Zepackic v Prime Ceramics Property Services Pty Ltd
[2015] VCC 624
•15 May 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
COMMON LAW DIVISION
Case No. CI-12-06069
| SLAVKO ZEPACKIC | Plaintiff |
| v | |
| PRIME CERAMICS PROPERTY SERVICES PTY LTD (in liquidation) | Defendant |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 February, 3 - 6 March, 2015 | |
DATE OF JUDGMENT: | 15 May 2015 | |
CASE MAY BE CITED AS: | Zepackic v Prime Ceramics Property Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 624 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION; Common law action
Catchwords: Back injury; whether injury caused as alleged; whether defendant’s negligence caused injury; plaintiff’s credibility
Cases Cited: O’Donnell v Reichart [1975] VR 916
Judgment: For the Defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Adams QC with Mr J Armstrong | Vincent Verduci & Associates |
| For the Defendant | Mr J Philbrick QC with Mr D Oldfield | Herbert Geer |
HER HONOUR:
1 Mr Slavko Zepackic worked for the defendant as a tiler from the mid-1980s until 1 October 2002. He claims damages for injury to his low back which he alleges he suffered on or about 1 October 2001 as a result of negligence or breach of statutory duty by the defendant. He is limited to claiming pain and suffering damages only.[1]
[1]Under s134AB of the Accident Compensation Act 1985, leave to bring a claim for damages for pain and suffering only was granted by consent, after an appeal to the Court of Appeal from its earlier refusal.
2 Mr Zepackic alleges that on 1 October 2001, while working for the defendant on the tiling of a large showroom floor, he injured his low back[2]. He says that occurred as he was kneeling on the floor and twisting, trying to move a large and heavy bucket of glue and cement mix which it was his role that day to be spreading for the laying of floor tiles. He claims that as he did this he felt a sudden sharp pain in his low back, and that although he worked on at the time thinking that it would pass, the sharp pain in his low back has remained and spread through his right hip and down his right leg. He claims that although initially his knee dominated the focus of medical attention, the condition of his back has been the greater ongoing problem.
[2]He claims that he also injured his right knee that day, but that injury was excluded from this proceeding by Order of His Honour Judge Brookes on 2 February 2015.
3 Mr Zepackic has not worked since October 2002, and although he cannot claim damages for loss of earnings or earning capacity in this proceeding, he alleges that his life has been very seriously affected by pain, sciatica down his right leg, sleep disturbance, restrictions on his general activities and his lifestyle, and that these are likely to continue to impair his enjoyment of life for the foreseeable future.
4 His case is that the system of work which required or allowed him to lift and move a heavy bucket of glue and cement mixture whilst on his knees, twisting to push the bucket at his side, was a breach by the defendant of its duty of care. Further, he alleges that this system existed in breach of the defendant’s duties under the Occupational Health & Safety (Manual Handling) Regulations 1999 (“Manual Handling Regulations”) to identify and control risk of injury by carrying out an assessment of manual handling tasks as to the risk of them causing skeletal injury[3], and to ensure that any identified risk was eliminated or reduced so far as was practicable[4].
[3]Regulation 14
[4]Regulation 15(1)
5 The defendant does not dispute that Mr Zepackic was working for it on the alleged date[5], nor that he now suffers from some back problems. It denies that any negligence or breach of statutory duty by it on or about that date caused the plaintiff’s low back injury, and also disputes the extent of his symptoms and their consequences. In particular, it disputes that any incident or aspect of his work duties on or about 1 October 2001 caused injury to his low back. It argues that the plaintiff is neither a credible nor reliable witness, and that the court should not be satisfied that Mr Zepackic did injure his back in the circumstances he alleges.
[5]He seems to have been a contractor rather than direct employee, but there is no issue that he had worked for the defendant in that capacity for many years and that the defendant owed towards him the same duty of care as it would to a direct employee.
Issues to be decided
6 To recover damages for an injury to his low back, the plaintiff must prove that a breach of its duty of care towards him, or breach of statutory duty, by the defendant was a cause of that injury.
7 In this case, to prove that a breach by the defendant of its duty of care, or of its statutory duty, was a cause of his injury, he first must satisfy the Court on the balance of probabilities that he suffered injury to his low back in the circumstances he alleges, namely while manoeuvring a bucket of glue mixture in the course of his work duties on 1 October 2001. That is the key issue in this case.
8 If he satisfies the court of those circumstances, he must next prove that the injury occurred as a result of breach of the defendant’s duty of care, or statutory duties.
9 Thirdly, if such negligence (or statutory breach) is established, then an assessment must be made of the extent of symptoms and consequences to him from the injury so caused, what pain and suffering and loss of enjoyment of life has resulted, and damages assessed to fairly compensate him for those consequences.
Evidence
10 Oral evidence was given by plaintiff himself, by a co-worker - Mr Dujo Vujic, by one of the plaintiff’s sisters - Mrs Nada Milanovic, a friend and former neighbour - Mrs Dragaca Brankovic, and Mr Russell Miller, consultant orthopaedic surgeon. Medical reports and other documents as set out in the attached schedule were also tendered.
11 For the defendant, oral evidence was given by Mr Christopher Shellie, a director at the time of the defendant company, and Dr Zdenek Dubrava, who was the plaintiff’s main treating general practitioner from May 2002 until 2007. Medical reports and other documents as set out in the attached schedule were also tendered.
Plaintiff’s credibility and reliability as a witness
12 The credibility and reliability of the plaintiff was squarely challenged by the defendant. It argued that his version of events, both as to the occurrence of his injury, and as to any ongoing symptoms, was so unreliable that it should not be accepted, and that it should not form the basis of findings on the balance of probabilities without other supporting evidence.
13 The plaintiff’s counsel submitted that on the contrary, I should find him to have been intelligent, dignified and careful in giving his evidence, conceding matters if they were in the medical records or reports even if he could not recall them, and therefore that he should be found to be reliable on the matters which he said he positively recalled.
14 In assessing the plaintiff’s general credibility as a witness, I have taken into account and made allowance for the fact that English is not his first language, and although he appears to speak and understand it well enough not to need an interpreter, the finer points of tenses and complexity in what he was being asked did not always seem to be fully understood. I have also taken into account that although not specifically claimed as an injury, he has suffered some psychological symptoms over the intervening years and been taking medication for those, which probably also had some impact on this memory.
15 My impression of the plaintiff’s general presentation in his evidence was that he was quite careful and much of what he said was plausible. My general impression was that he was not deliberately lying, but I did think there was some deliberate exaggeration, of symptoms and their impact on his life. Clearly he has lived with the litigation process for very many years, and that inevitably will have caused him to focus on some details and overlook others. I find it highly likely that the litigation process has caused him to have reconstructed some events in his memory, from being repeatedly asked to recall and explain details of events by lawyers and doctors. I found understandable many of the instances where he claimed not to recall some events or details of them, given the passage of time (now more than 13 years since the alleged incident causing injury).
16 However, there were some matters on which he was objectively shown to be wrong. Two clear instances in my view were the following.
(i) He denied having felt back pain at all after a motor car accident about six weeks before the incident the subject of this claim[6], whereas such a complaint is not only recorded in the GP clinical notes for his attendance on the day of the car accident[7], but is also mentioned subsequently in those clinical notes as the source of ongoing back pain[8].
[6]T 73, line 9-10,12-13
[7]Exhibit C – entry for 22 August 2001 -
[8]Exhibit C – 14 November 2001; 6 December 2001.
(ii) He denied ever being treated in hospital for his back pain[9], whereas not only is he recorded as having told Dr Dubrava on 4 April 2005 of having been in hospital with right sciatica when pain got intolerable after lifting a monitor at home, and having been given a morphine injection in Casualty, he also later had an explanation of shifting a monitor on a desk but not lifting it. He also said he had been in hospital in Bosnia for his back[10] after that.
I can understand that some matters may be forgotten under the strain of having to recall so many details during evidence, but these instances reflected that even when he purported to have a clear enough memory to deny propositions outright, he was shown to be wrong.
[9]T 66, lines 4-8; T128 lines 11-15
[10]T128, lines 21-22
17 My impression was that there were some matters on which he exaggerated, such as the following.
(i)That on the day of the alleged incident, 1 October 2001, he felt sharp pain in his back[11] such that he has never felt before[12]; and that the pain has been like that, and going into the right hip and down the right leg – all very painful since 1 October 2001 – on a daily basis [13].
(ii)That although he continued to work until the end of 2001, over the following 6 to seven months he only worked about half of the time due to as a result of his back symptoms.
(iii)That in 2002 and 2003 if he twisted or bent a little he felt very sharp pains in his back, like someone stabbing him with a knife[14].
(iv)That in 2002 and 2003 he could do almost nothing for himself in his home, except maybe washing a plate or cup or putting a T-shirt in the washing machine, and could only walk to shop for basic items like milk, bread or Weetbix, and that his sisters and a friend did all his other housework and shopping[15] .
(v)That he was bedridden for two weeks many times[16] as a result of his back injury, starting about 2008 -2009[17].
[11]T 55, line 28
[12]T 56
[13]T72, lines 8 – 20; T74, lines 12-18
[14]T64, line 26 – T65, line 3
[15]T 65, lines 5-20
[16]T66, lines 1-3
[17]T72, lines21-22
18 It was also my impression that there are some matters on which Mr Zepackic has reconstructed in his memory an explanation for what he has been asked to explain. Specifically the following seem to me to be based significantly on reconstructed memory.
(i) That the reason he attended his GP on the day of a motor car accident which he says was minor and caused only a little pain in his neck, was because he had been told by his union and at work that all incidents involving injury however minor should be reported[18].
[18]T74, line 28 – T75, line 2
(ii) That he told his doctors about the back injury (stabbing pain in back, pain in right hip and going down right leg) about two, three or four months after it first started[19].
[19]T74, lines 22-27
(iii) As an explanation for not complaining about his back injury while doctors were concentrating on his right knee, he said that he believed that if they fixed the knee that would resolve the problem right up his leg and right hip into the back.
(iv) That when he told his doctor about hurting his back lifting a computer monitor in 2005, he meant moving a monitor to the side rather than lifting it.
19 While I do not consider the plaintiff’s evidence totally unreliable, I have enough reservations about the reliability of parts of it, that on the key issue of whether he was injured in the manner alleged, I have closely examined and looked for any support or inconsistency between his own evidence and all of the surrounding evidence to make my findings.
Liability
20 At the outset of the hearing the plaintiff’s case was confined to an allegation that he suffered injury to his low back in the circumstances he describes as occurring on 1 October 2001. Therefore, the threshold and critical question is whether I can be satisfied on the balance of probabilities that he did injure his back in the manner he alleges, namely when manoeuvring a bucket of glue mix on 1 October 2001.
Did the plaintiff suffer injury to his low back on 1 October 2001?
21 Mr Zepackic’s evidence is that on 1 October 2001, he was working for the defendant at premises which were a Toyota showroom on Cheltenham Road, with another tiler whose name he said was Don Voic (meaning Vujic). Don was laying the tiles and the plaintiff was mixing and spreading the cement and glue mixture onto which the tiles were to be laid. They had no labourer assisting them and no mechanical aids such as trolleys on wheels to lift and carry.
22 Mr Zepackic says that in a 20 litre bucket of glue he mixed about half the content of glue with a full 20 kg bag of cement powder and almost another half bag, so that he estimates the full weight to have been about 40kg. He need to carry the full bucket to the point where he was to start to spread the mixture and then carry out his work of spreading it in a kneeling position on the floor. He would use a spreader – about 12 or 13 inches long. He was kneeling on a concrete floor doing this, taking mixture from the bucket and spreading it and as they started at the farthest wall, he needed to regularly moving backwards towards the storeroom door or exit.
23 He says that partway through this job that day, he was kneeling on both knees, and needed to push or drag the bucket to his next position, which involved keeping the bucket to his left. He says that doing this he was twisting to push it and “this is how it happened that I felt the pain in my back, hip and my knee.”[20] He says that he felt pain in his lower back and right buttock – where the joint is, the pain in the back being in the centre at the belt line. It was a sharp pain not like pain he had ever had after heavy work before.
[20]Transcript (“T”) 54, L21-22
24 He says that he worked on for the rest of the day and on the following couple of days, expecting or hoping that the pain would resolve. He said he could remember this because it was on the first or second day afterwards that Chris Shellie, the owner and supervisor at the jobs of the defendant, visited the site, and that he told Mr Shellie of the incident and injury.
25 The only other person present when the injury is said to have occurred was the other tiler, Mr Vujic. He said that he recalled that on occasions the plaintiff worked with him, including at the Toyota premises job. He recalled that one day the plaintiff had hurt himself – hurt his knee - and Mr Vujic recalled telling him to go to the doctor, but Mr Zepackic said he would be all right and kept working. Mr Vujic did not see the injury occur, and recalls that Mr Zepackic said he had hurt his knee. He did not know the actual date of those events.
26 While Mr Vujic’s evidence is consistent with the plaintiff’s general version of events, and while the specific date is not crucial, Mr Vujic’s evidence does not go so far as to support a complaint of a back injury (as opposed to the also alleged knee injury) occurring on that occasion[21].
[21]Mr Zepackic had also alleged a knee injury from this incident, which has been excluded from his claim in this proceeding, so Mr Vujic’s evidence is not inconsistent with the plaintiff’s.
27 The defendant challenges that any such incident occurred on or about the date alleged. The core of the challenge is that the plaintiff should not now be believed that it did because he did not report or complain of a back injury from such an event until many years later. Specifically, the defendant denies that he reported the injury or incident to Mr Shellie at the time, and further argues that he did not report it for several more years, or to his own doctors, and not even to the first solicitors he consulted.
28 Consideration in some detail of what was reported and when, and when there was opportunity to make earlier complaint, is therefore necessary.
Reports to Defendant
29 First, Mr Christopher Shellie, a director of the defendant at the time, gave evidence confirming that the plaintiff (whom he called Joe) did work on occasions for the defendant as a tiler on jobs with Mr Vujic. He said he could not recall having any report of injury from Mr Zepackic until he received a claim form towards the end of 2002, which referred only to a knee injury. He said that if he had been told that Mr Zepackic had hurt his back the defendant [“we”] would have insisted that he not work.
30 A claim form was submitted a year after the alleged incident, signed by the plaintiff on 18 October 2002[22]. In that form, (in parts he concedes are in his handwriting) for details of the injury, he described the injury/condition as “knee injury”, and the part of his body affected as “knee”. Further, for the date of the injury/condition he wrote “over period” – which he says meant over the period; and ticked a box to answer “Yes” to a question whether the injury or condition arose gradually over a period of time. The defendant relies on this form as inconsistent with the occurrence of a back injury on 1 October 2001. In particular its omission of any mention of a back injury at all, and also its failure to mention the incident of spreading the cement glue in causing the knee injury, are submitted to be telling omissions.
[22]Exhibit 4
31 The first mention of injury in circumstances such as those on which the plaintiff now relies was in October 2003, in a form called “WorkCover Top Up Claim”.[23] In the part he acknowledges was filled out by him, he specified the date of the accident as 1/10/2002, and where asked to state in full detail exactly how the accident occurred, wrote: “I was kneeling and spreading glue on floor when [?] twisting left and right then I feel pain in my right knee.” The injury was described as to his right knee, and he gave Mr Vujic’s name as a witness to the accident.
[23]Exhibit 3
32 Even though there was no mention of a bucket in the incident, and it is said to have occurred on 1 October 2002 (which I take to be a slip), I take this to be a description close enough to how the plaintiff now describes the incident in which he claims to have hurt his back. However, it does not support the critical issue in this case, as he did not mention any injury to his back. The defendant argues that not only does it not support his case that he injured his back in that incident, but that the omission of mention of the back is evidence that he did not.
33 In fact, it was not until 2007 that the plaintiff lodged a WorkCover claim form in respect of a back injury[24]. In that he described injury to his L4 back, right hip and left knee, with continuous pain in his back and hip and left knee, and that just before the injury occurred, he was fixing tilings to the floor and was shifting tiles and glue. In that form he said he had reported the injury on 1 October 2001 to Chris [Shellie], and that doctors who were or would be providing regular treatment for the claimed injury were Dr Dubrava and Dr Igor Andrianov.
Mentions and consultations with treating Doctors
[24]Exhibit 7
34 The defendant relied on the clinical notes from the Total Care Clinic[25] which Mr Zepackic attended for some years before and after the alleged incident and injury. It also called Dr Dubrava, the Plaintiff’s main treating doctor at that clinic over some years after the alleged injury.
[25]Exhibit C
35 The clinical notes indicate that Mr Zepackic had been attending as a patient since 1998. It was not until May 2002 that he was first seen by Dr Dubrava, and Dr Dubrava seems to have become his regular doctor from about July or August 2002, until 2007. He last attended for treatment in March 2007, with some subsequent attendances about forms and reports, including in relation to whether or not Dr Dubrava would write a WorkCover certificate in respect of his back.
36 The only attendance for back pain before 2001 appears unrelated, in 1999[26].
[26]An attendance on 22 November 1999 for back pain and chest pain when he was working and twisting as a tiler, but this was investigated as heart-related - ECG ordered
37 On 22 August 2001, Mr Zepackic presented complaining of lower back pain and a stiff neck following a motor vehicle accident that day – “rear ended”. He saw Dr Howard Grey who recorded on examination “whiplash ++ muscular LBP +” and Voltaren Rapid was prescribed. There was no further attendance until after the date of the alleged back injury.
38 On 8 October 2001, it is recorded that Dr Roth prescribed further Voltaren Rapid, but there is no record of the patient’s complaints or any examination.
39 On October 2001, he is recorded as seeing Dr Roth for viral/flu illness for which an antibiotic was prescribed.
40 The next presentation was on 9 November 2001 to Dr Grey, concerning upset in relation to de facto problems, for which a tranquiliser was prescribed.
41 The next attendance was on 14 November 2001, telling Dr Roth he wanted DNA testing (unrelated to any injury), and the entry then states “still lower back pain after MVA in Aug”.
42 The next entry is for 6 December 2001, seeing Dr Howard Grey in which the notes record: “Tiler for 15 years. Persistent LBP. No radiation. Has been worse since his MCA in August.”
An x‑ray of the lumbosacral spine was requested. It seems that there was a further attendance the following day, with lower back pain discussed and “XRs very good”. Vioxx tablets were prescribed.
43 There were two attendances in early January 2002 relating to DNA testing, then on 16 January 2002, he saw Dr Grey complaining of swollen painful right knee. It is recorded that he had done no tiling for 2.5 months until today. Voltaren was prescribed.
44 Three weeks later, on 5 February 2002, there was a further attendance in relation to the right knee still troubling him, as a result of which he was sent for x‑ray and later that week the x‑ray result was discussed. There is a notation that he had been tiling for 18 years. Further Vioxx tablets were prescribed.
45 An attendance in April was for unrelated matters and then on 13 May 2002, he saw, for the first time, Dr Dubrava. It is noted there was a flare up of right knee pain, having had open knee surgery years ago. On examination, tiny effusion with full range of movement and Vioxx was prescribed.
46 On 9 July 2002, there was an attendance on Dr Chung, about his right knee pain, noting that he usually works as a tiler but had not worked eight months because of no work. After a further appointment on 26 July, with Dr Dubrava for chronic knee pain and fluctuating effusion, he was referred for his knee problem to Mr Nigel Broughton (whom he saw in October).
47 Over the following months when he attended he was still awaiting knee surgery for a meniscus tear, which finally occurred in March 2003, but after that he continued to report knee pain, leading to further exploratory scans and treatment.
48 There is no other mention of back pain[27] in his clinical notes until 9 January 2004. On that date it is recorded Dr Dubrava saw him for “recent flare up of lower back, recurrence, no radiation to legs”. Panadeine Forte tablets were prescribed and Vioxx. In four following attendances over the next two months there is no further note about back pain. Then, on 18 March 2004 he saw Dr Dubrava, complaining not only of right knee pain but also lower back pain with radiation to both legs. The note is “allegedly since December” and he was sent for CT scan of his back, recorded by Dr Dubrava as “normal”.
[27]On 4 August 2003 it is recorded he had an itchy back with no rash and dry skin with Sorbolene to be used.
49 Over the next 12 months, there were numerous attendances for his right knee having flared up and awaiting further surgery, but no mention of his low back symptoms again until on 11 March 2005, a note of right sciatica.
50 Then, on 31 March 2005, he is recorded as telling Dr Dubrava of pain in lower back and right groin, worse with movements, and on examination he had a limp, tenderness, lumbar movements restricted, and the “impression” was spinal, musculoskeletal pain. Tramal was added to Voltaren medication.
51 On 4 April 2005 he attended, as is recorded as telling Dr Dubrava of having been in hospital with right sciatica when pain got intolerable after lifting some monitor at home, having paraesthesia in S1 segment, had Xray in Casualty, and was given morphine injection in casualty, all previous other medication failed. Three days later reporting 2 weeks of right sciatica and was sent for a CT scan of his lumbar spine, the result showing disc protrusion at L4/5.
52 Shortly afterwards he went on a planned trip to Europe, next returning to his GP on 2 December 2005, seeking a Workcover certificate for his knee, a Centrelink certificate, and it was noted as well as right sciatica pain while overseas he had to go to hospital and this pain troubled him many months now, prior to his trip overseas. It is noted that he intends to claim it as a work related injury, but that not discussed further that day. Tramal and Voltaren were prescribed.
53 On 3 December 2005, Dr Dubrava took a history that he stopped working as a tiler in October 2002, has not had WorkCover back injury; has had back pain for last 5-6 years; it deteriorated earlier this year before his trip to Europe. He still suffers from LBP with radiation to right leg, calf and foot. Dr Dubrava has noted “I di bit see likely success for him to pursue work claim but he is free to do so if he wants, he will talk to his solicitor first. There was reference to another CT scan and referral to a specialist.
54 There are further entries about attendances about his back over the following 15 months, with prescriptions written for strong pain-killing medication. It appears that by early 2007 the therapeutic relationship was breaking down with Dr Dubrava resisting relating his back condition to his previous work.
55 Dr Dubrava gave evidence, that he started working at that clinic in 2002, becoming the plaintiff’s regular doctor from about July 2002, by which time he had already been attending for a right knee injury. From checking the records, he said the first time Mr Zepackic mentioned back pain to him was in March 2004, at which time he referred him for a CT scan of his lumbar spine that was reported as “normal examination” – 23 March 2004.
56 Dr Dubrava said that if there had been complaints of back pain over the following year he would have noted them. In March 2005 he attended againf for low back and groin pain, and on 4 April 2005 stating he had been to hospital with right sciatica when pain became intolerable and was given morphine in Casualty.
57 Dr Dubrava said the right knee had been dominant until about 2006 when the knee had “reconciled” and the back became more prominent and led to referral to a specialist – Neurosurgeon, Mr D’Urso. In 2007 Mr Zepackic asked him to give a WorkCover certificate for his back condition, but Dr Dubrava had refused, as his view was that he had not been told of a work-related back injury until many years after the plaintiff had ceased work, so was unwilling to relate it to his work.
58 Dr Dubrava agreed that with the pressure of only having about 10 minutes to see patients the focus would be on conditions the patient mentioned, but he said that he would deal with everything he knew about. He had been this patient’s main doctor since 2002. He mentioned back pain for the first time in 2004. He asked for the WorkCover certificate in 2007, and left shortly afterwards.
59 On leaving Dr Dubrava’s clinic Mr Zepackic went to Dr Andrianov whom he still attends.
60 There was no evidence from Dr Andrianov. The defendant submitted that I would be in error not to apply adverse inferences[28] from the plaintiff’s failure to call or tender reports from the doctor who has been treating the plaintiff for the last 7 years and who could be expected to have been able to give evidence about his condition over that time. As Dr Andrianov did not start treating the plaintiff until about 2007, I would not expect him to be able to give any evidence about the history of the plaintiff’s back condition before then, other than what he was told by the plaintiff or learnt from other medical material which is before the court. For that reason, on the issue of whether or not the plaintiff suffered injury to his back in the alleged circumstances on 1 October 2001, I do consider that he was a witness one would expect the plaintiff to have called and do not draw any inference from the failure to adduce evidence about this issue from him[29]. To the extent that he seems to have been prepared to give WorkCover certification for the plaintiff’s back injury, I have no information as to whether that was on the basis of his work duties over a protracted period, which it seems to me there may well be an argument had contributed to the development of degenerative change in his lumbar spine.
[28]O’Donnell v Reichart [1975]VR 916
[29]I would have drawn such inferences on issues of his treatment and ongoing condition relevant to assessment of damages.
61 The plaintiff was referred in October 2006 for Neurosurgical opinion to Mr Paul D’Urso. He was investigating the cause of neurological deficit in his legs and what was described as disabling ongoing symptoms in his right hip and leg, including paraesthesia in the leg. To exclude other possible causes he sought a nuclear bone scan of the right leg, and an MRI of the lumbar spine, but did not believe that the symptoms in his leg were emanating from his back. Insofar as he supported there being a connection with his work, it was from a history of heavy bending, twistin and lifting activities and not specific to the alleged incident on 1 October 2001[30].
Medico-legal reports
[30]Exhibit J
62 The plaintiff relies on the evidence of Mr Russell Miller, and his report, and on reports by Mr Brain Barrett[31], Mr Kevin King[32], and Mr Daryl Nye[33], for their diagnoses in relation to the plaintiff’s back condition and opinions about its cause.
[31]Exhibit D
[32]Exhibit E
[33]Exhibit F
63 Mr Miller, orthopaedic surgeon, first examined the plaintiff in May 2011, then again in July 2012, March and December 2014. He took a history that the plaintiff had onset of back pain and right knee problem in about October 2001 when kneeling at work spreading tiles and pushing glue and lifting the heavy bucket of glue, that he reported the matter to his boss, kept working, and saw his local doctor about two months later. He ceased work approximately 12 months later because of deteriorating symptoms, and had not returned to work. He subsequently saw Mr Broughton and was treated conservatively, and subsequently also saw Mr Paul D’Urso and was treated conservatively.
64 Mr Miller regarded this as a complex case. He finds evidence in the later MRIs of degenerative disease in the lumbar spine, but notes that the definite neurological deficit in the plaintiff’s right leg may be due to his back or to the common peroneal nerve (as was Mr D’Urso’ opinion), or to both. Mr Miller considered that the significant physical work he had undertaken as a tiler for a protracted period had contributed to the evolution of the lumbar spine disease and thought there had probably been a further more specific work injury around the period in October 2001 when (as Mr Miller understood) his symptoms had markedly flared.[34] He did not think he would be assisted by surgery (whether to common peroneal nerve or lumbar spine) and thought the prognosis remained only fair.
[34]T 219, lines 15-25
65 In cross-examination he disagreed that what was read as a “normal” CT scan of the lumbar spine in March 2014 indicated that there was little wrong with the back then. He said that there was little point trying to place a diagnosis on a back based on radiology alone. A diagnosis requires three pillar or “triad” - the clinical history, the clinical examination, as well as what tests such as radiology. Having himself found neurological deficit on clinical examination, he considered that in conjunction with the history he had of symptoms and the later radiology. He also said that either the scan of March 204 or that of April 2005 had to be wrong, because one can’t develop the described degree of stenosis in the 2005 scan report in as little as a year’s interval between them.
66 Mr Barrett first saw Mr Zepackic in March 2008, on a referral from Dr Andrianov[35], and was given a history of an incident on 1 October 2001 while bending and lifting tiles and a heavy bucket of tile glue, and that the low back pain came on suddenly and pain shot down his right thigh and knee region. He had not history of any previous low back pain or spinal injuries, and does not mention the car accident in August 2001.
[35]Whether that was at the plaintiff’s request is not relevant on the issue of what history forms the basis of his diagnosis
67 Mr King in July 2009 describes at length his difficulty obtaining a history from the plaintiff’s frustratingly vague accounts and cross-referring to treating doctors’ reports. He considered this was partly due to Mr Zepackic compartmentalising his complaints and problems, and notes that at first he described only a right knee injury from the 2001 incident when spreading glue, then much later said he felt sharp pain in his back that day, which went into the leg.
68 Mr Nye in September 2009 had a history of an incident on 1 October 2001 when he was kneeling spreading tile adhesive from a bucket, and when so engaged pain in the right hip and knee developed. With the knee swelling that evening, he attended his doctors. Mr Nye mentions that an MRI of the spine was arranged in March 2004 as the subject had reported pain in the right hip area, extending to the gluteal and lower spine regions, and allegedly exacerbated by head flexion. He does not mention when these symptoms emerged. He understood that referral to a Neurosurgeon who did not recommend surgery followed. He did not see the radiology of March 2004.
69 The diagnoses and opinions about the plaintiff’s back condition since 2008, and its likely cause, are all predicated on acceptance of his history to those doctors of an incident in or about October 2001 while spreading glue at work[36]. None of these doctors took a history until many years after the alleged event and all were after he had reported an injury while spreading glue (initially causing an injury to his knee), and all also after he had submitted a WorkCover claim for a back injury. For these reasons, in my view none of these doctors’ opinions can lend support to the issue of whether or not the described incident did occur.
[36]Mr Barrett appears to describe the incident occurring while standing rather than kneeling, but the others are based on him kneeling at the time.
70 The defendant tendered medico-legal reports from the period 2003-2004[37]. Understandably, each was specifically to assess his right knee as he had lodged a WorkCover Claim form in October 2002 in relation only to an injury to that knee.
[37]It also tendered those of Mr Shannon but as he did not see the plaintiff until 2009 he cannot shed any more light on the key question than the plaintiff’s medico-legal examiners..
71 Mr Michael Troy[38], orthopaedic surgeon, saw the plaintiff on five occasions between January 2003 and June 2004, each time in respect of his right knee. Mr Troy had a history in respect of the knee injury, that apart from problems some 13 to 15 years earlier, the then present problem started more than a year earlier when his right knee became painful again, swelling with fluid, difficult to bend and walk so he went to see a local GP who place him on Vioxx, then Voltaren, then he was sent for x-rays, but with continuing difficulties he saw Dr Chung who sent him for an ultrasound, and then he saw Dr Dubrava of the same clinic who referred him to Mr Broughton. In none of Mr Troy’s reports is there any mention of an incident or injury when kneeling spreading glue or moving a bucket. In none of those reports is there mention of pain or other symptoms in any other part of his right leg, right hip or buttock, or low back.
[38]Exhibit 11
72 Mr Hugh Weaver, orthopaedic surgeon, examined the plaintiff in February 2004[39]. He had a history that in approximately September 2001 the plaintiff experienced what he described as “a sort of accident” when kneeling, undertaking gluing work on the floor and experienced pain affecting his right knee. He saw his GP soon afterwards (three doctors at the same clinic). There is no mention in the report of complaints of back or other right leg pain than in the knee.
[39]Exhibit 12
73 Dr Barton[40], occupational physician, saw him in August 2004. He records a history that Mr Zepackic twisted his knee in September 2001 as he was spreading glue with another person laying tiles, kneeling and manoeuvring a 20 litre bucket. He had thought the problem would settle like many other aches and pains that he experienced following days of work, but began to leave work early, and after several weeks consulted his local doctor. There is no mention of symptoms in parts of his right leg other than the knee, nor in his right hip or buttock, or low back.
[40]Exhibit 10
74 Even though each of the defendant’s medico legal examiners would have been directed to report on his right knee, the lack of any mention of other right leg symptoms, or back pain, to specialists experienced in eliciting whether there could be other causes contributing to impaired ability to work or function domestically, does not support the plaintiff’s evidence that he had a very painful back throughout that period, with radiation through his right hip and down the leg. Further, examinations after the claim form of October 2013 have a history of an event while kneeling spreading glue, but no mention of his also suffering back pain in that incident.
Solicitors’ letter
75 There is a letter from Slater and Gordon to the plaintiff in May 2003[41] after he apparently consulted them the previous month for advice about his right knee injury. It makes no mention of any instructions about an injury or symptoms in his low back, hip or buttocks, or right leg apart from the knee injury. The description of the knee injury is of it developing over the course of his duties as a tiler especially kneeling on concrete floors.
[41]Exhibit 8
Conclusions
76 For reasons initially stated, I do not regard the plaintiff’s evidence as totally unreliable, and have not disregarded his adherence during his evidence to a version of events which he now may well genuinely believe to be true. However, if he had in fact suffered a sudden sharp pain in his low back with pain referred into his right hip and down his leg on 1 October 2001, which did not resolve as he had hoped but remained very painful for the following years, on a daily basis, it is almost inconceivable that he would not have been telling his doctors about it. Even if he deferred going to doctors for it over the first few days in the belief that it would resolve, then when attending the clinic for other ailments which he did at least a half dozen times in the next three months, one would expect it to be mentioned. Instead, there are two instances when low back pain is noted, but connecting them with the August motor car accident and not with a specific incident at work.
77 Further, after Dr Dubrava became his regular doctor, and even though his right knee seemed the dominant problem from that time, it is difficult to accept that he would not have mentioned at all the degree of pain he claims to have been suffering, or that he had suffered it since an incident at work.
78 It is even more difficult to accept that if the pain was so serious as he describes he would not have included his back, hip and leg pain as well as his right knee in his October 2002 WorkCover claim form, and even more unlikely that he would not have mentioned it in the October 2013 claim form in which he first described an incident of suffering injury while spreading glue, but mentioned only his right knee.
79 Finally, there is the letter from Slater and Gordon in May 2003 which reflects no mention of a back injury nor of a work incident on 1 October 2001 in which he suffered injury at all, both inconsistent with his evidence here that he was suffering ongoing sharp back pain over that period.
80 Ultimately the problem for the plaintiff is that in my view his evidence cannot (on the balance of probabilities) be reliable both as to the origin of his back condition and as to the extent of symptoms from it. I consider that he has greatly exaggerated in his description of the extent of any low back symptoms he was suffering in the first two to three years after the alleged incident occurred. If he were really suffering daily from sharp knife-like pain in his low back, I find very unlikely that he would not have mentioned it or its source to the doctors he was visiting quite often over that time for treatment, or to medico-legal examiners for the defendant, nor in claim forms he submitted for his knee injury, nor to the solicitors he consulted about his knee injury.
81 Conversely, if he were not suffering significant ongoing back symptoms in those first couple of years, it makes less likely that a specific incident in 2001 was a material cause of the condition or level of symptoms he has reported since about March 2005.
82 The defendant points to the onset of much more significant low back pain and sciatica in March to April 2005, and submits that it is consistent with his having suffered a lumbar disc injury when lifting a monitor as described in medical records about his visit to hospital Casualty on 4 April. As he had reported low back symptoms to Dr Dubrava in March, I would not be able to make that finding even if it were necessary. There is cogency to the argument however, that the time between the alleged cause of injury on 1 October 2001, and the onset of serious low back symptoms in March or April 2005, does not support a causative connection unless I believe the plaintiff’s evidence alone that he suffered continuing substantial back symptoms over that period.
83 For these reasons, I am not satisfied on the balance of probabilities that the plaintiff suffered an injury to his low back while kneeling, spreading glue or moving a bucket on or about 1 October 2001. It follows that I cannot be satisfied that such injury was caused by any breach of duty of care, or of statutory duty, on the part of the Defendant.
84 It may be that the plaintiff’s work past work duties with the defendant contributed to the back condition from which he now suffers, but that is not how his case was ultimately put, and his claim in this proceeding must therefore be dismissed.
CI-12-06069
Zepackic v Prime Ceramics Pty Ltd (in liquidation)
SCHEDULE OF DOCUMENTS EXHIBITED
| Number and Identifying Mark on Exhibit | Short Description of Exhibit | Court Book Ref |
| A | Google map of site of Patterson Cheney Toyota located at Cheltenham Road, Keysborough and photograph of the site | |
| B | Reports of Mr Russell Miller dated 17 May 2011, 1 August 2012, 11 March 2014 and 31 December 2014 | PCB182-188, 189-195, 196-202, 203-211 |
| C | Medical records of Total Care Medical Group for the period 1 May 2000 to 7 January 2009 | |
| D | Medical reports of Mr Brian Barrett 12 March 2008, 13 March 2008, 28 March 2008, 11 November 2008, 31 March 2009, 16 November 2009, 12 May 2009, 6 May 2010 and 13 March 2012 together with referral letters | PCB144-145, 146, 147-150, 151-152, 153-157, 158-159, 160-161, 162-165, 166-168. |
| E | Reports of Mr Kevin King dated 3 July 2009, 31 March 2010, 7 June 2012 together with referral letters from Plaintiff’s solicitors | PCB125-132, 133-136, 137-143 |
| F | Report of Mr Daryl Nye dated 2 September 2009 | |
| G | Plaintiff’s interrogatory number 6 for the examination of the defendant and it’s answers thereto | PCB42 and 49 |
| H | Occupational Health and Safety (Manual Handling) Regulations 1999 | |
| J | Reports of Mr P D’Urso dated 30 October 2006, 21 November 2006, 29 June 2007, 29 June 2007, 29 October 2008, 29 April 2008, 11 December 2009, 24 May 2012, 17 April 2014, 25 November 2014 | PCB107-124 |
| 1 | Copy of Plaintiff’s tax returns for the financial years 2000-2001 and 2001-2002 | |
| 2 | Pages 43-44 of transcript of hearing before His Honour Judge Howie on 25 August 2010 | |
| 3 | Copy of Workcover top up claim form dated 31 October 2003 | PCB217-222 |
| 4 | Workcover Worker’s Claim Form signed by Plaintiff dated 18 October 2002 | PCB212-214 |
| 5 | Photograph of bucket labelled “Tiflex Mastic” showing proportion of liquid for mix | |
| 6 | Photograph of bucket showing 3-4 inches higher level than usually filled by Plaintiff | |
| 7 | Workcover Worker’s Claim form dated 12 June 2007 | PCB225-227 |
| 8 | Copy of letter from Slater and Gordon to Plaintiff dated 23 May 2007 | |
| 9 | Reports from Dr Michael Shannon dated 7 September 2009 and 7 March 2014 | DCB28-34, 35-41 |
| 10 | Reports of Dr David Barton dated 13 August 2004 | DCB 41(g)-41(k) |
| 11 | Reports of Mr Michael Troy dated 16 January 2003, 24 April 2003, 1 September 2003, 23 January 2004 and 9 June 2004 | DCB41 |
| 12 | Report of Mr Hugh Weaver dated 27 February 2004 | DCB41(an) – 41(as) |
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