Chase v New South Wales - [2004] NSWCA 441

NEW SOUTH WALES COURT OF APPEAL

CITATION: Chase v State of New South Wales [2004] NSWCA 441

FILE NUMBER(S):
40702/03

HEARING DATE(S): 11 October 2004

JUDGMENT DATE: 01/12/2004

PARTIES:
Patricia Lynette Chase - Appellant
State of New South Wales - Respondent

JUDGMENT OF: Giles JA Tobias JA Bryson JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 284/01 (Gosford)

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL:
R S McIlwaine SC & R E Quickenden - Appellant
J E Maconachie QC & P N Khandhar - Respondent

SOLICITORS:
Taperell Rutledge - Appellant
Turks Legal - Respondent

CATCHWORDS:
Personal injuries - causation - disc injury to back - found not to have been caused by jumping from a desk at work but to have been caused in the course of a cycling event - whether failure to take into account evidence said to favour injury in jumping from a desk - whether failure to give sufficient weight to admission by payment of workers compensation - finding not shown to have been appealably erroneous. ND

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40702/03
DC 284/01 (Gosford)
GILES JA
TOBIAS JA
BRYSON JA
Wednesday 1 December 2004

CHASE v STATE OF NEW SOUTH WALES

Judgment

GILES JA: The appellant was employed by the respondent. She said that she suffered a back injury on 16 September 1999 when she jumped off a desk at work. In October 1999 the appellant was found to have a disc injury at the L5/S1 level with compression of the S1 nerve root, which required a microdiscectomy and left her with pain and weakness in her left leg and considerable restriction in her activities. She claimed damages for this injury as the injury suffered in the incident at work.
Gibson DCJ held that the system of work which required the appellant to be on the desk and led to her jumping off it was an unsafe system. Her Honour found, however, that there was at most a minor injury when the appellant jumped off the desk, and that the injury for which she claimed damages was not causally related to the incident at work. She gave judgment for the respondent.
For the reasons which follow, in my opinion the appeal against her Honour’s decision should be dismissed.
The incident at work
The appellant was employed as a clerical officer by the Department of Community Services at Peat Island. On Thursday 16 September 1999 she was closing and locking the windows in the building in which she worked, a responsibility of the employees under a roster system. One of the windows was difficult for a person who was not tall, who had to climb onto a desk to reach it. The appellant used a chair to get onto the desk and shut the window. The presence of another employee outside made her uncomfortable about using the chair to get off the desk. She put her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWCA 441
Decision Date: 1 December 2004

CaseChat Overview and Summary

In *Chase v New South Wales*, the appellant, Ms Chase, appealed a decision of the primary judge who found that her disc injury to the back was not caused by jumping from a desk at work, but rather occurred during a subsequent cycling event. The dispute centred on whether the primary judge had adequately considered evidence favouring the appellant's claim that the injury originated from the workplace incident and whether sufficient weight had been given to the fact that workers compensation had been paid.

The legal issues before the appellate court were whether the primary judge erred in her assessment of causation, specifically concerning the appellant's disc injury. This involved determining whether the judge had failed to take into account all relevant evidence, including admissions implied by the payment of workers compensation, and whether the judge's finding that the injury was not caused by the workplace incident was appealably erroneous.

The appellate court found that the primary judge's reasoning, when read as a whole, was sufficiently clear. The judge had acknowledged that the appellant may have suffered "any minor injury" from jumping off the desk, but crucially, did not find that the significant injury for which damages were claimed was caused by that incident. The judge's reasoning highlighted several factors that weighed against the appellant's claim of a work-related injury, including the extraordinary lack of medical attention sought before a long drive and a planned cycling event, and inconsistencies between the appellant's account of continuous and considerable pain and the contemporaneous medical records. The court concluded that these findings were not appealably erroneous.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Read with the reasons as a whole, this was not a finding of complete lack of injury in the incident at work. The judge had earlier referred to “any minor injury” the appellant suffered when the appellant jumped from the desk. The finding was that the injury for which the appellant claimed damages was not shown to have been caused by the incident at work.The evidence in more detail The appellant said that she had a hot bath on the evening of 16 September 1999, but that she still suffered the same pain and her sleep was interrupted. She said that the next morning she “couldn’t lift my left limb off the ground. I was dragging my foot.” Her daughter dropped her at work. The appellant said she went to work because it was her last day before the pre-arranged holidays and she had to finalise reports, but that she was very sore and very cautious in the way she walked or moved. The appellant’s daughter said that she recalled picking the appellant up, and that “I had to lay the seat right back for her to get in the car, she couldn’t get into the car properly”. She said that the appellant told her that she had hurt herself getting down from a desk and that she was “really uncomfortable”. The appellant’s daughter had no further recollection of the occasion, and could not remember anything happening the next morning. The appellant said that on the Friday she told Mrs Cherie Goddard, a fellow employee, of her accident. She said that she was limping when she arrived at work, and that Mrs Goddard asked what she had done. Mrs Goddard gave evidence of an occasion when the appellant did not look well, she asked what the matter was, and the appellant said that she had hurt her back the previous day and it was “really sore”. Mrs Goddard said that she told the appellant to put in an injury form, and that the appellant said that she would. In fact the appellant did not do so. She completed a compensation claim form in September 2000. On the following day, Saturday 18 September 1999, the appellant left for Brisbane where she was to meet others and engage in the bike ride. The appellant did not seek medical attention before doing so. She said that her daughter picked her up again at the end of the Friday, and that she did not seek medical attention because “my doctor was already closed”. The appellant drove from Sydney to Brisbane, a ten hour trip, with a stop at Macksville. She said that she was stiff in the upper part of her leg and that her buttock was very painful and tender. Her car had a manual transmission, and she said that it was quite painful when she used the clutch. She said she took Panadeine, but was quite sore and stiff when she arrived in Brisbane. Mr John King was a fellow cyclist, who had met the appellant on a ride in April 1999 when (in his words) they “became an item”. They were in daily contact. Mr King was in Brisbane. He gave evidence that he spoke to the appellant on the telephone on the evening of 16 September 1999, and that the appellant told him that she had hurt her back jumping off a desk at work; she had “scrambled back to get off the desk and had – she had felt some pain in her back”. The appellant had not suggested that she would not come to Brisbane, and the next day had “just said that she was a bit uncomfortable”. When Mr King saw the appellant on her arrival in Brisbane he noticed that she was limping. He said that the appellant said “that she had pain in her lower back and glute and she - on driving up she’d had to stop a couple of occasions to stretch it and to have a rest and she was uncomfortable”.

Decision

Reasons for decision

Dr John Graham, whose report dated 28 October 2000 was tendered by the respondent, recorded a history of intense pain in the left buttock to thigh when jumping down from the desk, that the symptoms settled a little overnight, that during the drive to Queensland “her leg symptoms deteriorated with the development of soreness in the left calf”, and that cycling was found difficult and the symptoms further deteriorated. Dr Graham said -“The difficulty at issue is of course that of causation. She reports an incident at work just prior to a period of fairly active recreational activity yet at the same time did not make any formal report at work (despite describing the symptoms as fairly florid), and indeed did not make a workers compensation claim when she returned from holidays. It would not seem that a work related history was given to either her general practitioner or Dr Biggs, both of whom would have had no hesitation in asserting a work relationship in this situation. Consequently the main issue is the reliability of the history she provides.Accepting that her history is reliable then I would have no doubt that the injury has been sustained at work and that her current condition has been substantially contributed to by her employment.I have however no way of verifying her history and it does seem in some regards rather unlikely to have occurred as she describes it. Further investigation in this matter would be advisable.I would note that Ms Chase does not have private medical insurance and that the operation consequently would have cost her something in the order of $8,000 from her own income. It would seem surprising to me that she did not claim compensation at that point if she was aware that she was eligible for it.”The judge’s decision I have some difficulties with the judge’s expression of her reasons, apart from the references to injury and lack of injury. I am not sure what her Honour meant by “the rejection of this evidence” in the passage set out in [16] above. The appellant’s credibility is part of assessing the significance of the “medical evidence”. Again reading the reasons as a whole, however, including the judge’s summations of the parties’ submissions, I consider that the judge’s reasoning is clear enough. The judge did not accept the appellant’s evidence of the level of affectation by the incident at work. That did not mean that there was no effect – hence the reference to “any minor injury” suffered in jumping from the desk. But the judge said that it was extraordinary that, if the appellant had been as seriously affected as she said, she did not seek medical attention before leaving for Brisbane, and that it was “a little surprising” that she drove to Brisbane without a significant break if she had been unable to sit in her daughter’s car. The judge noted that the appellant did not seek medical attention in the days before the bike ride began. She considered that the inconsistency between the “contemporaneous medical records”, plainly all the notes and letters of the health professionals in the latter part of 1999, and the considerable and continuous pain attributed to the particular event of jumping off the desk of which the appellant gave evidence counted very much against the appellant’s credit.

Ratio Decidendi

Legal Principle Established

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