The evidence as to how and when Mr Arsic was injured
88 Ainslie-Wallace DCJ found that Mr Arsic injured his back at the time and in the way he alleged. The evidence, however, adduced by him in this regard was not always consistent. It was open to the judge to regard these inconsistencies as immaterial, as she did. But, her Honour does not appear to have paid due regard to the way in which these inconsistencies are capable of supporting Goodrich's attack on Mr Arsic's description of the work he was doing when he was injured.
89 Mr Arsic, in his evidence in chief, testified that he first recalled feeling pain in his back on 31 January 2003. He remembered that that was a Friday and he had to spend the weekend in pain. By then he had been working in the reject cage for at least a week.
90 Mr Arsic said that a particular event brought about the pain in his back. He said that this was the lifting of a particular rim in the reject cage. He described in detail how he had stood to lift the rim, where his feet were, and how he twisted his body.
91 After Mr Arsic first felt pain he went outside and sat on a bench. He said his pain was so great that he could not sit properly. Having rested for five minutes, he returned to the receiving section where he continued to receive wheels rolling off the truck.
92 He said that he did not first report the injury to anyone because he believed that if he did so he could lose his job. For the same reason he did not at that stage see a doctor about his back.
93 He spent all weekend in bed. He slept on the floor and took Panadol but the pain remained the same. He returned to work but felt great pain, particularly when sitting down. The pain radiated down the left leg to the heel.
94 On 17 February 2003 Mr Arsic "smacked" his left elbow against a steel cage. His elbow became swollen. On the same day he went to see Dr Lau who certified that, by reason of his left elbow, he was not able to do work that involved the use of the left hand. Dr Lau suspected that Mr Arsic had been bitten by a spider but did not find any bite marks. On 19 February 2003, another doctor, Dr Kafaris, certified that, by reason of the injury to the elbow, Mr Arsic could only do light pushing or pulling. Dr Kafaris gave a similar certificate on 14 March 2003, again on 28 March 2003, on 3 April 2003 and on 11 April 2003.
95 Between seeing Dr Kafaris on 19 Februry 2003 and 14 March 2003, Mr Arsic saw his general practitioner Dr Stojanovic on 26 February 2003. Dr Stojanovic's notes record that Mr Arsic consulted him about the injury to his left elbow. An x-ray was taken of the elbow. The x-ray was normal. Dr Stojanovic recommended that Mr Arsic stay off work on 26 and 27 February.
96 None of these doctors' notes, made up to this stage, record that Mr Arsic made any mention of an injury to his back.
97 Mr Arsic consulted Dr Stojanovic, again on 14 April 2003. Mr Arsic then complained of "low back pain over the last few months". Dr Stojanovic recorded in a note that Mr Arsic had had three sessions with a chiropractor without improvement.
98 Dr Stojanovic's notes also record a consultation on 17 April 2003 when he reviewed Mr Arsic's back pain. According to the notes Mr Arsic recalled "an event at work around Christmas time when worked for 12 hours and developed acute back pain". In fact, neither at that stage nor on 31 January 2003 did Mr Arsic work 12 hours a day.
99 According to Dr Stojanovic's notes, on 22 May 2003 Mr Arsic "clarified injury date to 31 January 2003".
100 When cross-examined, Mr Arsic appeared to have forgotten that he had seen Dr Stojanovic on 26 February 2003. Mr Arsic agreed that when he "first" saw Dr Stojanovic he told the doctor about his back injury, the pain in his leg and that it happened at work. It was then put to him that he had seen Dr Stojanovic on 26 February 2003. Mr Arsic said that he could not recall having told Dr Stojanovic on 26 February 2003 about any injury to his back.
101 It was put to Mr Arsic that, prior to 14 April 2003, although he had so much pain in his back and his leg that sometimes he could hardly move, he did not, in this period, bother to see Dr Stojanovic or consult any doctor about his back. He asserted, however, that he had mentioned his back pain to the doctors but they had failed to make a note of his complaint.
102 The judge observed that Mr Arsic had complained about his back to Drs Lau, Kafiris and Stojanovic before 14 April 2003 "and there is no note of that complaint". The judge commented:
"Perhaps this was an oversight by the doctors, one cannot tell. There are inconsistencies in the evidence of history given by the plaintiff of the onset of his problem to which the defendant went in great and painstaking detail in order to make good his attack on the plaintiff's credit."
103 According to a report by Dr Stojanovic dated 24 December 2003, Mr Arsic told him that the pain in his back occurred "while he was moving airplane tyres at work on 31 January 2003". According to a report by Dr Dixon, an orthopaedic surgeon, dated 23 June 2003, Mr Arsic injured his back "when moving aircraft tyres on 31 January 2003".
104 According to a report by Dr George M Weisz, an orthopaedic surgeon, dated 28 December 2003, on 31 January 2003 Mr Arsic, "for the first time ever" experienced sharp low back pain. According to Dr Weisz's report Mr Arsic stated this occurred whilst he was "wheeling large aircraft tyres". According to Dr Weisz, Mr Arsic stated "this work was performed 50 times a day, lifting 15 to 30 kilograms each time". It was on one of these occasions that the pain was first experienced.
105 In a report dated 18 June 2003, Dr Ian Barrett, an orthopaedic surgeon said:
"It was difficult to obtain an exact history from Mr Arsic. Although he listed a date of injury as at 31/01/03, he said that there was no one incident on that day."