Connors v Simplot Pty Limited

[2001] NSWCA 205

CITATION:	Connors v Simplot Pty Limited [2001] NSWCA 205
FILE NUMBER(S):	CA 40990/99
HEARING DATE(S):	22 March 2001
JUDGMENT DATE:	29 June 2001
PARTIES :	Terrence James Connors Simplot Australia Pty Limited t/as Herbert Adams Bakeries
JUDGMENT OF:	Priestley JA at 1; Powell JA at 2; Beazley JA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	92/98
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

COUNSEL:	Appellant: BM Toomey QC/G R Graham Respondent: J Hislop QC/A McInerney
SOLICITORS:	Appellant: Bell & Partners Respondent: Moray & Agnew
CATCHWORDS:	Workers Compensation - Negligence - Employer and Employee - Duty of Care - Safe System of Work - Breach of Duty - Causation
LEGISLATION CITED:	Workers Compensation Act 1987 (NSW): ss 151B, 151M Suitors' Fund Act 1951 (NSW)
CASES CITED:	Vozza v Tooth & Co Limited (1964) 112 CLR 316 Nair v Health Administration Corporation (1994) Aust Torts Rep 81-312 Fox v Wood (1981) 148 CLR 438 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 Morgan v Shenton Pty Ltd (1999) 46 NSWLR 141 McLean v Tedman (1984) 155 CLR 306 Ahmedi v Ahmedi (1991) 23 NSWLR 288
DECISION:	Appeal Allowed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40990/99
DC 92/98

PRIESTLEY JA
POWELL JA
BEAZLEY JA

29 June 2001


CONNORS v SIMPLOT PTY LIMITED



FACTS

The appellant sustained an injury to his back during the course of his employment with the respondent when he lifted a fully laden tray of cakes from ankle height during the course of a production run of cakes which took place about once a week. The task involved bending, lifting and twisting his lower back on a repetitive basis. The respondent had introduced a system of job rotation so that this particular lifting task was interspersed with other tasks which did not involve stress on the lower spine on about an hourly basis.

The trial judge found that the respondent had not breached its duty of care to the appellant and that the appellant’s injury had not been caused by any work related incident.

HELD per Beazley JA (Priestley JA and Powell JA agreeing)

(i) There was no issue that the respondent owed the appellant a duty of care to provide a safe system of work. In the present case, the question was whether there was a breach of that duty: Vozza v Tooth & Co Limited (1964) 112 CLR 316; Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301.

(ii) His Honour erred in applying, as specifying the requisite standard of care owed by an employer, the statements of the High Court in the non-employment cases of Nagle v Rottnest Island Authority (1993) 177 CLR 423, Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 and Morgan v Sherton Pty Ltd (1999) 46 NSWLR 141.

(iii) His Honour was bound to apply the principles stated by the High Court in Braistina as to the standard of care owed by an employer. His failure to do so was a critical oversight in determining whether there had been a breach of the respondent’s duty of care as an employer. See also McLean v Tedman (1984) 155 CLR 306.

(iv) The evidence established that there had been a breach of the respondent’s duty of care.

(v) His Honour erred in finding that there had been no work caused injury.

ORDERS

(i) Appeal allowed;

(ii) Verdict and judgment of the trial judge set aside;

(iii) Verdict and judgment for the plaintiff/appellant;

(iv) Direct the parties to bring in short minutes of order as to the amount of the judgment within three (3) days of today’s date;

(v) Otherwise liberty to apply;

(vi) Respondent to pay the costs of the appellant at trial and on the appeal, but to have a certificate under the Suitors’ Fund Act 1951 (NSW), if so entitled.

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THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40990/99
DC 92/98

PRIESTLEY JA
POWELL JA
BEAZLEY JA

Friday, 29 June 2001



TERRENCE JAMES CONNORS v SIMPLOT AUSTRALIA PTY LIMITED t/as HERBERT ADAMS BAKERIES

JUDGMENT

1    PRIESTLEY JA: I agree with Beazley JA.

2    POWELL JA: I agree with Beazley JA.

3    BEAZLEY JA: The appellant brought proceedings in negligence against the respondent, his employer, claiming he had been injured in the course of his employment on 29 March 1995. He alleged he sustained an injury to his back when, in the course of his duties as a process worker in the respondent’s factory, he lifted a laden tray of cakes from ankle height.

4    The trial judge held that the respondent had not breached its duty of care to the appellant.

5    In reaching this conclusion, his Honour rejected the evidence given by Dr Adams, an expert Ergonomics and Safety Management consultant called on behalf of the appellant.

6    His Honour also found that although the appellant undoubtedly suffered from a serious back condition, he was:

“not satisfied that such injury as [the appellant] described to the medical practitioners, leading to him being bedridden and needing urgent [attention], did in fact ever occur on 29 March 1995.”

7    This finding was based upon his acceptance of the evidence of Ms Toms, the appellant’s former de facto, and the rejection of the appellant on credit grounds.

8    The appellant challenges both findings and contends that his Honour erred both because the evidence established that the respondent’s system of work was unsafe and because there was incontrovertible evidence supporting the appellant’s version of injury so as to render his Honour’s acceptance of Ms Toms’ evidence unsustainable.

Breach of Duty

9    There was, of course, no issue that the respondent owed the appellant a duty of care to provide a safe system of work. The issue was whether there was a breach of duty.

10    His Honour approached the question of whether there was a breach of duty in the following way. First, he extensively set out the pleadings. He then noted that each of the parties relied upon experts in support of their respective cases on liability. He next discussed a number of authorities, which he considered stated the principles which he was required to apply. He followed this by an examination of the expert evidence of Dr Adams which he rejected. He then concluded that the respondent had not failed to take reasonable care and thus there was no breach of duty. Apart from the pleadings, it is necessary to deal with each of these steps in his Honour’s reasoning.

11    His Honour commenced his consideration of the law which, he said, governed his determination, with the statement of Windeyer J in Vozza v Tooth & Co Limited (1964) 112 CLR 316 at 319, that:

“For a plaintiff to succeed it must appear by direct evidence or by reasonable inference from the evidence that the defendant unreasonably failed to take measures or adopt means reasonably open to him in all the circumstances which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.”

12    His Honour next set out a lengthy quotation from the judgment of Mahoney JA in Nair v Health Administration Corporation (1994) Aust Torts Rep 81-312. In that case, Mahoney JA expressed some dissatisfaction with the terms in which the test of reasonable care in cases of employer liability has been expressed, stating at 61,837 that:

“… the relevant test, viz, whether the employer had taken reasonable care to avoid exposing the employee to unnecessary risk of injury: [Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301], is a test of an indeterminate character. It poses the problem: the application of it to the facts will not determine what the employer should do. To that extent it is not a fully satisfactory test of liability.”

13    His Honour observed that Mahoney JA’s judgment was given after the High Court’s decisions in Nagle v Rottnest Island Authority (1993) 177 CLR 423. I will turn to that decision, as well as to Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, shortly. Before doing so, however, it is pertinent to observe that, except by its incorporation in the passage from Nair, Delaney DCJ did not consider the High Court’s decision in Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301.

14    In Braistina the passage from Vozza, to which Delaney DCJ referred, was considered by Mason, Wilson and Dawson JJ, who stated at 308-309:

“It seems right to us to caution the reader against interpreting the concluding phrase in the citation, that is, ‘without unduly impeding its accomplishment’, as furnishing an additional qualification to an employer’s liability independently of the question of what is reasonable in the circumstances. If protective measures are reasonably open to an employer then ordinarily they will not unduly impede the accomplishment of the task. The extent to which proposed measures would unduly impede that accomplishment will bear directly on the question whether it was reasonable to expect them to be undertaken.
Furthermore, it has long been recognized that what is a reasonable standard of care for an employee’s safety is ‘not a low one’ …
… what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. … In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer. As Mason, Wilson, Brennan and Dawson JJ said in McLean v Tedman: ‘Accident prevention is unquestionably one of the modern responsibilities of an employer’.” (bold emphasis added)

15    As will become apparent, his Honour’s failure to consider Braistina (even implicitly as I think was the case) was a critical oversight, because his Honour focussed on the non-employment cases of Nagle and the later decision of Romeo in determining whether there had been a breach of the respondent’s duty of care as an employer. In doing so, his Honour relied upon the statement of Kirby J in Romeo at 480 that:

“Insufficient attention has been paid in some of the cases and by some of the critics, to the practical considerations which must be ‘balanced out’ before a breach of the duty of care may be found. It is here, in my view, that courts have both the authority and responsibility to introduce practical and sensible notions of reasonableness that will put a brake on the more extreme and unrealistic claims sometimes referred to by judicial and academic critics of this area of the law.”

16    Delaney DCJ then referred to another occupier’s case Morgan v Sherton Pty Ltd (1999) 46 NSWLR 141, in which Sheller JA (Mason P and Fitzgerald JA agreeing) referred to Romeo and observed at 145 that:

“… the magnitude of the risk is a factor which itself can be gauged by asking the question whether the risk of the mishap which occurred was so remote that a reasonable person careful of the safety of that person’s neighbour would think it right to neglect it.”

17    Delaney DCJ concluded his review with the observation:

“It is in the context of those principles that I now turn to consider the evidence on liability in this case.”

18    The warning given by Kirby J in the passage to which I have referred was not one of general application, but was given expressly in the context of the type of case there under consideration. Delaney DCJ identified the issue being considered by the High Court in Nagle as relating to the standard of care of an occupier. That is an imprecise categorisation. The duty of care was found by the High Court to lie in the nature and extent of the powers and duties conferred by the respective statute in each case on the public body which had the care, control and management of public recreational facilities and public nature reserves.

19    In Romeo, the plaintiff had, whilst in an intoxicated state and at night, fallen from a cliff at an unfenced part of a nature reserve which stretched for about two kilometres along a scenic cliff top. There were no paths or trails leading to the area where she fell and it was some distance from the car park which serviced the reserve. In considering whether there had been a breach of the respondent’s duty of care, Toohey and Gummow JJ stated at 454:

“the respondent was [not] obliged to ensure, by whatever means, that those coming onto the Reserve would not suffer injury by ignoring an obvious danger. This is particularly so in the case of the cliff which did present an obvious danger.”

20    Their Honours added at 455:

“There was a duty of care on the defendant to take any steps that were reasonable to prevent the foreseeable risk becoming an actuality. But reasonable steps did not extend to fencing off or illuminating the edge of a cliff which was about 2 km in length. The relationship of the car park to the rest of the Reserve did not call for special precautions at the cliff face nearby.”

21    It is clear from the above that Nagle and Romeo are quite different from this case. Notwithstanding that, his Honour considered that the caution expressed in those cases, endorsed by Mahoney JA’s reference to Nagle in Nair, impacted upon the content of the duty of care owed by an employer to an employee. Whatever may have been the basis of the problem with which Mahoney JA was grappling, the position is that the trial judge was bound to apply the principles stated by the High Court as to the standard of care owed by an employer. For present purposes, those principles are to be found in Braistina. See also McLean v Tedman (1984) 155 CLR 306. By making Nagle, Romeo and Morgan v Sherton his reference point, his Honour misunderstood the measure or the content of the requisite standard of care.

22    That leads to the next aspect of Delaney DCJ’s judgment. His Honour spent a considerable portion of his judgment quoting extensively from the report and oral evidence of Dr Adams. He concluded:

“I state now my impression of Dr Adams as he gave this evidence. Dr Adams did not impress me in the way in which he gave this evidence. He, it seemed to me, was endeavouring to reach for information which was not necessarily contained in his reports to come to a conclusion which, as will become clear from my review of the evidence of Dr Oxenburgh, I consider was a matter, whilst theoretically foreseeable by an employer, was within the terms of the principles set out by Kirby J in Romeo and restated by [Sheller] JA in Morgan [v] Shenston (sic).”

23    I pause to comment at this stage that if there was any doubt, that his Honour applied the standard of care considered appropriate to a public authority in charge of a large public area or nature reserve to this case, rather than that applicable to an employer, that doubt is removed by this last statement.

24    His Honour concluded:

“[Dr Adams] believed that he was the sole fountain of information on ergonomics and that his opinion should be accepted, notwithstanding any other views. In the end, I am not satisfied that his view should prevail over those of Dr Oxenburgh as to the system of work creating a danger as alleged by the plaintiff in this case.”

25    His Honour continued:

“This, of course, does not conclude the matter by any means. However, the question which has to be determined is whether or not in all the circumstances there was available to the defendant means which could be reasonably be taken to avoid the risk of injury, which would be foreseeable in the circumstances of the type of work which was involved.”

26    His Honour next referred to the existence of mechanical trays used in other parts of the factory and said:

“The question is whether or not in all the circumstances it was unreasonable and therefore negligent of the employer to take the course which it did of allowing trays of the type used by the plaintiff to remain being used.”

27    His Honour referred to the system of job rotation and the absence of complaints of previous back injury and said:

“… the question is whether or not in the circumstances of the principles to which I have referred it is a case in which the defendant should be found liable for not having provided such equipment.”

28    His Honour concluded:

“… so far as the obligation of the employer is concerned on the principles to which I have referred, I have reached a conclusion on that issue alone that there was no breach of duty by the defendant in accordance with the principles which I have outlined.”

29    As I have already indicated, his Honour applied the wrong standard of care in reaching this conclusion. He also failed to deal with the alternative cases put by the appellant. In addition to the availability of mechanical means, the appellant also alleged there were two other reasonable steps which the respondent should have taken to avoid the risk of foreseeable injury. The first was to have two persons to perform the task. The second was that the use of the bottom trays should be eliminated so as to obviate the need to bend, lift and twist.

30    His Honour’s failure to consider these matters means that the verdict for the respondent cannot stand. The question then arises whether this Court should decide the matter for itself or remit it for a new trial on the question of liability. This Court is only entitled to substitute its own finding if the evidence is such that his Honour ought to have found breach. Otherwise, the appellant, whilst succeeding on the appeal, would only be entitled to a new trial.

31    The Court has not been particularly assisted in resolving this question because his Honour made no relevant findings of fact on the case sought to be made by the appellant. That might of itself indicate that a new hearing is required. However, a review of the evidence called on behalf of the respondent is such that I consider a new trial is not necessary.

32    I should state at this point that I propose to ignore the evidence of Dr Adams, having regard to his Honour’s credit finding: see Ahmedi v Ahmedi (1991) 23 NSWLR 288. I am also of the opinion that the Court should ignore the assertion in the appellant’s evidence that the space in which he was required to work was cramped. Dr Oxenburgh said it was not. That is a question of fact about which his Honour made no finding.

33    That leaves the evidence in the following state. The appellant’s work involved him bending, lifting and twisting his lower back. Dr Oxenburgh accepted that “bending down below mid-thigh may be stressful to the back”. That is uncontroversial. I consider this Court is able to infer that a task involving bending, lifting and twisting is even more stressful. The evidence from all the witnesses was consistent, that the weight the appellant was required to lift was 17 kilograms when the trays were loaded. The lowest tray he had to bend over to lift was about 20 centimetres from the floor (or at about ankle level). In all, there were four shelves from ankle height up to mid thigh level. There were approximately 740 trays for each production run. There was a production run about once a week. The respondent’s job rotation system involved doing this task for an hour at a time, interspersed with other jobs which did not involve stress on the lower spine. In an 8 hour shift the appellant was required to do this particular task for 4 hours in total.

34    It was also apparent from Dr Oxenburgh’s evidence that the appellant would have to unload about 180 trays an hour in each of those 4 hours, and would have to bend, lift and twist about 60 times in the hour. For the balance of the time the appellant was required to lift and twist from either waist or shoulder height.

35    Dr Oxenburgh referred to the load limits recommended in the National Code of Practice for Manual Handling (published by the National Occupational Health and Safety Commission (Worksafe Australia 1990)). The manual specified advisable load limits of within or below 16 - 20 kilograms.

36    He also referred to the National Institute of Occupational Safety and Health (USA) (NIOSH) Guide. He expressed some caution about the use of the Guide. That caution was reactive to Dr Adams claim that the Guide had been endorsed by NIOSH. Dr Oxenburgh asserted that this was not correct. He also pointed out that the equation found in the Guide for the “design and evaluation of manual lifting tasks … attempts to be applicable to 90% of the [American] population but there are no correction factors for gender or age”. He commented, however, that if its limitations were borne in mind, he agreed with Dr Adams that it was “a useful guide”.

37    Dr Oxenburgh then set about applying the formula from the Guide to determine the appropriate weight limitation for the task involved. Dr Adams had also done this and found a recommended weight limit of 2 kilograms. This was based on the most strenuous lift (that is, the bottom tray) with an assumed frequency of 6 lifts per minute continuously maintained for four hours and that all lifts were of 18 kilograms.

38    Dr Oxenburgh considered Dr Adams’ approach to be flawed. He said:

“In my opinion it [is] more sensible to examine the lifts not as Dr Adams has done and assumed that all the lifts are equal to the most strenuous lift but to examine each type of lift more carefully. This I have done using the same NIOSH equation as Dr Adams and found that, for the bottom full trays the recommended weight limit is 11 kg and for the trays above shoulder height the recommended weight limit is also 11 kg. For the middle trays the recommended weight limit is 15 kg.” (emphasis added)

39    The appellant relied on this conclusion to demonstrate that, even with the method of hourly task rotation, the system was unsafe as there was no dispute that the trays when loaded, weighed on average 17 kilograms.

40    It was submitted that there was further support for this conclusion from a rehabilitation counsellor, Robert Migliore, who was retained by the respondent to develop the appellant’s “Return to Work Programme”. In his first “Return to Work Report” dated 30 May 1995, directed to the appellant’s treating general practitioner, Mr Migliore observed that the task the appellant was performing when he sustained his injuries “had now been modified to prevent future workplace related injuries”. The modification was that the bottom three trays were no longer being used for baking, so that the bending, lifting and twisting action, which the appellant alleged caused his injury, was no longer part of the task.

41    His Honour made no reference to Mr Migliore’s evidence. However, Dr Oxenburgh in his report, said:

“It is possible to reduce the number of trays in the rack by taking out the bottom shelves and this would reduce the requirement to bend.”

42    Dr Oxenburgh’s evidence and that of Mr Migliore to which I have referred, is consistent only with there being a foreseeable risk of injury against which reasonable precautions were required to make the system safe. In Dr Oxenburgh’s view, the system of job rotation was a sufficient precaution. He said:

“Bending down below mid-thigh level may be stressful to the back but when the other factors of weight lifted, duration and frequency of lifting, posture and job rotation are taken into account, in my opinion the injury is not compatible with being caused by the [appellant’s] tasks on the Nature Cake production line.”

43    However, Dr Oxenburgh was not qualified to express this opinion. It was a medical matter and not within his competence. It was also wrong on the respondent’s own medical case.

44    That left the other three possible precautions advanced on behalf of the appellant: the use of mechanical means, making the task a two-person job, and the cessation of use of the bottom trays. I have already mentioned that prior to the accident the respondent had available an automated means of lifting the trays. His Honour found against that as being a reasonable precaution and it can be left to one side for present purposes. I also propose to pass over converting the task to a two-person job. I have done so because the third proposed method was one in fact implemented by the respondent. Within months of the accident the appellant had modified the task by eliminating the stacking of the bottom three trays. Dr Oxenburgh considered that was a reasonably available precaution which “would reduce the requirement to bend”. There was no evidence that the implementation of this modified work practice had been impractical or financially onerous. The onus was on it to establish that, if that was the case: see Braistina at 308. On the evidence the modification to the method of work was a means which was “reasonably open” to the respondent “which would have protected the plaintiff from the dangers of his task”: see Vozza at 319. The ready implementation of the method supports this conclusion.

45    In my opinion, the only conclusion which can be drawn from the evidence is that as the implementation of the system of rotation of work tasks was inadequate in the circumstances to protect the appellant from the risks involved in repetitive bending lifting and twisting which he was required to undertake, the respondent failed to take reasonable care for the appellant’s safety. As the appellant established there was reasonable available means to protect him from the foreseeable risk of injury, therefore, the respondent had breached its duty of care to him and his Honour should have so found.

Whether The Injury Was Caused By The Accident

46    That then leaves for determination whether his Honour was correct in concluding that the appellant had not suffered any work place accident which resulted in the serious disability from which the appellant now suffers. As earlier indicated, his Honour based this finding on the “compelling and acceptable” evidence of Ms Toms and the rejection of the appellant’s evidence.

47    Ms Toms’ evidence was that the appellant had not complained to her of anything on the evening of 29 March. She conceded that he went to the doctor’s the next day (they went together). She said however, that he went to the doctor to get a medical certificate to cover his absence from work that day (30 April). This was necessary because that morning he had agreed to stay home from work to help her with their young child, she having had a bad night with the baby. She said he told her he would complain to the doctor that he had hurt his back. She said she had not noticed “anything different” about the appellant on his way to the doctor.

48    However, the appellant had complained at work at about 11.30am on 29 March 1995 that he had injured his back. The complaint was entered in the respondent’s Register of Injuries and signed and dated by the respondent’s first aid officer. A work injury report was also generated in which the time and date of the accident were recorded. It was signed by the first aid officer and also dated 29 March 1995. There was a suggestion this document was backdated. However, his Honour made no clear finding on this and the evidence did not support a finding that this had happened. In any event, there was no suggestion that the Register of Injuries was filled in other than on 29 March 1995 at the time the accident happened. Thus, there was an independent record of the injury made on the day and at the time it happened.

49    29 March 1995 was a Wednesday. The doctor’s notes of Thursday 30 March 1995 record that the appellant complained he had been lifting at work and developed pain in the lower back. This was consistent with the work injury report. The doctor recorded the appellant as being “tender [in the] lumbo-sacral” area. He was prescribed Voltaren and given a WorkCover certificate covering three days.

50    Notwithstanding that the WorkCover certificate covered Friday 31 March, the appellant returned to the doctor on that day complaining that the pain in his back was persisting. This visit was unnecessary if the appellant was merely seeking a day off work. His attendance on 31 March is therefore consistent with genuine and continuing problems with his back.

51    The appellant again attended a doctor on Monday 3 April 1995 and gave the same history. He was diagnosed with a lumbar disc strain. He was referred for an x-ray, which he had on 4 April. The radiologist reported that:

“No disc degeneration can be detected. This does not necessarily exclude a disc herniation.
…
No recent bony injury or disc degeneration can be detected.”

52    The appellant’s problems persisted. On 9 May he had a lumbo-sacral CT scan which revealed “[s]ome central posterior bulging of the L4/5 disc”. Dr New, orthopaedic and spinal surgeon, interpreted the CT scan as showing:

“… broad base disc bulge at L4/5 with some hypertrophy of the posterior intervertebral joints at 5/1.”

53    As his Honour’s judgment reveals, the appellant’s condition deteriorated significantly after this.

54    There was no evidence and no suggestion in cross-examination that the appellant suffered any other injury or incident to his back. Notwithstanding this, his Honour found:

“I have come to the conclusion that the answer to that question [as to the cause of his significant back injury] is to be found in the degenerative changes which he had pre-existing the alleged injury in question, which contemporaneously developed over the next few months, perhaps as a result of the nature of his continuing work. As to the nature and extent of that work, it is not known, but I am not satisfied that such an injury as he described to the medical practitioners, leading to him being bedridden and needing urgent [attention], did in fact ever occur on 29 March 1995.”

55    There was no evidence upon which to base that finding. In fact it was in direct conflict with the radiological evidence to which I have referred. Nor was there any other relevant radiological evidence which could support such a finding. The finding also overlooks the fact that the appellant was substantially off work in the few months after 29 March 1995 and when at work was on light duties.

56    The respondent’s expert orthopaedic evidence was all one way - that the appellant’s disabilities were work related. Dr Wilding said:

“There is a 20% work related permanent impairment of the back when compared with the most extreme case.”

57    Dr Bodel stated:

“This patient clinically is left with a 25% overall permanent impairment of function in the back. This arises as a result of the injury that occurred at work on 29.3.1995 and as a result of the surgery which has followed.”

58    In my opinion, his Honour’s finding that there was no work incident on 29 March sufficient to cause the appellant’s injuries and disabilities was erroneous. The evidence to which I have referred points to the contrary conclusion.

59    His Honour dealt with the appellant’s credibility, not only by reference to the evidence of Ms Toms, but also by reviewing the medical evidence and pointing out apparent inconsistencies in the history of the occurrence of the injury and the experience of pain from time to time.

60    Those doctors were seen over a four year period, during which the appellant had undergone two serious back operations and at one time was in such pain and was so emotionally unstable that he had started to self medicate on a range of anti-depressant and narcotic drugs.

61    Although it is a useful advocate’s tool to utilise inconsistencies within medical reports and other documents, it is always necessary for a fact finder to assess those matters in conjunction with the objective material which is available. An inaccurate history, even if given by someone not affected as the appellant was, is not always determinative of the question whether an injury has been suffered or a disability has resulted from a particular injury.

62    I consider his Honour allowed himself in this case to be swayed in his conclusions as to the appellant’s credit in a way which was inconsistent with the objective evidence.

63    Not only was his Honour’s finding as to the cause of the appellant’s serious back condition unsupported by any evidence, the respondent’s orthopaedic experts attributed the injury and disability to the incident at work on 29 March 1995. The only evidence to the contrary was that of Dr Oxenburgh. As I have already pointed out, Dr Oxenburgh was not qualified to express such an opinion. It should be ignored, and in any event, his Honour does not appear to have relied upon it.

64    In my opinion his Honour erred in finding that the appellant did not suffer the work place injury as alleged. Ms Toms’ evidence, in all the circumstances, must be considered “glaringly improbable” or alternatively, his Honour’s finding was contrary to the other incontrovertible evidence in this case. The orthopaedic medical evidence was consistent with his injuries and disabilities in having resulted from the workplace accident on 29 March 1995. There was no evidence to the contrary.

65    That leaves the question of the amount of the verdict. His Honour awarded individual amounts for the various conventional heads of damage as follows:

Non-economic loss $119,322.50

Past economic loss $79,395.00

Fox v Wood to be calculated

Future economic loss $260,250.00 (less 15%)

Past medicals and out-of-pockets $79,344.93

Future medicals and out-of-pockets $40,000.00

66    His Honour’s individual awards were not under challenge. However, his Honour did not specify the amount of the verdict, and as his judgment indicates, he noted the “Fox v Wood” component had not been agreed between the parties and leave was given to the parties to bring in a minute of the “precise figure that was eventually calculated”. That does not appear to have been done.

67 There were other calculations required for the verdict amount to be arrived at. Future economic loss had to be reduced by 15%. Calculations had to be done so as to comply with s 151B(1)(b) of the Workers Compensation Act 1987 (NSW) in relation to past economic loss, medical expenses and out-of-pocket expenses. Finally, it is uncertain whether any claim was pressed for pre-trial interest: see s 151M(4) of the Workers Compensation Act.

68    In those circumstances, it seems that the appropriate course is to direct the parties to bring in short minutes of order as to the verdict amount.

69    Accordingly, I would propose the following orders:

(i) Appeal allowed;

(ii) Verdict and judgment of the trial judge set aside;

(iii) Verdict and judgment for the plaintiff/appellant;

(iv) Direct the parties to bring in short minutes of order as to the amount of the judgment within three (3) days of today’s date;

(v) Otherwise liberty to apply;

(vi) Respondent to pay the costs of the appellant at trial and on the appeal, but to have a certificate under the Suitors’ Fund Act 1951 (NSW), if so entitled.

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