Ace Ceramics Pty Ltd v Roberts

[1998] QCA 87

IN THE COURT OF APPEAL	[1998] QCA 087
SUPREME COURT OF QUEENSLAND

Appeal No. 6737 of 1997

Brisbane

[Ace Ceramics P/L v Roberts]

BETWEEN:

ACE CERAMICS PTY LTD

(ACN 001 247 632)

(Defendant) Appellant

AND:

SCOTT ALEXANDER ROBERTS

(Plaintiff) Respondent

Fitzgerald P
Pincus JA

Derrington J

Judgment delivered 6 May 1998.

Separate reasons for judgment of each member of the Court; Fitzgerald P and Derrington J concurring as to the orders made; Pincus JA dissenting.

APPEAL DISMISSED WITH COSTS TO BE TAXED

CATCHWORDS:	LIABILITY - Employer liability - Causation - Whether employer liable for conduct which is a material but not the sole cause of injury to the plaintiff, who had a pre-existent susceptibility to the injury sustained - Whether reasonably open to trial judge to conclude injury resulted from provision of an unsafe system of work.
Counsel:	Mr P. Keane QC for the appellant Mr M. Grant-Taylor for the respondent
Solicitors:	McInnes Wilson Solicitors for the appellant Poteri Woods Solicitors as town agents for O’Brien Solicitors for the

respondent

Hearing Date:  28April1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6737 of 1997

Brisbane

Before Fitzgerald P.
Pincus J.A.
Derrington J.

[Ace Ceramics P/L v. Roberts]

BETWEEN:

ACE CERAMICS PTY LTD

(A.C.N. 001 247 632)

(Defendant) Appellant

AND:

SCOTT ALEXANDER ROBERTS

(Plaintiff) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 6 May 1998

The circumstances giving rise to this appeal are set out in the reasons for judgment of Derrington J. I

am in general agreement with his Honour’s reasons.

The appellant was able to point to flaws in the reasoning of the Trial Judge. For example, his Honour’s

statement that “because there was nothing about the labouring work that involved a faulty or unsafe

system, it was unlikely to cause an injury even though it was heavier work than tiling” was illogical.

Especially given that the respondent had told his orthopaedic surgeon that he had been carrying out the

heavier labouring work, not the tiling, when he first experienced pain, criticism was also legitimately
made of his Honour’s following statement:

“It may well be that the heavier labouring work brought the back problem to light because of its heavier nature, but that does not mean at all that it caused the problem.”

The Trial Judge appears to have been concerned to exclude the labouring work as a cause of the

respondent’s injury to his spine, which had long standing disc degeneration. However, that was

unnecessary. It was sufficient for the respondent’s purpose, as was conceded in this Court for the

appellant, if the tiling work which the respondent carried out for the appellant was a material cause of

his injury, even if the heavier labouring work also contributed to the injury.

No instruction was given to the respondent concerning the method which he should use when lifting the

tiles, and he used a method which the Trial Judge found “was faulty and unsafe in that it significantly

increased the risk of any injury to his back”. It is not clear to me that that finding was even challenged,

but, if it was, it was amply supported by the evidence of the respondent, who gave evidence that he

experienced his worst symptoms while “lifting the tiles”; his superior, a supervisor employed by the

appellant with 40 years’ experience in tiling; and an engineer. The Trial Judge identified a preferable

method of lifting the tiles, and there has been no challenge to his finding that the appellant was negligent

in failing to instruct or advise the respondent to use the other method which would have avoided, or

minimised, the risk of his injury.

Once it is accepted, as in my opinion it must be in this Court, that the method of lifting tiles used by the

respondent “significantly increased the risk of any injury to his back”, it was open to the Trial Judge to

conclude, as he did, that the use of that method led to his suffering injury. Indeed, a conclusion that the

labouring work, and not the tiling, was the sole cause of the respondent’s injury would have been as artificial and unrealistic as the finding by the Trial Judge of which the appellant complains, namely, that

the tiling, not the labouring, was the sole cause of the injury.
The obvious inference from the evidence, taken as a whole, was that both activities were material causes

of the injury. That being so, the appellant has failed in its attempt to demonstrate any error by the Trial

Judge which warrants setting aside the judgment in favour of the respondent.

I agree with Derrington J. that the appeal should be dismissed with costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6737 of 1997.

Brisbane

Before Fitzgerald P.

Pincus J.A.

Derrington J.

[Ace Ceramics P/L v. Roberts]

BETWEEN:

ACE CERAMICS PTY LTD
ACN 001 247 632

(Defendant) Appellant

AND:

SCOTT ALEXANDER ROBERTS

(Plaintiff) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 6 May 1998

This is an appeal in which the question is whether the judge was right in finding that the plaintiff’s

injury had the cause he ascribed to it; the argument is that the judge’s reasons for finding in favour of

the plaintiff on the question of causation were wrong and that the evidence in support of the conclusion

his Honour reached was too weak to support it. The case is an unusual one in that there is no medical

evidence in support of the view of causation on which the plaintiff’s case depended.

It is necessary to discuss the evidence in a little detail, but it may be convenient to set out here

the propositions which I favour:

1.          The plaintiff had to prove that the work he stipulated - raising tiles for re-laying - was a cause

or the cause of his injury; proof was necessary, guesswork not enough.

2.          The evidence led suggested that a more likely cause of the injury was not the tiling work, but

some heavier, labouring work which the plaintiff says he did.

3.          The reasons the judge gave for finding for the plaintiff on this point were wrong.

4.          Because those reasons were wrong, the appellant is entitled at least to a new trial, unless the

evidence in favour of the plaintiff was such as necessarily to require the conclusion at which the judge

(by wrong reasoning) arrived.

5.          The evidence was not of that character.

It is convenient to begin with the passage in which the judge reaches the conclusion that the

causal relationship was established. After referring to evidence favouring the defendant (discussed

below) his Honour went on to give two reasons for finding for the plaintiff. The first was that the

competing cause, the labouring work I have referred to, did not involve a faulty or unsafe system.

Generalising, if there are competing causes, one of which involves the defendant in liability and the other

does not, the court should it appears favour the former. That cannot stand as a general proposition;

Mr Grant-Taylor suggested that a reading or rather reconstruction of the judge’s reasoning which might

stand scrutiny was possible, but I prefer to assume that his Honour meant what he said.

The second reason was at least equally fallacious. His Honour said:

"It may well be that the heavier labouring work brought the back problem to light because of its heavier nature but that does not mean at all that it caused that problem." (emphasis added)

But this was simply to misunderstand the plaintiff’s case, which was that he had a condition called spinal stenosis in the lumbar spine, one of long standing, and that what happened was "a bringing to light of a

pre-existing condition". So that to say that the labouring work might have brought the condition to light,

as the judge did, could not assist the plaintiff to obtain an answer in his favour to the question which the

judge had to answer, which was not whether the tiling work caused the problem but whether it "brought

it to light". That apparently meant making symptomatic a condition which was previously asymptomatic.

Since both the reasons the judge gave for finding in favour of the plaintiff on the question of

causation are wrong, those reasons become irrelevant, except in one important respect; the judge

regarded the plaintiff as an honest witness and it is not suggested that we should differ from that view.

But the plaintiff’s evidence tended to favour the defendant’s argument rather than his own case.

Except for one answer to a leading, and misleading, question in re-examination he said little to suggest

that he himself associated the onset of the trouble with the performance of the tiling work. The

importance of the plaintiff’s evidence is that the only witness with relevant expertise, Dr Curtis, gave no

opinion evidence in support of the plaintiff’s case, which was that re-laying the tiles was causative of the

injury. The doctor simply was not asked about that. Questions were asked of other, lay, witnesses

about the likely effect of tiling work on the plaintiff’s back but that could not show, and those witnesses

did not say, that the tiling work caused the injury.

The plaintiff went to work for the defendant on Tuesday 12 April 1994 and worked on that day as well as the following Wednesday, Thursday and Friday, doing the tiling work which was the ground of the finding of liability on all four days. He did not go to work on the Saturday but went to see his

doctor as his back was very sore; the pain he was then suffering started on the Thursday afternoon.

In evidence-in-chief he was asked nothing about work other than tiling which might have caused back

injury at any time during those four days, but he was forthcoming on this subject in cross-examination.

He explained that he was laying the tiles on what was call "mud", mixed in an orbital mixer and then

brought over by wheelbarrow. A labourer was supposed to do this work, but as the week went on the

plaintiff had to do the work himself. It was heavy work; he had to:

". . . shovel the sand in, lift bags of cement, pour that in, . . . mix the mud, pour it in the

wheel barrow and lift the wheel barrow over".

He began to do that on the third day, which was the Thursday; I have explained that that was the day

on which his back pain began.

In answer to a question about what was concerning him, the plaintiff said:

"No, it wasn’t concerning me that much, no. The extra work was.

And what do you call the extra work?-- Mixing the mud, when there was a labourer supposed to be doing it, and bringing me tiles, when he was supposed to be doing that."

He agreed that he had difficulty with the work just mentioned as well as with "the lifting of the tiles",

which meant lifting them for the purpose of re-laying, and the transportation of the tiles to his area and

the re-laying of the tiles. He was asked whether the labouring work was heavier than the tiling work

or whether they were both about the same and he answered, "No, it’s heavier work". He again

confirmed that he did not start getting the pain until the Thursday and that he went through the first two

days without any pain. He was asked whether he started to get the pain when he had to do the "extra

labouring work" and answered, "Probably is the case, yes". The next question and answer were as

follows:

"You weren’t getting any pain at all from doing the re-laying. It was just from having to do those extra labouring duties that you think brought on the pain?-- That’s right."

He went on to confirm this, in effect, by saying that the laying and re-laying of the tiles was done

"comfortably to what I could, seeing I’d never done it before", that he did not go home on the Tuesday

or Wednesday nights with back pain and it was only on the Thursday when he started to do the extra

labouring duties that the problem arose.

The answer in re-examination, being the only one which could support the judge’s conclusion,

requires some discussion. In the course of his evidence the plaintiff discussed the re-laying process and

the judge asked him a question:

"His Honour: Which was harder, that you noticed - did you notice it - lifting the tile from the mud - well, prising it through from the mud or actually carrying it with the mud on it?-- Prying it off the mud."

The comparison the judge invited was between two aspects of the re-laying work. In re-examination,

presumably because he did not accurately recall the judge’s question, counsel asked a leading question

which implied that the answer given to the judge was favourable to the plaintiff’s case.

"When did you experience your worst symptoms when you were working on the Thursday and the Friday? Which aspect of your work, the lifting of the tiles I think, you said when his Honour asked you?-- Yes, lifting the tiles."

The plaintiff’s counsel told him, in effect, that he experienced his worst symptoms when he was lifting

the tiles and that he had told the judge that. In truth he had never said that he experienced his worst -

or indeed any - symptoms when lifting the tiles. Further, the judge’s question was directed to a

comparison of two aspects of the tile-laying work and had nothing to do with the comparison between

the effect of the labouring work and that of the tile-laying work.

It therefore appears to me that the answer given to the question in re-examination should be

disregarded. If that approach is accepted then there was simply no evidence from which one could

conclude that, subjectively, the plaintiff associated the onset of his pain with the tile-laying work. If one

rejects that approach, still the plaintiff’s case is one in which the overwhelming weight of the evidence

was against the proposition that it was the tile-laying work rather than the labouring work which initiated

his symptoms. It is impossible to hold that, merely because the tile-laying caused some strain on the

plaintiff’s back, it was necessarily a cause of the injury, either alone or in combination with any other

cause.

To revert to the five propositions set out above, the fact that the judge’s reasoning was wrong

requires the Court to reconsider the evidence, in order to determine whether despite the defective

reasoning the factual conclusion was obviously right, so that the defendant is not entitled to a new trial.

In my view it is impossible to say the conclusion was obviously right. To the contrary, the evidence the

plaintiff adduced in support of the proposition he had to establish was so thin that there should be no

new trial, but the appeal should simply be allowed.

I would allow the appeal with costs and dismiss the plaintiff’s action with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6737 of 1997

Brisbane

Before Fitzgerald P
Pincus JA
Derrington J

[Ace Ceramics P/L v Roberts]

BETWEEN:

ACE CERAMICS PTY LTD

(ACN 001 247 632)

(Defendant) Appellant

AND:

SCOTT ALEXANDER ROBERTS

(Plaintiff) Respondent

REASONS FOR JUDGMENT - DERRINGTON J

Judgment delivered 6 May 1998

This is an appeal by the defendant in the action who was the employer of the plaintiff

respondent. It is addressed only to the finding of liability.

The respondent's claim arose out of an injury to his back which accelerated the symptomatology

from his already degenerative spine. It is clear that the lighting up of symptoms was not the injury but

its consequences. The injury was the advance in the deterioration of those parts of the spine that

produced them. It is uncontroverted that he suffered it at his work. The only issue is whether it was

caused by certain heavy work, as to which there was no allegation of negligence, rather than by other work involving a faulty system which he was permitted to follow. The finding that the appellant was

negligent in respect of the latter is not contested, and consequently the only issue is one of causation.

The work which was not the basis of the claim consisted in lifting heavy loads into and out of

a wheelbarrow and transporting them in it. The respondent was not accustomed to such heavy work,

but there is no complaint of negligence in respect of that. It should be inferred from the medical

evidence that in the absence of any unusual trauma the persistent heavy stress had a wearing effect upon

the degenerative parts of the spine that accelerated the wearing effect of ordinary use.

The negligent system operated in the process of laying a floor of concrete tiles, each weighing

in excess of 8 kilogrammes, in a bed of wet mortar. It included the re-lifting and re-laying of some tiles

in order to achieve a flat and regular surface; and this re-lifting of a tile required the respondent to lean

over and lift it by one edge. The adherence of wet mortar and the effect of suction would have

increased the resistance of the tile beyond its normal weight. While this work was not as heavy as that

referred to above, it is plain that because of the mechanics involved, this imposed undue stress on the

respondent's spine. This, incidentally, explains why no issue is taken with the finding that the appellant

was negligent in that respect.

The appellant emphasises two pieces of evidence. The first is the respondent's own account

that the onset of serious pain occurred during his performance of the work which was not said to involve

any negligence. The second is the evidence of the respondent's orthopaedic surgeon as to the cause

of the injury. His report of the respondent's history was as follows:

"Mr Roberts states that on the 14th April 1994, he was lifting a number of concrete slabs weighing approximately 30 kg each from a wheelbarrow onto the ground and then positioned them into place, which he had been performing continuously for several days without assistance.

He became aware of the development of low back pain during the course of the day preventing him from straightening up comfortably."

He described the injuries sustained simply as "Injury to lumbar spine," and in his summary and

opinion, he then said:

"Mr Roberts is a 32 year old tiler who became aware of the development of low back

pain after excessive lifting of heavy objects at work some twenty months ago."

He did not directly and explicitly attribute the injury to the work so described, but this has

apparently been commonly inferred. It was not discussed in his oral evidence.

It is suggested by the appellant that this description of the work that caused the injury related

only to that part as to which the appellant was not negligent. The respondent argues that it referred to

both parts since the negligent system also involved lifting; and significantly the report also referred to

positioning the slabs into place. The importance of this is, as it has been observed, that it does not

attribute the injury to a single isolated incident but rather to the whole process over a period of time, and

the inference is that the continuing excessive stress caused the harm. It does not require the evidence

of the expert for the court to conclude that the clearly undesirable stress from the negligent system of

work was, along with the stress of the heavy work, a material contributor to a result of this kind.

The learned trial judge adverted to the inconsistency of the orthopaedic report in relation to the

weight of the concrete slabs and came to the conclusion that its description of the work arose from an

error in the orthopaedic's understanding of the plaintiff's account to him. This is unsatisfactory in that

it does not address the real point, that is, that the injury was attributed to a combination of heavy

stresses, including the work that involved no negligence, and there is no indication of confusion in that

respect.

After acknowledging the defendant's point as to the plaintiff's evidence of when the onset of pain

began, the learned trial judge said as follows:

"That answer and those following tend to support the defendant's argument. However, there was no suggestion in the evidence of any incident causing or being likely to cause injury to the plaintiff in the course of that labouring work. There was nothing about the particular work that involved a faulty or unsafe system. It was merely heavier work than is tiling. On the other hand there is clear evidence of the adoption of a system of work in respect of the relaying of tiles which was likely to cause back injury and which I find did have that result. It may well be that the heavier labouring work brought the back problem to light because of its heavier nature but that does not mean at all that it caused that problem."

He went on to find that because of the stress on the respondent's back from the negligent

system of work, it caused the harm.

The appellant's major complaint is that the work that was being performed at the time of the

onset of the pain and the specialist's opinion that work of that kind precipitated the harm meant that his

Honour was unjustified in discarding that possible answer to the causation question. It argues that he

seems to have acted upon the mistaken view that the presence of a negligent system of work necessarily

meant that it was the cause of the injury and that this excluded the possibility that the other heavy work

was its cause.

That is not quite the point of his error. He excluded the non-negligent system because there was

no evidence of an incident that might have caused the injury, disregarding the stress of the work to which

the respondent was not accustomed; and he attributed the injury to the stress from the unsafe system

of work although there was no incident associated with that. This was inconsistent.

It follows, the appellant argues, that because the respondent's injuries could be so manifestly explained by reference to the cause that involved it in no liability, and because there is no other expert evidence attributing the stress from the negligent system of work as a possible cause, it should be

discarded; or at least the respondent had failed to prove his case.

With respect, this argument suffers from its own logic, since it is not justified in claiming that the

cause of the injury which it advances excludes the other. This depends upon the unfounded assumption

that both could not have materially contributed to the result. That both could have done so is palpably

plain. That both did so is very likely. That the stress on the respondent's "significantly vulnerable" back

caused by the unsafe system of work did not materially contribute to his injury is highly unlikely. Such

an argument as the appellant promotes unjustifiably assumes a sudden and single trauma rather than

progressive harm which, the medical evidence clearly implies, was the nature of the cause of the injury.

Implicit in the appellant's reasoning is the further unjustified assumption that the injury occurred

only with the onset of the pain. Having regard to the state of the respondent's spine, it is artificial in

these circumstances to select a moment in the course of prolonged heavy work involving both activities

as being exclusively associated with the injury, particularly since there was no unusual contemporaneous

feature of that work that would isolate it as a specific cause. For example, if the respondent had been

lifting an extremely heavy weight at the time, or if he had fallen and twisted his back severely, there may

be some reason to discriminate in that fashion, though even then it may have been debatable whether

it was exclusive of other causes. But when the injury appears to be the culmination of repeatedly heavy

stress, as the specialist would seem to describe the process in this case, then ordinary reason would

attribute that result to both major causes of the stress. It is not reasonable to suggest that stress of the

magnitude produced by the negligent system of work would not have had a material part in the

precipitation of the injury in the circumstances of this case.

It is acknowledged by the appellant that it is sufficient for its liability that its negligent conduct

was a material cause of the harm, even if there was another material cause for which it was not

responsible: Bonnington Castings Ltd v Wardlaw [1956] AC 613.

It may be that the medical evidence on this distribution of causes should have led to a reduction

of the period of acceleration of the respondent's condition for which he was compensated. If the

ordinary hard labouring work that involved no liability would also have precipitated such an injury, then,

absent any negligence on the appellant's part it too would probably have accelerated the degenerative

state of the respondent's spine. The medical evidence of acceleration did not allow for this.

Consequently, the acceleration of the respondent's disability by his compensable injury should have been

less than the figure adopted. That would have resulted in a finding of a reduced loss. However, there

is no appeal as to damages.

In the result, the appeal should be dismissed with costs.