Smith v Canberra Press Pty Ltd [2009] VSCA 200

2 The applicant (the plaintiff below) sought an order in the County Court for leave to commence a common law proceeding for damages pursuant to s 135A(4)(b) of the Accident Compensation Act 1985 in respect of injuries suffered by him during the course of his employment with the respondent from approximately July 1995 to 11 November 1997, and in particular on or about 6 January 1997.

3 While the judge below accepted that the applicant sustained compensable injury before 12 November 1997 and that this injury was a serious injury within the meaning of s 135A of the Act, her Honour dismissed the application because the applicant's application under s 135A(2B) was made outside the time prescribed by s 135AC(b).

4 The applicant seeks leave to appeal from this decision. Leave is required because the order below was an order in an interlocutory application within the meaning of s 74(2D) of the County Court Act 1958.[1]

(a) The applicant was born on 17 August 1971. He completed his schooling to year 11. In approximately July 1995 (when he was almost 24 years of age) he commenced employment with the defendant as a printers' assistant.

(b) He described the onset of his low back troubles commencing with an incident at work on 6 January 1997. As he was opening a door, another

employee driving a forklift struck the door and threw the applicant backwards. The applicant landed heavily on his back and was immediately aware of pain in his back.

(c) Although the applicant did not take any time off work or seek medical treatment, from that time onwards he had constant low back pain when he was at work.

(d) The applicant's low back pain deteriorated following a further incident at work on 20 July 1998 when he ran to save a bundle of papers which was falling from one of the machines. In the course of this activity, the applicant struck his back on a chute handle, causing him further pain and he fell to the ground.

(e) Following this time, the applicant sought medical treatment. An X-ray was arranged, followed by a CT scan. The applicant was referred to an orthopaedic surgeon, whom he saw on 28 October 1998. Throughout this period, the applicant remained on light duties until he ceased work in December 1998. The applicant underwent a rehabilitation program at Cedar Court in 1999. Treatment included counselling in pain management, physiotherapy and advice as to exercises. The applicant derived little benefit from the treatment.

(f) The applicant was referred for an MRI scan of his lumbar spine, which was performed on 26 June 1999.

(g) The applicant came under the care of another orthopaedic surgeon in February 2000. Surgery was discussed and eventually, on 25 January 2001, the applicant was operated on by Mr Carey. The surgery performed was an L5-S1 bone fusion secured by a plate and two screws. Prior to undergoing the surgery the applicant had been led to believe that there was a reasonable prospect of the surgery relieving the pain in his spine and the referred symptoms into his legs so that he would be able to resume work. However, in the post-surgical period, the applicant's pain was, if anything, worse than it had been before surgery.

(h) Notwithstanding the applicant's ongoing symptoms, he was keen to return to work and pushed his doctors to allow this to occur. So it was that in January 2003 a return to work was arranged. The applicant undertook modified duties for four hours, two days a week in the despatch area and writing out tags for pallets. The applicant continued to perform this work until June 2003 before being unable to continue further.

6 After describing his employment difficulties in his affidavit sworn 3 March 2006, the applicant deposed:

I also believe that I have suffered a great deal of pain and suffering and loss of enjoyment of life by reason of the injury to my lower back resulting from work performed up to and including 12 November 1997. I have been in constant but variable back pain since that time, which ultimately brought me to surgery in January 2001. Such surgery did not produce the results which I had been led to believe would flow from it and my back condition has continued to remain painful subsequent to that time.

7 The applicant's application under s 135A(2B) was made on 3 March 2006. A question in this proceeding is when did the applicant's incapacity become known within the meaning of s 135AC(b).

8 The applicant's application will be barred by the operation of s 135AC(b) if he had knowledge of the serious injury incapacity, arising from his pre-12 November 1997 injury, more than three years before 3 March 2006. The fact that an applicant/ worker does not subjectively appreciate that the injury is serious until after the relevant date does not matter. It is sufficient to bar the claim if the worker knew of facts that viewed objectively constituted the serious injury incapacity.[2]

9 In the present case her Honour concluded that she was satisfied on the balance of probabilities that by the end of 2002 and at the very latest by January 2003, the applicant was aware of the serious injury consequences of his injury. January 2003 being more than three years before the date upon which the s 135A(2B) application was made, her Honour held that the application for leave was barred by s 135AC.

10 The applicant makes two complaints concerning her Honour's judgment:

(a) first, it is contended that her Honour erred in the construction of s 135AC(b) by not taking into account the fact that the applicant was not aware that he had a cause of action arising from the injuries he sustained on 6 January 1997 until he consulted a solicitor on 7 February 2006; and

(b) secondly, it is contended that her Honour erred in the application of s 135AC(b) upon the evidence before the court.

11 The first ground of complaint can be disposed of immediately. Neither s 135A nor s 135AC require a worker to have knowledge that they had a cause of action arising from the injuries the subject of the application before the court. Had Parliament wished to make such knowledge relevant, then it could have so provided.[3] Further, as successive decisions of this Court have established, the fact that a worker does not know that his injuries constitute a serious injury is not relevant for the purposes of s 135AC. What is relevant is knowledge of facts which, when viewed objectively, constitute serious injury incapacity. By the same reasoning, a lack of awareness that a worker had a cause of action arising from the injuries the subject of an application under s 135A has no bearing when considering whether the application under s 135A(2B) was brought within time or not.

12 It follows that I would reject the applicant's first complaint.

13 In order to succeed on his second ground, the applicant must establish that the decision below was wrong or attended with doubt. This may be established more easily where, as here, the effect of the order has the practical operation of finally determining the rights of the parties.

14 Having reviewed the evidence, I, too, have come to the conclusion that by the end of 2002, and at the very latest by January 2003, the applicant was aware of the serious injury consequences of his injury. In cross-examination, the applicant was asked and answered the following questions:

Given that you'd been through that program [Cedar Court] and it was unsuccessful and you were on all that medication and treatment [a reference to Panadeine Forte, temazepam, Aurorix, Serzone, Melleril, laser acupuncture, Voltaren and Naproxen], did you accept at that point in time in 1999 that you had a very bad back?---Yes.

Did you realise that at age only 28 you were going to have a bad back for the rest of your life?---Yes.

...

Mr Carey began treating you in February 2000, is that correct?---Yes.

At that point you were suffering from severe pain in the back and intermittent discomfort in the left leg?---Yes.

...

You say in your affidavit that after your surgery you continued to suffer from ongoing pain in your lower back and sciatic pains which were if anything more severe than had been the case before the surgery?---Yes.

Was that your view that the surgery - your lower back was actually worse after the surgery than before it?---Yes.

Did that situation continue from 2001 onwards that your back was even worse than it was before your surgery?---Yes.

It never got back to a point where it was better than it was before surgery?---No.

...

You saw an insurance doctor, Mr Hooper, who took a history that as at 18 November 2002 any movement caused you back pain. Was that the case, that any movement hurt you?---Yes.

You could not bend, lift, stand or stay in one place for any length of time?---Yes.

So by 2003 you had severe back pain?---Yes.

After six years you understood that was never going to go away, is that correct?---That's correct.

Clearly the applicant had knowledge of the pain and suffering consequences of his injury which, when viewed objectively, constituted serious injury incapacity, by no later than January 2003. Her Honour's decision has not been shown to be wrong or attended with doubt.

15 In the circumstances, the application for leave to appeal must be dismissed.

[1] See Paget v JLT Workers Compensation Services Pty Ltd [2005] VSCA 144; (2005) 12 VR 692 at 694 at [8].

[2] See AEP Industries Aust Pty Ltd v Mahmoud [2007] VSCA 203; (2007) 17 VR 144 at [28] per Redlich JA.

[3] See, eg, s 27L(1)(f) of the Limitation of Actions Act 1958.