Blondel v Wesfarmers CSBP Ltd

[2004] WASCA 117

BLONDEL -v- WESFARMERS CSBP LTD [2004] WASCA 117

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 117
Court:	THE FULL COURT (WA)
Case No:	FUL:13/2003	Heard:	15 APRIL 2004
Coram:	STEYTLER J MILLER J EM HEENAN J	Delivered:	9/06/04
No of pages:	24	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	EMMANUEL BERNARD BLONDEL WESFARMERS CSBP LTD
Catchwords:	Damages Assessment of damages Injuries sustained in the course of employment Trial Judge did not accept appellant's evidence as regards nature and consequences of injuries Whether trial Judge wrongly concluded appellant suffered only a minor injury Whether trial Judge wrongly concluded appellant's depression was unrelated to the work incidents Grounds of appeal not made out No error in award of damages Turns on own facts Negligence Breach of duty Whether employer liable for injury suffered by appellant Appellant was the author of his own misfortune Turns  on own facts
Legislation:	Nil
Case References:	Gondoline Pty Ltd v Hansford [2002] WASCA 214 Reynolds v Katoomba RSL All Services Club Limited (2001) 53 NSWLR 43 Tomlinson v Congleton Borough Council [2004] 1 AC 46 Uzabeaga v Town of Cottesloe [2004] WASCA 57 Waverley Municipal Council v Swain (2003) A Tort Rep 81-694 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BLONDEL -v- WESFARMERS CSBP LTD [2004] WASCA 117 CORAM : STEYTLER J

MILLER J
EM HEENAN J

HEARD : 15 APRIL 2004 DELIVERED : 9 JUNE 2004 FILE NO/S : FUL 13 of 2003 BETWEEN : EMMANUEL BERNARD BLONDEL

Appellant

AND

WESFARMERS CSBP LTD
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : DEANE DCJ

Citation Number : [2003] WADC 5

File Number : CIV 3216 of 1999


(Page 2)

Catchwords:

Damages - Assessment of damages - Injuries sustained in the course of employment - Trial Judge did not accept appellant's evidence as regards nature and consequences of injuries - Whether trial Judge wrongly concluded appellant suffered only a minor injury - Whether trial Judge wrongly concluded appellant's depression was unrelated to the work incidents - Grounds of appeal not made out - No error in award of damages - Turns on own facts

Negligence - Breach of duty - Whether employer liable for injury suffered by appellant - Appellant was the author of his own misfortune - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr I L K Marshall
Respondent : Mr D R Clyne

Solicitors:

Appellant : S C Nigam & Co
Respondent : Julian Lentzner

Case(s) referred to in judgment(s):

Gondoline Pty Ltd v Hansford [2002] WASCA 214
Reynolds v Katoomba RSL All Services Club Limited (2001) 53 NSWLR 43
Tomlinson v Congleton Borough Council [2004] 1 AC 46
Uzabeaga v Town of Cottesloe [2004] WASCA 57
Waverley Municipal Council v Swain (2003) A Tort Rep 81-694

(Page 3)

Case(s) also cited:

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18


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1 STEYTLER J: On 3 August 1994 the appellant injured his neck, left shoulder and upper back while dismantling a compressor in the course of his employment with the respondent. He claims to have exacerbated those injuries on 15 December 1997, while assisting a co-worker to lift and load a desk weighing between 60 and 70 kilograms onto the tray of a utility. He issued proceedings, claiming damages from the respondent which, he contended, was legally responsible for his injuries. He alleged that it had, in each instance, breached his contract of employment, that it had been negligent and that it had breached provisions of the Occupational Health, Safety and Welfare Act 1984 (now the Occupational Safety and Health Act 1984). The trial Judge found that the respondent was liable to the appellant for the injuries sustained by him on 3 August 1994 but that it was not so in respect of those sustained by him on 15 December 1997. She assessed damages in an amount of $3500 in respect of the injuries for which the respondent was found to be liable. The appellant appeals against that assessment and also against the trial Judge's finding that the respondent was not liable for the injuries sustained by him on 15 December 1997.

Injuries sustained by the appellant prior to 3 August 1994

2 The appellant said, in the course of his evidence, that he generally enjoyed good health prior to 3 August 1994. However, he had, by then, injured himself on a number of occasions. While he could not recall this, the evidence at the trial established that he took three days off work for back strain after lifting some bricks on 23 August 1988. Six months later, on 24 February 1989, he suffered low back pain while riding his bicycle to work. His general practitioner, Dr John Lagan, certified him unfit for work for a period of two weeks, although he in fact returned to work on 2 March 1989. On 21 March 1990 he hurt his back at work in a lifting incident. Then, on 25 May 1990, he hit his head on a girder at work and was required to attend the emergency department of Rockingham Hospital, where he received two sutures to the wound sustained by him.

Events after 3 August 1994 and before 15 December 1997

3 The evidence disclosed that, after the incident on 3 August 1994, the appellant consulted a general practitioner, Dr Trevor Lord, who, at the respondent's request, attended the work site (where there was a small medical centre) each Tuesday and Thursday. Dr Lord saw the appellant on 4 August 1994. His notes record that the appellant complained of increasing pain in his left shoulder and neck. On examination, the appellant was found by Dr Lord to be tender over the muscles of the left anterior chest wall and the left posterior chest wall. His left shoulder had

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a full range of movement, as did his neck, although he had some pain at the end of the range in his neck. Dr Lord diagnosed a muscle strain to the anterior and posterior shoulder girdle muscles. Dr Lord told the appellant that he would refer him to a physiotherapist for treatment if his injuries had not settled by the following Monday. The appellant took no time off work. However, he was prescribed anti-inflammatory medication and was on very light duties for a week or so. He did not return to Dr Lord for further treatment.

4 There are two occupational health nurses who have worked at the respondent's medical centre during the period of the appellant's employment with the respondent. They are Ms Nicolette Castel, who worked there between July 1994 and September 1997, and Ms Bernadette Murphy, who worked there form July 1997 onwards. The two nurses kept a record of medications dispensed by them. That record reveals that on 9 August 1994 Ms Castel dispensed medication to the appellant for a work-related injury, but that no further medication was dispensed for the relief of neck, back or shoulder pain until 14 July 1997, when the appellant complained of a "wry" neck. While Ms Castel's memory was not infallible (she had, at first, incorrectly said that there was never an occasion when Dr Lord told her to give medication to the appellant as and when required), she said that it was unlikely that she might have given the plaintiff medication at times without entering it into the register, more particularly as her name was on the poisons permit. The kinds of medications which she was able to administer for pain relief were medications such as Panadol, Disprin and Panadeine, with only Dr Lord being able to prescribe stronger medications such as Panadeine Forte.

5 Ms Murphy gave similar evidence as to the purpose of the register and as to the kinds of medication which could be provided by the nurses. The trial Judge found both Ms Castel and Ms Murphy to be reliable and credible witnesses.

6 The appellant consulted his own general practitioner (Dr Lagan) after the incident on 3 August 1994, but this was in respect of other complaints. While he could not recall mentioning his neck pain and associated shoulder and back pain to Dr Lagan, he said that this was because he understood from Dr Lord that his injury was a simple one which would resolve itself. However, Dr Lagan's notes of 9 September 1994 reveal that the appellant had complained to him of pain on his right side and in the right side of his neck, for which he was given medication. Notwithstanding that the appellant said that, when he had a bad flare-up of pain, this affected the whole of his neck and both arms, Dr Lagan's notes

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made no reference to left-sided neck pain. Moreover, Dr Lagan's notes reveal no mention, by the appellant, of any neck pain after 9 September 1994 and until 1997, notwithstanding that Dr Lagan was consulted by the appellant with respect to other medical matters in the intervening period.

7 The appellant made no claim for workers' compensation in respect of the injuries sustained by him on 3 August 1994 because, he said, Dr Lord had told him that he had suffered only a "simple sprain". After his return to his regular work as a mechanical fitter he experienced flare-ups of pain from time to time. He said that he consequently inquired about the prospect of obtaining a lighter job and, in October 1995, he was employed by the respondent as a maintenance technician, a job which involved him in collecting data and "inputting" it to management and maintenance systems.

8 In early January 1995, the appellant consulted Dr Lord in respect of neck pain. He said that he had awoken with a stiff neck on the previous Saturday morning. Dr Lord's notes reveal that the appellant told him that he believed that the problem was a recurrence of an old injury when he had hit his head on a girder (presumably being the incident which occurred on 25 May 1990, albeit the appellant told Dr Lord that the injury had happened in 1991). While the appellant said that he had given this information because he was asked by Dr Lord if he had had an accident in the course of which he had hit his head, he was unable to explain why he had not mentioned the incident which had occurred on 3 August 1994, if he considered that there was any connection with that incident.

9 On 7 January 1997 the appellant consulted Dr Lagan with respect to neck pain suffered by him. Dr Lagan prescribed medication in the form of Voltaren tablets. He also ordered x-rays. The appellant understood that these showed nothing abnormal, a fact confirmed by Dr Lagan in the course of his evidence at the trial.

10 In early April 1997 the appellant was due to travel to Queensland for a family wedding. He consulted Dr Lord on 8 April 1997 and told him of a flare-up of pain in his lower back and neck and shoulder. He said that this was of some concern to him given that he was about to travel to Queensland.

11 When the appellant arrived in Queensland, he experienced pain such that he was required to go to Tweed Heads Hospital. He said that his left arm was by then severely affected with pain and cramp. The appellant appears to have told the Tweed Heads Hospital that he had a long history

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of "wry neck" for the past 10 years. So much appears from that hospital's notes, which also reveal that the appellant had had previous similar episodes, apparently as a result of a work accident approximately 10 years previously. While the appellant denied, in the course of his evidence, that he told hospital staff that he had had the problem for 10 years, he could not explain how the note came to be made. The appellant also said that the reference to the wry neck was made by him because that was what he had been told by Dr Lord. However, this contradicted Dr Lord's evidence in that regard.

12 On his return to Perth the appellant again consulted Dr Lord. He said that Dr Lord told him that his injuries would heal and that he had no reason to be concerned about them. While Dr Lord's notes reveal that the appellant's neck pain flared up "one night", the appellant said that he told Dr Lord that he had been in pain for the whole of his holiday. It seems that Dr Lord referred him to Dr John Nash, a radiologist who arranged for scans to be taken. Those scans revealed that, at the C6-7 level, there was a moderately large left postero-lateral disc protrusion and that this could well be compressing the left C7 or C8 nerve roots.

13 On 13 May 1997 Dr Lord noted that the appellant felt strongly that his cervical disc lesion related to the earlier injury when he had hit his head on a girder and also noted that the appellant maintained that his neck had been bad for years with repeated episodes of wry neck. His notes reveal that he explained to the appellant that, although the 1991 injury (presumably a mistaken reference to the injury in May 1990) could have left a residual problem in the appellant's neck, the current lesion looked to be much more recent, particularly when taking into account the pattern of the appellant's symptoms. Dr Lord's notes also reveal that he explained to the appellant that it was unlikely that there was any direct relationship between the girder incident and the appellant's current neck problems.

14 This last point is significant because the appellant denied, in the course of his evidence, that he told Dr Lord that he believed that his cervical disc lesion related to the girder incident and said that it was Dr Lord who expressed that opinion to him. As was pointed out by the trial Judge (par 42 of her Honour's reasons), that aspect of the appellant's evidence makes little sense when regard is had to the fact that Dr Lord's notes reveal that he explained to the appellant that he (Dr Lord) thought it was unlikely there was any nexus between the two.

15 The appellant (who had returned to his duties as a maintenance technician) did not again consult Dr Lord regarding his neck, albeit he

(Page 8)

attended Dr Lord's surgery in September for two unrelated matters. He also consulted Dr Lagan in September 1997 with respect to a cold, but made no mention of neck pain at that time.

Events on and after 15 December 1997

16 On the morning of 15 December 1997, one of the appellant's work colleagues asked the appellant if he could assist in moving a melamine desk onto the back of a utility. The appellant agreed to do so because, he said, it was his understanding that the respondent expected co-workers to assist each other in tasks such as the moving of furniture. The two men then lifted the desk which, as I have said, weighed between 60 and 70 kilograms. They moved it sideways through a door and then carried it about 20 metres to the utility, where they placed it on the tray of the utility. After doing so, the appellant experienced severe pain between his shoulder-blades, in his shoulder and up his neck. He reported this to a supervisor and also sought attention from a nurse at the site medical centre.

17 The appellant said in evidence that, after this accident, he saw a number of medical practitioners and physiotherapists. However, he did not consult his general practitioner, Dr Lagan, about this incident until 12 February 1998. Indeed, earlier, on 19 December 1997, he had been to Dr Lagan's rooms and asked for his medical records to be given to him. The trial Judge found (par 43) that, while his evidence was somewhat unclear as to what precisely he intended to do with the materials, he seemed to want the notes for his own information. The appellant explained the fact that he saw Dr Lagan about the pain suffered by him only in February 1998 by saying that his pain had, by then, grown considerably worse. However, he also said that his neck pain had, by December 1997, reached the stage at which he was unable to cope with work, resulting in him taking leave between 22 December 1997 and 9 January 1998.

18 The appellant's visit to Dr Lagan on 12 February 1998 followed his being informed, on the preceding day, that his application for another position within the respondent had been unsuccessful. That visit was the first occasion upon which Dr Lagan recorded that the incident of 3 August 1994 was associated or connected with the appellant's neck pain.

19 Thereafter, the appellant was referred to a number of specialists. These included Mr Richard Vaughan and Mr Wayne Thomas, both neurosurgeons, Dr Ross Goodheart, a consultant neurologist, Professor Andrew Harper, an occupational physician, Mr Richard Beaver,

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an orthopaedic surgeon, Professor Peter Hollingworth, an associate professor of occupational medicine, Dr William Douglas, a clinical psychologist, Dr John Booth, a consultant in psychological medicine and the appellant's treating psychiatrist, and Dr Peter McCarthy, a consultant psychiatrist.

20 The appellant was also secretly videotaped on three occasions, being 31 May 1998, 6 September 2000 and 10 May 2001. The first of those videotapes shows the appellant driving a motor vehicle and moving relatively freely. He appeared to be able to tilt his head back, to bend and to stretch out without difficulty. The trial Judge's observation from the videotape (with which no issue is taken) was that the appellant appeared to exhibit no discernable restriction in his arms, neck or upper back or leg movements (par 51). The appellant also appeared to move freely in the second videotape. His movements there do not demonstrate any particular stiffness or restriction of movement. The same is true of the third videotape.

21 The trial Judge said, of the videotape evidence, that (par 51):

"The contrast between the plaintiff's presentation on all the video film tendered into evidence and his sworn testimony as well as the history he gave to a number of medical practitioners about his condition and alleged ongoing pain state and disability was so great as to reflect negatively on the plaintiff's reliability and credibility as a witness."

22 As to the medical evidence, counsel for the appellant relied largely on that of Mr Vaughan. That is because, having taken a history from the appellant with respect to his symptoms, Mr Vaughan expressed the opinion that the appellant's present problems commenced in 1994, were aggravated during the trip to Queensland in 1997 and then worsened after the incident on 15 December 1997. However, the trial Judge's understanding of Mr Vaughan's evidence (which was not challenged in this respect) was that Mr Vaughan felt at something of a disadvantage in that he had not seen and examined the appellant at the time of the incident on 3 August 1994 (par 68 of her Honour's reasons). Also, Mr Vaughan agreed, after seeing Dr Lord's notes, that the problem with the appellant's disc at the C6-7 level arose subsequent to the incident in August 1994. He accepted that a bang on the head (as happened in the girder incident) could cause trauma to the cervical spine which, over time, suffered degenerative change, becoming symptomatic as a consequence of an

(Page 10)

event as minor as a sneeze. He believed that, during 1997, an incident (he could not say which incident) caused the disc to break down.

23 As to Mr Thomas, he was, as her Honour said (par 66), "very reliant on the history recited to him" by the appellant and expressed the opinion that the person who saw the appellant immediately after the incident on 3 August 1994 was in a better position to make a diagnosis as to what had occurred. He said that he could not be clear as regards the original cause of the appellant's complaints but believed that the development of the problem since about May 1997 suggested that the disc protrusion had its onset at about that time rather than in August 1994, more particularly having regard to the fact that the first occasion upon which symptoms in the left arm and hand were noted was during May 1997. He said that the incident in August 1994, or the earlier girder incident, could have had an impact on the appellant at the C4-5 level.

24 Dr Goodheart, in his evidence, accepted that the history given to him by the appellant was consistent with the onset of symptoms on 3 August 1994. He considered that there was evidence of irritation of the left C7 nerve root and that symptoms of that kind could be caused by a disc movement between the C6 and C7 vertebrae. He understood, from the history given to him by the appellant, that the latter had experienced left arm symptoms from about 3 August 1994 and this, he said, was consistent with a C6-7 radiculopathy. He conceded that he relied very heavily on the history given to him by the appellant but said that this was corroborated, to some extent, by other medical reports. However, he acknowledged that there was no doubt that a doctor who saw the appellant regularly over a period of time was in a better position to diagnose the appellant's condition at that time (he first saw the appellant on 10 March 1998 for the purpose of evaluating his neck and spine symptoms).

25 The appellant was seen by Professor Harper on a number of occasions, beginning in April 1999. Professor Harper initially hypothesised that the appellant's symptoms were caused by the incident on 3 August 1994. However, the trial Judge described the effect of his evidence at the trial (in a manner which has not been challenged) as follows (par 89):

"Professor Harper admitted that if the plaintiff had been able to continue carrying out his work as a fitter between August 1994 and October 1995 that would impinge upon his opinion as to causation and if the neck symptoms had not been consistent and persistent from August 1994 that would also affect his opinion

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in that regard, although it would not eliminate the hypothesis he had put forward as to causation. He agreed that a bang to one's head against a girder, for example, could cause a neck injury either at C4-5 or C6-7. He agreed that if a person in the plaintiff's position could at times take trips to the southwest of the State and engage in some form of social activity such as going out to restaurants and such like, then his disability would be less than as defined by Professor Harper at the current time. Given the information available to him in court he said that the incident of the plaintiff hitting his head against a girder in 1990 could have been the initial insult which weakened the disc and subsequently resulted in it being susceptible and finally herniating. It was possible that if he injured his disc in 1990 the events of 3 August 1994 could have exacerbated or worsened a pre-existing problem. His opinion was that on the weight of all the evidence, as he described it, the plaintiff probably did injure his neck in 1990 and the event of 3 August 1994 exacerbated or worsened the state of his neck."

26 Mr Beaver prepared two reports in respect of the appellant in May 2000 and March 2002 respectively. He diagnosed a prolapsed intervertebral disc at the C6-7 level, with possible associated C6 radiculopathy. He considered that the injury at the C4-5 level was unlikely to have been the result of minor trauma and was more consistent with a major blow to the head. He expressed the opinion that the lesion at C6-7 might have been caused by the incident on 3 August 1994 which, he said, could cause radiculopathy in the left arm which might spontaneously resolve. However, in the course of his evidence while under cross-examination, Mr Beaver said that he considered that, on the balance of probabilities, a major blow to the neck or head was a more probable cause of a disc injury than a pulling and tugging motion, although, he said, both were capable of causing such an injury. He said that there was no proof of when the injury to the C6-7 disc occurred and that he could not say that it was more likely that the injury occurred on 3 August 1994.

27 The appellant was seen by Professor Hollingworth on a number of occasions. Professor Hollingworth (who prepared reports dated 18 February 2000, 3 March 2000 and 21 March 2002) found it difficult to make a diagnosis and commented that the appellant had given different histories to different people as regards the onset of his neck pain. In his last report he concluded that the disc prolapse at C6-7 could have been caused when the appellant banged his head on the girder.

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28 That leaves the evidence of Dr Lord. The trial Judge said of his evidence (pars 60 to 62):

"Having seen and heard Dr Lord give evidence I am of the view that he was in no way biased or unreliable in that evidence, albeit that he was the medical practitioner who from time to time was available for consultation at the defendant's nursing post by injured workers. I do not accept any suggestion that Dr Lord in that role had a conflict of interest which would impact negatively on his assessment and treatment of the plaintiff or on the evidence he gave relevant to the plaintiff in these proceedings. His note taking in my view was comparatively meticulous and helpful in that he assessed patients both with reference to subjective and objective complaints and observations. He initially saw the plaintiff on 16 June 1992 when he complained of neck pain which had developed approximately two weeks earlier and at that stage he referred the plaintiff for further treatment including physiotherapy and massage.

He again saw the plaintiff on 4 August 1994, the day after the first alleged accident, when the plaintiff was complaining of neck and shoulder pain which had grown worse in the last 24 hours. The doctor noted tenderness in those areas but interestingly, also noted that the plaintiff had a fairly full range of neck movement at the time. There was no mention of lumbar muscle pain at that stage. Consequently, Dr Lord made a diagnosis of a simple sprain relating to the shoulder girdle muscles which did not particularly involve the neck beyond perhaps a component of soft tissue injury. He was adamant in his evidence that his observations at that time and the operation of the relevant pathology as he understood it was not such that at that stage he was seeing the beginning of a large C6-7 disc lesion. I accept Dr Lord's evidence as to the context in which he explained to the plaintiff that he had suffered a strain injury that would probably heal in time. I also consider his reasons for doing so to be entirely appropriate in the circumstances.

In his report of 31 March 1998 Dr Lord confirms this diagnosis when he said that in his view it was a simple strain of the left shoulder, perhaps involving the soft tissues of the neck, which condition did not require treatment beyond the first consultation. He noted that the incident followed some years of

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intermittent neck problems which the plaintiff himself dated back to an incident involving hitting his head on a carport in 1991. In that report Dr Lord concluded that the plaintiff had a serious C6-7 disc lesion which presented with the onset of neck pain one night in April 1997 whilst the plaintiff was in Queensland. The onset was acute with associated loss of power in the left hand and parasthesia [sic] in the left fifth finger. Prior to that time as far as Dr Lord was aware the plaintiff had not presented with symptoms to suggest an acute C6-7 disc lesion, and for that reason he was unable to relate that condition to the injury in August 1994 which he considered to be relatively minor. Again as far as Dr Lord was aware there had been no presentation of ongoing symptoms to suggest a C6-7 disc lesion in the intervening years. The onset of the definitive symptoms in April 1997 was rapid and consistent with the radiological findings on CT scan."

29 Her Honour arrived at the following conclusion (par 64):

"In my view Dr Lord was in a unique position among all the medical practitioners in the sense that he saw the plaintiff immediately after the alleged accident in August 1994 and on a number of occasions after that relevant to the neck in 1995 and 1997. Unlike many other doctors involved in this matter, Dr Lord was able to assess the plaintiff relevant to an objective observation of his symptoms and was therefore not almost totally reliant on the history provided by the plaintiff some time after the incident."

The psychological and psychiatric evidence

30 As to the psychological and psychiatric evidence, I have mentioned that the appellant was referred to three practitioners, Dr Douglas, Dr Booth and Dr McCarthy.

31 Dr Douglas diagnosed the appellant as suffering from a form of reactive depression to his situation. He discounted any underlying psychological disorder and last saw the appellant in early May 1998, when he seemed to be coping quite well.

32 Dr Booth diagnosed the appellant as suffering from a major depressive disorder and a chronic pain syndrome. He concluded that the appellant's current psychiatric condition was caused by the injuries sustained on 3 August 1994. However, he conceded that he relied heavily

(Page 14)

on the history provided to him by the appellant and that, if the appellant did not experience ongoing symptoms of pain in his neck and shoulder in the months following 3 August 1994, or if such symptoms were only intermittent or if he experienced insomnia prior to that accident, he might have to reconsider the question of causation. He also acknowledged that the appellant appeared to be more animated and less stiff in his movements in the video taken on 10 May 2001 than when he attended Dr Booth's rooms.

33 Dr McCarthy, who was regarded by the trial Judge as "extremely clear and cogent in his evidence" and "very balanced" (par 82), was not prepared to conclude that the appellant suffered from a formal psychiatric disorder reasonably traceable to the accident of August 1994 and its sequelae. He also questioned the reliability of the history which he had been given by the appellant. He could not conclude that in 1998 the appellant suffered from a major depressive disorder, but said that such a diagnosis was warranted in 2001. He considered that, because Dr Booth was the treating psychiatrist, he was, in a sense, an advocate for the appellant and therefore not necessarily in a better position to offer an objective forensic assessment regarding his condition and its cause. He did not consider that the appellant's depressive symptoms could reasonably be attributed to his pain and considered that those symptoms did not prevent the appellant from returning to work in an administrative capacity.

The trial Judge's findings

34 That brings me to the trial Judge's findings.

35 It is relevant, first, to mention that the trial Judge formed an unfavourable view of the appellant's evidence. She referred, in this respect, to the inconsistent histories given by him to different medical practitioners and also to his evidence in respect of his consultations with Dr Lord and at the Tweed Heads Hospital which was inconsistent with the records of Dr Lord and the hospital, respectively.

36 She also mentioned, in par 38 of her judgment, that the appellant maintained that the only reason he sought alternative employment with the respondent was because, after the incident on 3 August 1994, he could no longer carry out heavy manual work. However, the evidence revealed that the appellant had sought alternative employment with the respondent prior to that date, having sought a job as a planner with the respondent on 15 June 1994. Also, while the appellant was on leave in January 1995, he applied to register the business name "Regal Maid Domestic Services",

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being the name of a business which was to be engaged in both internal and external cleaning of houses and buildings. While the appellant said that he had not personally intended to be engaged in cleaning work, the trial Judge observed that the appellant "did not seem to be able to explain clearly why external cleaning of houses and buildings was going to be involved or who was going to carry out that particular work …" (par 38). She went on to remark (ibid) that it was curious and made little sense that, if the appellant was in considerable pain as he claimed and as a result had to take leave from work, he would engage in attempting to set up a business venture of that kind. Her Honour also referred (ibid) to other applications made by the appellant for a position of a supervisory nature during July 1996.

37 Finally, in this respect, I have earlier mentioned that the trial Judge considered that the contrast between the appellant's presentation in the video evidence, on the one hand, and his testimony at trial and the medical histories provided by him, on the other, was such as to reflect negatively on his reliability and credibility as a witness.

38 As to the nature and sequelae of the injuries suffered by the appellant as a consequence of the incident on 3 August 1994, her Honour said (pars 105 and 106):

"… I do not consider that the whole of the medical evidence before the Court supports a conclusion that as a result [of the incident on 3 August 1994] the plaintiff suffered an aggravation of pre-existing injuries to the neck, left shoulder or upper back. Overall, for reasons previously expressed, I prefer and accept the diagnosis of the treating doctor at the time, Dr Lord, of a simple sprain to the shoulder girdle muscles and at its highest a component of soft tissue injury to the neck, both of which would appear to have been quite minor. It is necessary to consider the fact that the plaintiff had no time off work as a result of this injury and at most spent a week carrying out lighter duties before he continued to perform his work as a mechanical fitter for a period of some 14 months before he applied for and obtained a position as a maintenance technician with the defendant. During this period of time the plaintiff took no sick leave despite the fact that he was eligible for unlimited paid sick leave with the appropriate medical documentation. I do not accept given the plaintiff's history of employment with the defendant that in those circumstances he would lose his job if he availed himself of the available sick leave. When the

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plaintiff did take leave between 22 December 1994 and 9 January 1995 his explanation was that he required leave for personal and family reasons rather than because of his state of health and pain level.

It is difficult to accept the plaintiff's evidence that he was in considerable pain during this period and was suffering flare-ups when one considers the above evidence as well as the documented attendances of the plaintiff at the nursing post."

39 Next, her Honour said (par 107) that the history given by the appellant to a number of medical practitioners indicated that he had suffered neck problems, including neck stiffness, for a considerable time prior to August 1994. She referred, in that respect, to her preference of Dr Lord's evidence, and notes, over the evidence of the appellant as regards what Dr Lord was told on 5 January 1995. She went on to say (pars 108 to 110):

"The plaintiff returned to work in January 1995 and continued to work as a mechanical fitter until October 1995 and then as a maintenance technician for the defendant with little or no time off work, apart from normal annual leave, until the incident of 15 December 1997, being a period of almost three years. The plaintiff was on leave between 22 December 1997 and 9 January 1998 when once more he returned to work and carried out duties as a maintenance technician until he ceased work on or about 12 February 1998. It is most curious that this was the day after the plaintiff learnt that he had been unsuccessful in applying for another job with the defendant on 3 January 1998. It was not until 12 February 1998 that for the first time the plaintiff consulted his general practitioner, Dr Lagan, regarding the neck pain and attributing it to his injuries at work.

I do not accept that when the plaintiff attended upon Dr Lord on 8 April 1997 he was suffering pain and loss of power in the left arm and left hand because if he had been it is inconceivable that he would not have mentioned it to Dr Lord and equally inconceivable if he had mentioned such significant symptoms at the time, that they would not have been noted by Dr Lord and indeed have given Dr Lord considerable cause for concern regarding the plaintiff's condition at that time. The information in the hospital notes from Tweeds Head [sic] Hospital that the plaintiff had a long history of wry neck for the preceding

(Page 17)

10 years could in my view have only come from the plaintiff, despite the fact that he denies giving this information to hospital staff. Given that loss of power and radiating pain in the left arm are clearly symptoms of significance and concern, it is very difficult to understand why the hospital notes at that time make no reference to this particularly as this is the reason that the plaintiff claims he attended the hospital in the first instance. Despite the plaintiff's insistence to Dr Lord on 13 May 1997 that he felt strongly his cervical injury was related to striking his head on a girder some years before in 1990 or 1991 I accept Dr Lord's evidence that he felt the current lesion he noted at that time was more recent in origin although he could not say when it actually occurred.

On all of the above evidence in my view there is little doubt that the symptoms suffered by the plaintiff following the incident of August 1994 abated a very short time after and I do not accept they precluded him from carrying out his normal employment at that time or the lighter work that he then undertook when he changed jobs within the defendant's organisation. Even if the defendant was liable for the plaintiff's injury on 15 December 1997, which I have found not to be the case, then once more any symptoms which arose as a result of that incident I find would have been very short in duration and not debilitating to the extent that they prevented the plaintiff from carrying out his normal duties."

40 Her Honour also found it curious (par 111) that the appellant made no mention to Dr Lagan, on 20 June 1997, of neck, shoulder or even low back pain. She formed the opinion (par 112) that the symptoms complained of in Queensland appear to have arisen relatively suddenly, as distinct from being part of a chronic and ongoing process.

41 As to Mr Vaughan, her Honour said that he relied very heavily on the appellant's history and that his opinion was "speculative to a very large degree". She also mentioned that he and Dr Salmon (a pain specialist) were of the opinion that the appellant was capable of carrying out clerical work, work of that nature having been open to the appellant with the respondent.

42 As to Mr Thomas, the trial Judge stressed that he was not clear as to the origins of the appellant's symptoms, or when the disc protrusion occurred, although, she said, on balance he appeared to favour May 1997

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as the most likely time. I have earlier mentioned that she noted that Mr Thomas was very reliant on the history recited to him.

43 The trial Judge also found Professor Harper's evidence to be speculative and repeated that he acknowledged that the girder incident could have been the cause of the appellant's left arm symptoms.

44 Her Honour concluded (par 115):

"On the evidence available I find that the plaintiff's injury to his shoulder girdle with possible involvement of soft tissue injury to the neck on 3 August 1994, resulted in some pain and discomfort and some limited physical restrictions in terms of heavy lifting and twisting, but that he has at all times since that date or shortly thereafter and continuing, been able to carry out lighter work, for example, that of a maintenance technician."

45 As to the psychiatric evidence, her Honour accepted that of Dr McCarthy to the effect that, in all likelihood, the appellant's depressive symptoms began in 1998 and were, in any event, mild, at least until the middle of 2001 (par 116). She also accepted (par 117) Dr McCarthy's evidence that he was not persuaded that the appellant suffered from any formal psychiatric disorder that might reasonably be traced to the accident of 1994 or its claimed sequelae.

46 It followed from these conclusions that no award was justified in respect of either past or future economic loss or loss of superannuation. Nor was any award justified in relation to future gratuitous services. The only awards which, in her Honour's opinion, were justified were one for general damages compensating the appellant for pain and discomfort with limited physical restrictions for a short period of time after the accident on 3 August 1994 (in respect of which she awarded $3000) and one for past gratuitous services (in respect of which she awarded $500).

47 Finally, so far as the second accident is concerned the trial Judge found that the appellant was well aware that lifting the desk, or assisting to do so, was dangerous, given the fact that he had been on lighter duties for some time. In addition, she said (par 104), he had undergone a safe manual handling course, conducted by the respondent, some time before. She found it quite implausible that the respondent would have coerced him into assisting with the removal of the desk (contrary to a suggestion to that effect made by the appellant to Professor Milos Nedved, an expert in the field of safety engineering). Her Honour consequently found that it was the appellant's own negligence and behaviour which led to his injury.

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The grounds of appeal

48 There are six grounds of appeal. All but one (ground 2) challenge the trial Judge's assessment of damages arising out of the incident on 3 August 1994.

49 Ground 1 asserts that the assessment of $3500 was well below an amount which would be awarded on the exercise of a sound discretionary judgment and is unreasonable and unjust. Ground 3 contends that the failure to make an award for past and future economic loss and loss of superannuation and awards for future services and medical expenses was erroneous, given that the appellant can now only perform light work and suffers from depression. Ground 4 challenges the award for general damages as being "wholly erroneous". Ground 5 contends that the trial Judge failed to give any or any adequate weight to the evidence of Dr Booth and Dr Douglas in concluding that the appellant's depressive disorder was not related to either of the two accidents. Ground 6 challenges a number of the trial Judge's conclusions by asserting that she erred in:

"(a) failing to implicate the accident of 3 August 1994 in the depressive illness suffered by the Appellant (Plaintiff);

(b) failing to give any or any sufficient weight to the Appellant's (Plaintiff's) previous good work history prior to the accident of 3 August 1994;

(c) failing to give any or any sufficient weight to the Appellant's (Plaintiff's) previous good medical history;

(d) concluding that the Appellant (Plaintiff) merely suffered a simple shoulder girdle strain and soft tissue injury to the neck of a minor nature with symptoms of short duration given the fact that:


(i) the Appellant (Plaintiff) changed his work to light duties (T91);

(ii) ceased to function at his pre-accident level of activity;


(e) failing to give any or any sufficient weight to progress notes of Dr Lord, in particular the note dated the 8th April 1997 (Exhibit D4) to the effect that the Appellant's (Plaintiff's) medical condition had deteriorated and he

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was suffering with severe symptoms in April 1997 prior to his Queensland visit and the second accident - (T92)."

50 By ground 2, the appellant challenges the trial Judge's finding that the respondent was not negligent in respect of the injuries sustained by the appellant on 15 December 1997.

Grounds 1, 3(i) to (iv) inclusive, 4 and 6(b) to (e)

51 It is convenient to consider grounds 1, 3(i) to (iv), 4 and 6(b) to (e) together, as these all raise the question, in one form or another, whether the trial Judge was wrong in concluding that the appellant suffered only a simple shoulder girdle strain and soft tissue injury to the neck which was of a minor nature.

52 The starting point in an analysis of these grounds must be that the trial Judge did not accept the appellant's evidence as regards the nature and consequences of the injuries sustained by him on 3 August 1994.

53 There were various factors, apart from the medical evidence, which led her to this view. I have earlier mentioned most of these, including the video evidence, the fact that the appellant had no time off work as a result of his injuries, the documented attendances of the appellant at the nursing post, the conflicts between the appellant and Dr Lord, the conflicts between the evidence of the appellant and the notes of the Tweed Heads Hospital, the appellant's delay in consulting Dr Lagan about his alleged symptoms and the appellant's failure, when he saw Dr Lagan in September 1997, to mention his neck, shoulder or even low back pain. Her Honour also found it "most curious" that the appellant ceased work on 12 February 1998, the day after he learned that he had been unsuccessful in applying for another job with the respondent (par 108).

54 As to the medical evidence, I have said that the trial Judge did not consider that the whole of this evidence supported a conclusion that, as a result of the incident on 3 August 1994, the appellant suffered an aggravation of pre-existing injuries to the neck, left shoulder or upper back. I have mentioned that she preferred and accepted the diagnosis of the treating doctor, Dr Lord, of a simple sprain to the shoulder girdle muscles and, at its highest, a component of soft tissue injury to the neck, both of which appeared to be quite minor. While some effort had been made to discredit Dr Lord, given that he had been engaged by the respondent to provide medical services at its clinic, and was consequently said to have had a conflict of interest, I have also mentioned that her Honour said that, having seen and heard him give evidence, she was

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"of the view that he was in no way biased or unreliable in ... [his] evidence" and she dismissed the suggestion that any conflict of interest "would impact negatively on his assessment and treatment of the … [appellant] or on the evidence he gave relevant to the … [appellant] in these proceedings" (par 60).

55 Mr Vaughan, in his evidence, acknowledged that Dr Lord's contemporaneous observations were "very important". In the course of his evidence, he agreed with the cross-examiner that Dr Lord's notes and opinions to the effect that, when he saw the appellant in 1994, the problem related to the C4-5 level was "very relevant when … looking at causation". The following exchange then occurred:

"It's unlikely if it was a C4-5 problem in 94 that this acute episode in 97 is in any way related to the 94 incident?---That would be nearly correct. I mean, I can't be certain of anything in these matters but what Dr Lord has said I would regard as being very important in the progress of the legal side of this because he's a good reporter of conditions."

56 I have earlier mentioned that Mr Vaughan went on to accept that the banging of the appellant's head on the girder could cause trauma to the cervical spine, resulting in degenerative change of a kind which could become symptomatic as a consequence of an event as minor as a sneeze. On Mr Vaughan's evidence, taken at its highest in favour of the appellant's case, it was impossible to say that the eventual disc protrusion (which must have happened after January 1997) was more likely to have been a consequence of the incident on 3 August 1994 than of that in which the appellant struck his head on the girder.

57 As to Mr Thomas, I have earlier mentioned that the trial Judge said that he was very reliant on the history recited to him and that he acknowledged that the person who saw the appellant at the material time was in a better position to make a diagnosis of what had happened at that time.

58 Dr Goodheart, too, relied upon the history given to him by the appellant. Also, as I have earlier mentioned, he, too, acknowledged that the practitioner who saw the appellant regularly over the relevant period of time was in the best position to make a diagnosis of what had occurred.

59 I have earlier referred to Prof Harper's evidence, in the course of which he acknowledged that his hypothesis was affected, albeit not eliminated, by the incomplete history given to him by the appellant and

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that the incident which occurred in 1990 could have been the initial insult which weakened the disc and ultimately resulted in the herniation of that disc. He also acknowledged that it was fair to say that Dr Lord, as the treating doctor at the relevant time, had "an advantage".

60 Finally, I have mentioned that each of Mr Beaver and Prof Hollingworth acknowledged that the disc prolapse at C6-7 could have been caused when the appellant banged his head on the girder and, indeed, that Mr Beaver considered that it was more probable that a major blow to the neck or head would cause a disc injury than a pulling and tugging motion of the kind which occurred in the course of the incident on 3 August 1994.

61 In all of these circumstances, it seems to me that it was undoubtedly open to the trial Judge to disbelieve the appellant's evidence in the respects to which she referred and, taking into account the whole of the medical evidence (as she did), to prefer the opinion of Dr Lord over such evidence as might be regarded as offering a contradictory opinion in finding that the physical injuries suffered by the appellant on 3 August 1994 were minor, with only short-term consequences.

Grounds 3(v), 5 and 6(a)

62 Grounds 3(v), 5 and 6(a) are those which challenge the trial Judge's finding that the depression now suffered by the appellant was unrelated to either the incident which occurred on 3 August 1994 or to that which occurred on 15 December 1997.

63 She found, in that respect, that both Dr Booth and Dr McCarthy reviewed the appellant only some years after the incident in 1994 and, indeed, some time after the 1997 incident. She also found that both were reliant on the appellant's account of events.

64 I have mentioned that her Honour accepted the evidence of Dr McCarthy to the effect that, in all likelihood, the appellant's depressive symptoms began in 1998 and were, in any event, mild, at least until the middle of 2001. I have also mentioned that she accepted Dr McCarthy's evidence that he was not persuaded that the appellant suffered from any formal psychiatric disorder that might reasonably be traced to the accident of 1994 or its claimed sequelae. She mentioned, in this respect, that, on the information available to Dr McCarthy from the psychologist, Dr Douglas, and also from a psychiatrist, Dr Shannon, in 1998 the appellant had had only mild symptoms of depression which were not such as to require continuing psychiatric treatment. I have earlier referred to

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Dr McCarthy's comments with respect to Dr Booth's evidence. In my opinion, nothing has been placed before us to suggest that it was not open to her Honour to prefer the evidence of Dr McCarthy over that of Dr Booth and Dr Douglas, more particularly given the other evidence, accepted by her Honour, as to the limited extent of the appellant's physical injuries suffered on 3 August 1994 and their short duration.

Grounds 1, 3, 4, 5 and 6, taken as a whole

65 In my opinion, it follows, from these conclusions, that none of grounds 1, 3, 4, 5 and 6 has been made good.

66 Once it is accepted that the trial Judge was correct in her conclusion that the appellant suffered only a simple shoulder girdle strain and soft tissue injury to the neck of a minor nature, and that the appellant's current psychological or psychiatric problems are unrelated to the incident on 3 August 1994 (and, indeed, to that which occurred on 15 December 1997), it cannot be said that the award of $3000 for general damages was outside the limits of a sound discretion or that the award of $500 for past gratuitous services was too low. Nor can it be said that her Honour erred in failing to make an award for past and future economic loss and loss of superannuation or in failing to make awards for future services and medical expenses. No other error has been shown.

Ground 2

67 As to ground 2, the appellant said, in the course of his evidence, that employees of the respondent "did a lot of moving furniture" and that "it was just one of those things that we all did, move our furniture, get new stuff, get rid of the old stuff …". He also said that it was expected of the employees that they would help each other. There was no suggestion, as regards the incident on 15 December 1997, that any supervisor of the appellant had ordered him to assist his co-worker to move the desk. Rather, on his evidence, when his co-worker asked for assistance he voluntarily agreed, in the belief that his neck and back were up to the task.

68 I have mentioned that, as he acknowledged in the course of his evidence, the appellant had undergone a safe manual handling course in July 1993. He had also undergone a safety management course in May 1995. The appellant also acknowledged that the respondent did not want its employees to become injured and that it required employees who thought they were at risk of injury to say so, either by objecting or by going to see a supervisor.

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69 In these circumstances, and given the trial Judge's finding (which was not in dispute) that the appellant was well aware that lifting the desk, or assisting to do so, was dangerous, it seems to me to have quite plainly been open to her Honour to reach the conclusion that no liability could be ascribed to the respondent in that respect. It is worth mentioning, in this regard, that there has, in recent times, been a greater emphasis, in the law of negligence, on the acceptance by individuals of a personal responsibility for their own conduct than may previously have been the case: see Reynolds v Katoomba RSL All Services Club Limited (2001) 53 NSWLR 43 at 48 [26]; Waverley Municipal Council v Swain (2003) A Tort Rep 81-694 at 63,778; Tomlinson v Congleton Borough Council [2004] 1 AC 46; Uzabeaga v Town of Cottesloe [2004] WASCA 57 at [65] and Gondoline Pty Ltd v Hansford [2002] WASCA 214; and see also DA Ipp: "Policy and the Swing of the Negligence Pendulum" (2003) 77 ALJ 732 at 741 – 743. In this case, the appellant was not required by his employer to do what he did. Indeed, the courses which he had undergone and the general safety requirement of the respondent, which he acknowledged, should have told him that he was required not to take a risk of injury, of the kind which he chose to take. It is difficult to know what more the respondent could sensibly have been expected to do to avoid that kind of risk. In the end, it seems to me, the appellant was, in effect, the sole author of his own misfortune.

70 It follows that ground 2 has not been made out.

Conclusion

71 It follows, from these conclusions, that none of the grounds of appeal has been made out and that the appeal should consequently be dismissed.

72 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Steytler J. I agree with those reasons and agree that the appeal should be dismissed.

73 EM HEENAN J: I have had the advantage of reading in draft the reasons to be published by Steytler J. I agree with those reasons and have nothing further to add.