts."
37 Before he examined the plaintiff, Mr Battlay obtained a history of the plaintiff's presenting complaints:
" He indicates the pain across L5 spreading into each flank, one side sometimes being worse than the other. The pain refers to his testicles and his thighs, both anteriorly and posteriorly. Very rarely does he have pain beyond the knees. There is some tingling in his fingers and toes for which he has had various advice from his naturopath.
He is uncomfortable sitting for more than 10 minutes, and prefers to stand. Walking is good to him. He can bend and lift up to a point but after doing this repetitiously, pain comes on in his back."
38 Mr Battlay was of the opinion that the plaintiff had symptoms indicative of discogenic mechanical lower back pain. He considered that the plaintiff had good movement in his back and no evidence of sciatic nerve root irritation or lower limb neurological loss. Unlike Mr Mangos, he considered that the plaintiff had no loss of industrial use of his legs.[7]
[7] DCB 21-23
39 Mr Jens submitted that the clinical notes demonstrated that whilst the plaintiff may not have had much medical or paramedical treatment, he nonetheless gave histories which demonstrated that he was having a lot of naturopathic and massage treatment.[8]
[8] Each of the matters to which I was taken by Mr Jens are contained in Exhibit 3, save where otherwise stated.
40 The first records I was taken to by Mr Jens were the Barwon Health Pain Management Clinic notes. The plaintiff completed a questionnaire on 21 February 2009. In answer to question 3, he said that the plaintiff described his lower back problems as first starting in 1994.
41 In answer to questions 6 to 14, the plaintiff described a serious level of disabling pain. Mr Jens submitted that it was open for me to conclude that the level of the pain and disablement ultimately described by the plaintiff in the questionnaire was apparent from 1994.[9]
[9] Exhibit 3 pages 1 and 3-8
42 Next, Mr Jens referred me to an anaesthetic record of the Geelong Hospital. The pre-operative observations of the plaintiff relevant to what appears to have been a problem with the plaintiff's appendix is dated 13 September 1996. Recorded in the notes is a reference to the plaintiff having suffered L3 and L5 disc prolapses and suffering chronic lower back pain. Mr Jens submitted that the clinical description is consistent with a serious level of disabling pain.[10]
[10] Exhibit 3 page 11
43 Next, Mr Jens referred me to an entry in the clinical notes of Dr Mcguane, general practitioner, and in particular, to an entry dated 23 June 2009 where Dr Mcguane recorded that the plaintiff had longstanding back pain, having fallen from a roof fourteen years ago. Mr Jens submitted that it was further evidence of the plaintiff suffering from a serious level of disabling pain over a long period of time.[11] Mr Jens also referred to a similar entry in the clinical notes made by Dr Jones, general practitioner, that the plaintiff had suffered back pain over ten years; that it was getting worse and was of longstanding.[12]
[11] Exhibit 3 page 17
[12] Exhibit 3 page 20
44 Mr Jens referred to the clinical notes of Dr Cherubim, chiropractor, and in particular, to an entry dated 26 October 2007 where Dr Cherubim recorded that the plaintiff had fallen off a roof; had x-rays taken demonstrating L3 and L5 disc bulges, and that the pain came on ten years ago. Mr Jens submitted that it was further evidence of the plaintiff suffering from a serious level of disabling pain over a long period of time.[13]
[13] Exhibit 3 page 21
45 Mr Jens referred me to the clinical notes of the Lorne Medical Centre. He referred me to entries in the clinical notes of 20 July 2001, 25 May 2002, 9 August 2002, 27 May 2004 and 17 June 2005 in which the attending medical practitioner recorded the plaintiff was suffering from bad dreams, anxiety and stress, all of which appear to be related to the development of the lung tumour. Mr Jens submitted that, to the extent that the plaintiff intended to submit that one of the consequences of the serious injury incapacity which was apparent in 2009 was an ensuing psychological disorder, then that was apparent much earlier and as a consequence of an unrelated condition.[14]
[14] Exhibit 3 pages 22, 23, 24 and 25
46 From the same clinical notes, Mr Jens referred to an entry of 15 April 2004 where the attending medical practitioner noted that eight years before that date the plaintiff had suffered damage discs and disc protrusions at L3 and L5 that he had tried acupuncture, and found massage treatment worked the best. He also referred to another entry of 14 May 2008 and a report from Dr Chang, general practitioner, to the Pain Clinic at the Geelong Hospital, describing discal injury which arose at the time of the occurrence of the incident.[15]
[15] Exhibit 3 pages 25, 26 and 27
47 Mr Jens then referred to the clinical notes of Dr Virgona of 26 September 1995 and 3 April 2003. The entry of 3 April 2003 records that the plaintiff was having massage treatment weekly at that time.[16] Mr Jens also referred to the report of Dr Virgona dated 28 July 2003[17] which was based upon the aforementioned clinical notes.
[16] Exhibit 3 page 28
[17] DCB 14-15, and referred to in paragraph 35 above
48 It is convenient at this point to summarise the submissions made by Mr Jens based upon his analysis of these clinical notes. Essentially, he submitted that following the occurrence of the incident, the plaintiff suffered a quite serious injury to his lower back which was consistent with the descriptions he provided to the medical practitioners who treated him, and the hospitals where he was treated. Each entry, and to varying degrees, pointed to the plaintiff having an emerging serious disabling back injury which is consistent with the disability claim which the plaintiff made, supported by his claim affidavit and verified medically by Mr Mangos and Mr Battlay.
49 Mr Jens cross-examined the plaintiff extensively, putting to the plaintiff each of the matters which I have summarised above. Essentially, it was the plaintiff's evidence that he was having a flare-up of pain on the day when he heard the announcement on the radio which led him to ring Mr O'Brien. He also said that he had flare-ups during each year and probably about twice a year. He added that when he had a flare-up he would have some days off work.[18] He agreed that he had obtained massage treatment over the years and was having that treatment during 2003.[19]
[18] Transcript 47-50
[19] Transcript 51-52
50 Mr Jens produced film which was shown to the plaintiff. It was taken on 22 August 2003.[20] The impression I was left with was that it demonstrated a person who was affected by a lower back injury. The features which left me with that impression are as follows:
[20] Exhibit 2
•
At about 13:10 hours, the plaintiff was at a service station. It appeared to me that he was leaning to his right side and walking with an unusual gait as if he was protecting his lower back as he walked from a petrol bowser into the service station shop and on his return to his car.
•
At about 14:09 hours and 16.15 hours, the plaintiff appeared to struggle to enter his combi van. He appeared to enter it side on and ease himself up from the roadway into the driver's position. It was an unusual series of movements, giving the appearance that the plaintiff was protecting his lower back.
•
At about 14:13 hours, the plaintiff was again seeing walking in a similar fashion as he was at about 13:10 hours. He was also seen bending slowly at the knees with a straight back descending to pick something up off the ground.
51 The plaintiff had previously seen the film. He denied that it demonstrated him walking, getting into a motor vehicle and bending in a fashion consistent with him protecting his lower back. Firstly, the plaintiff said that the way he was seen walking in the film is the way he usually walks.[21] Secondly, he said that the reason why he entered the combi van was because there was a spring protruding from the seat, and because he was wearing his favourite pair of pants that day he did not want to get his pants caught on the spring, hence the reason why he entered the combi van so carefully.[22]
[21] Transcript 120
[22] Transcript 120
52 Mr Jens submitted if the plaintiff had commenced a proceeding seeking serious injury based upon the combination of the claim affidavit and the medical opinions of Mr Mangos and Mr Battlay, and that if it came on in a timely way, then the plaintiff would have obtained serious injury because it was a palpably strong case.
53 Furthermore, Mr Jens submitted that the plaintiff had the requisite degree of knowledge that he had serious injury incapacity at the time he swore the claim affidavit. He submitted that the plaintiff’s subjective view of the facts at that time was consistent with the plaintiff having knowledge of his serious injury incapacity, and when viewed objectively, that the plaintiff knew of facts upon which such an application would have been based which constituted serious injury incapacity.
Post-2003
54 Mr Hore-Lacy essentially answered the submissions made by Mr Jens by making the following points:
•
Firstly, that I should accept the plaintiff's evidence regarding the nature and extent of his lower back injury in 2003, which amounted to episodic flare-ups requiring little or no treatment in the background of a man who was working full-time as a restaurant manager at Reifs Restaurant in Lorne.
•
Secondly, even if I were to accept that the contents of the claim affidavit sworn by the plaintiff was true, and histories given to Mr Mangos and Mr Battlay, that the aggregate effect of the foregoing would not have amounted to the plaintiff having serious injury incapacity.
•
Thirdly, he made the same submission regarding what was shown in the film, in particular, submitting that the plaintiff’s careful movements were consistent with what the plaintiff had been instructed to do to protect a vulnerable lower back.
•
Fourthly, it was open to me to find that the plaintiff had exaggerated the pain and level of his disability in the claim affidavit and the histories given to Mr Mangos and Mr Battlay as an explanation for the content of the claim affidavit and those histories.
•
Fifthly, the plaintiff's conduct subsequent to 2003 was entirely inconsistent with the plaintiff having suffered serious injury incapacity.
55 I will firstly turn to the other evidence which the plaintiff relied upon to demonstrate that what occurred in 2003 was relatively insignificant when a comparison is made with what occurred from 2007 until 2009 when it is obvious that he was suffering serious injury incapacity.
56 The plaintiff worked through 2003 and up until March 2009 in full-time occupations which, by their descriptions, must have been physically demanding occupations.
57 Secondly, the plaintiff had little or no treatment of a formal kind until 2008 when the schedule, the chronology and the clinical notes reveal that he had attended a general practitioner; four attendances on a masseur; some attendances on a chiropractor; six attendances on a neuro-muscular therapist; prescription of Efexor for depression and Tramadol for pain relief, and at the end of that year, a referral to a pain clinic at the Geelong Hospital.
58 In 2009, the plaintiff attended a general practitioner on sixteen occasions; attended the Pain Clinic at the Geelong Hospital in February 2009; was referred to have a CT scan and an MRI scan; was referred to Mr Carey, orthopaedic surgeon; and had attendances on a chiropractor, a masseur and a neuro-muscular therapist. He was later referred back to the Pain Clinic at Geelong Hospital in December 2009. He was prescribed Oxycontin for pain relief. The medical and paramedical treatment he obtained in 2010 increased; however, it is not necessary to me to set that out given the concession of serious injury incapacity made by Mr Jens.
59 Mr Hore-Lacy submitted that the foregoing only serves to demonstrate that even in 2007 the plaintiff was having very little medical or paramedical treatment. It was only into 2008 that the condition of the plaintiff’s lower back worsened markedly, demonstrated by the treatment he obtained in that year and in the following year.
60 Thirdly, the plaintiff played cricket for about two and a half seasons with the Deans Marsh Cricket Club, ceasing in about March 2008. Exhibited to his first affidavit are photographs which demonstrate that the plaintiff played in the cricket seasons covering the summer periods of 2005-06, 2006-07 and 2007- 08. He was the “Players Player” in 2005-06 and 2006-07. He batted in 31 innings, making 560 runs, with a highest score of 80, and a batting average of 20. On the bowling side he took 39 wickets, conceding 820 runs at an average of 21.03. He played in an “A” Reserve premiership in 2006-07.
61 A further six photographs demonstrate the plaintiff bowling. The first three show the plaintiff at full stretch at the end of his delivery stride. The impression I have is that the plaintiff was a fast bowler. What I have seen in the photographs bears all of the characteristics of someone delivering a ball with speed. The fourth photograph shows the plaintiff in the attitude of a sprinter in full stride chasing a ball to the boundary. The sixth photograph shows the plaintiff at full stretch at the end of his delivery stride.[23]
[23] Exhibits "DJZ2" and "DJZ3" to his affidavit sworn 7 April 2010
62 Mr Grant Byrne is the president of the Deans Marsh Cricket Club. He provided a letter which confirms that the plaintiff played with the Cricket Club, and also describes the type of player the plaintiff was and the awards which he won.[24]
[24] PCB 18B
63 The plaintiff says that he engaged in fitness training associated with playing cricket. He was accustomed to bushwalking in State forests neighbouring his property. He was also accustomed to swimming on a weekly basis.[25]
[25] PCB 14-15
64 Fourthly, the plaintiff joined the Deans Marsh Country Fire Authority (CFA) in 2008. He attended a number of bushfires and grass fires. Exhibited to his first affidavit is a photocopy of a newspaper article showing a CFA vehicle, a fire truck and car engulfed in flames.[26] The plaintiff says that he attended that fire as part of a CFA crew.
[26] Exhibit "DJZ4" to his affidavit sworn 7 April 2010
65 Mr Geoff Clissold is the captain of the Deans Marsh CFA. He provided a letter which confirms that the plaintiff became a member of the CFA in 2008 and was actively involved in training sessions, callouts and meetings as a volunteer.[27]
[27] PCB 18A
66 Fifthly, the plaintiff worked for Mr Peter Bell on his property at Deans Marsh between May and August 2007. His duties involved sanding and painting involving the use of ladders; building paddock fences, which involved digging holes and constructing wire fences; cutting and bringing in firewood; planting trees and laying concrete pathways. Mr Bell swore an affidavit describing that the plaintiff did that work without difficulty, and that the work was heavy and physically challenging.[28]
[28] PCB 30
67 Furthermore, the plaintiff says that he undertook extensive home handyman work on his home property. This involved working on the house which was only a frame when he and his wife and children moved into it, and constructing decking, ramps and pergolas.[29] He exhibited photocopies of two photographs to his first affidavit of a timber garden feature and a decking area which he constructed. They appear to me to be substantial forms of timber construction.[30]
[29] PCB 15
[30] Exhibit "DJZ5" to his affidavit sworn 7 April 2010
68 Sixthly, the affidavit of Jo-Anne Zdybel the plaintiff’s wife. She swore an affidavit on 10 May 2011, in which she says that the plaintiff was working in full-time employment over the periods referred to by the plaintiff, that he was involved in cricket and with the CFA, and that she noticed a deterioration in his condition in late 2008, which resulted in him ceasing work altogether in March 2009.[31]
[31] PCB 25-27
69 Mr Glenn Dempsey is a friend of the plaintiff's. He swore an affidavit on 9 June 2011 in which he says that the plaintiff played cricket with him at the Deans Marsh Cricket Club and that they were in the CFA together. He otherwise confirms the plaintiff's deterioration over the last couple of years.[32]
[32] PCB 28-29
Disposition
70 The most recent decision of the Court of Appeal relevant to section 135AC(b) is Morris & Joan Rawlings Builders and Contractors.[33] The appeal was heard by a five-member Court comprising Warren CJ, Buchanan JA, Nettle JA, Mandy JA and Beach AJA.
[33] [2010] VSCA 306
71 The Court of Appeal held that the onus in such a proceeding is borne by the plaintiff.[34] Furthermore, the Court of Appeal referred to the following as the principle to be applied in such a proceeding:
"The respondent’s application was properly to be regarded as barred by s135AC if ‘the incapacity arising from the injury’ was known on or before 12 November 1997 – in which case s 135AC(b) would have had no application, leaving the application barred because the respondent did not make an application under s 135A(2B) before 1 September 2000. Alternatively, the application was properly to be regarded as barred by the operation of s 135AC(b) if the respondent had knowledge of the incapacity, arising from his pre-12 November 1997 injury, more than three years before 21 December 2007. The incapacity being spoken about is, of course, serious injury incapacity. It is sufficient to bar the claim if the respondent knew of facts that, viewed objectively, constituted the serious injury incapacity. The fact that an applicant/worker (in this case the respondent) does not subjectively appreciate that the injury is serious until after the relevant date is not necessarily determinative."[35]
[34] paragraphs 29-31
[35] paragraph 36
72 The serious injury incapacity referred to by the Court of Appeal is, of course, the serious injury incapacity referred to in the relevant narrative definition in section 135A with the guidance provided by the majority of the Full Court in Humphreys v Poljak.[36]
[36] [1992] 2 VR 129 at 140
73 The submissions made by Mr Jens amount to the plaintiff knowing facts in 2003, and more particularly, at the time when he swore the claim affidavit, which when judged objectively, constituted serious injury incapacity.
74 I am not persuaded that the facts demonstrate that the plaintiff had suffered serious injury incapacity in 2003.
75 What is clear to me is that up until 2003 the plaintiff was engaged in full-time employment. The medical and paramedical treatment he was receiving can only be described as modest. The two together point to whatever incapacity he was suffering from as being tolerable, and certainly falling far short of serious injury incapacity, and more likely the most apt description would be modest incapacity.
76 What is also clear to me is that in 2003 there was no alteration in the medical and paramedical treatment he was receiving, except for massage treatment in 2003 which the plaintiff appears to have undergone with some regularity; however, the evidence does not permit me to determine the extent to which he was resorting to massage treatment.
77 If the foregoing is looked at in a vacuum, ignoring the claim, the claim affidavit, the film and the reports of Mr Mangos and Mr Battlay, then the conclusion that there was no alteration in the plaintiff's medical and paramedical treatment when compared with earlier years is inevitable.
78 The question that arises for consideration, and is central to the submissions made by Mr Jens, is what to make of the claim affidavit and the reports of Mr Mangos and Mr Battlay.
79 This claim affidavit demonstrates that the plaintiff was experiencing pain and was disabled in undertaking social, domestic and recreational pursuits, and was unable to occupy simple postures such as sitting and standing without experiencing increased pain and discomfort. Each of these matters are the very sort of characteristics which I would consider are approaching the type and degree of consequences which might well amount to serious injury incapacity.
80 However, what the plaintiff deposed to must then be compared to the fact that he was in receipt of very little medical and paramedical treatment, save for massage treatment, and was in full-time employment in an occupation which no doubt made physical demands of him.
81 Furthermore, what also needs to be weighed into account is the evidence of the plaintiff that he suffered intermittent flare-ups during 2003, and beforehand, which may have resulted in him to taking some time off work, but otherwise he suffered no other moderate to serious consequence of the initial injury to his lower back. That, of course, is in stark and remarkable contrast to what he deposed to in the claim affidavit and in the reports of Mr Mangos and Mr Battlay.
82 The conclusion I have reached is that the plaintiff exaggerated the level of his incapacity in the claim affidavit, and likewise exaggerated that level of incapacity when he was examined by Mr Mangos and Mr Battlay. If he was as disabled as he deposed to and described to Mr Mangos, then it is difficult to accept that he would have been able to work as a restaurant manager full- time, and would have needed so little treatment except for massage which would only have given him some symptomatic relief.
83 The alternative conclusion is based upon the submission made by Mr Hore- Lacy that even if I were to accept what the plaintiff deposed to in his claim affidavit, the film and what he described to Mr Mangos and Mr Battlay indicate that he did not have a serious injury incapacity on that evidence.
84 The matter is to be judged by assessing what the plaintiff knew of the facts, when viewed objectively, in determining whether what the plaintiff knew of those facts constituted serious injury incapacity.
85 What the plaintiff knew was that he had suffered an injury which produced a painful condition in his lower back and had done so since the occurrence of the incident. He knew that he was vulnerable to the onset of lower back pain during 2003. He knew that it might require him to seek medical and paramedical attention, and also symptomatic massage treatment. He knew that the onset of pain might lead to the need to be absent from his employment for some days at a time.
86 Furthermore, the plaintiff knew that vigorous sporting activity such as playing football was out of the question. In any event his footballing career had ended some years before hand.
87 I am disquieted by the contents of the claim affidavit deposed to by the plaintiff and the histories taken by Mr Mangos and Mr Battlay. I think the plaintiff deliberately exaggerated his state of health for the purpose of obtaining a monetary reward based upon acceptance that he had suffered a permanent impairment.
88 Furthermore, I have reached that conclusion because there was little alteration in the plaintiff's medical and paramedical treatment from 2003 until 2008 when the extent of his medical and paramedical treatment increased markedly. During those years he was essentially in full-time employment engaged in physically demanding work, as he was with Mr Bell, and he was able to engage in playing cricket at a higher level and was capable of undertaking the role of a fireman with the CFA.
89 To accept Mr Jens’ submissions and his analysis of the evidence means that if the plaintiff had a serious injury incapacity in 2003, he must thereafter have substantially recovered, because his medical and paramedical treatment was modest; he continued working in the hospitality industry full-time; he undertook arduous work for Mr Best; he engaged in a physically demanding sporting activity and the demanding tasks required of a fireman with the CFA, and his evidence is supported by number of persons who knew him, well who have given a consistent account of what the plaintiff was like in 2003; that is, he was functioning reasonably well. None of this sits well with the plaintiff having serious injury incapacity in 2003.
90 In the end I am not satisfied that the plaintiff was entirely truthful when he swore his claim affidavit and when he gave histories to Mr Mangos and Mr Battlay. I consider that the truth was that he was far better able than he deposed to, and his working record and his resort to modest medical and paramedical treatment are proof of that fact.
91 I am not satisfied that he acquired knowledge of facts, which, when viewed objectively, constituted serious injury incapacity in 2003.
Conclusion
92 For the reasons set out above, I will grant the plaintiff leave to bring a proceeding pursuant to section 135A of the Act to recover damages for the injuries he suffered resulting from the incident.
93 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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