Cybulski v B and M Investments Pty Ltd

[1996] QCA 369

IN THE COURT OF APPEAL	[1996] QCA 369
SUPREME COURT OF QUEENSLAND

Appeal No. 40 of 1994

Brisbane

[Cybulski v. B & M Investments]

BETWEEN:

JOSEPH ROBERT CYBULSKI

(Plaintiff)

Appellant

AND:

B & M INVESTMENTS PTY LTD

(Defendant)

Respondent

Macrossan CJ
Pincus JA

Fryberg J

Judgment delivered 04/10/1996.

Judgment of the Court

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	NEGLIGENCE - Personal injuries - quantum - back pain - whether trial judge erred in preferring one expert witness over others - whether sufficient support for trial judge's finding that plaintiff exaggerated symptoms.
Counsel:	Mr A.M. Warnick for the appellant. Mr S. Williams QC for the respondent.
Solicitors:	Stephen Jones & Leach for the appellant Bowdens for the respondent.

Hearing Date: 24	September	1996
IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND

Appeal No. 40 of 1994

Brisbane

Before Macrossan CJ

Pincus JA Fryberg J

[Cybulski v. B & M Investments]

BETWEEN:

JOSEPH ROBERT CYBULSKI

(Plaintiff)

Appellant

AND:

B & M INVESTMENTS PTY LTD

(Defendant)

Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 04/10/1996.

The appellant claimed damages for personal injuries arising out of an accident in the course of his employment on 9 December 1987. While working as an apprentice boilermaker on a construction site he fell about seven and a half metres from scaffolding to the ground. The employer's negligence was admitted. Damages were assessed below at $8,042.74. The appellant, by his notice of appeal, contended that damages in an increased sum should be substituted in lieu. In the course of the argument presented on the appeal, it was accepted by both sides that if the appeal were to succeed a new trial should be ordered.

The appellant was born on 10 April 1970 and was thus seventeen years of age when he was injured. Understandably enough, his fall produced injuries and he was, as a result, off work for six weeks. The real issue, however, was whether he had suffered a significant and lasting injury as he contended, or whether, as the trial judge found, his injuries were only minor and sufficiently compensated by the award that was made. The appellant claimed to be left with a disabling back injury. If that issue was not to be decided in his favour, then it was accepted that the appeal would fail.

Amongst the witnesses at trial, there were a number of medical experts called on the appellant's side who provided evidence that was in a number of ways favourable to his cause. However, Dr Maguire, an orthopaedic surgeon, gave evidence for the defence and it was preferred by the trial judge. It led him to conclude the appellant was not suffering any disability in his back resulting from the accident and in particular he did not have, as he claimed, a disc injury attributable to it. Any current disc problem which the appellant had was not shown to be due to the accident, the judge decided.

For the appellant it was contended that Dr Maguire had formed his views as a result of a misapprehension concerning the appellant's accident history, but the judge did not accept that any significant error took from the value of Dr Maguire's opinion. It was said that Dr Maguire wrongly thought that a particular visit by the appellant to hospital seeking treatment was attributable to a further accident but Dr Maguire himself, in his evidence, explained his views in a way that eliminated their dependence upon any erroneous impression he might earlier have laboured under. In the circumstances, there was no reason why the trial judge, with the benefit of hearing the medical witnesses, as well as the appellant himself and a number of other lay witnesses, was not free to prefer the evidence of Dr Maguire to any other contrary medical opinions put forward. No sufficient basis is shown for interfering with the trial judge's conclusions. The judge found that the plaintiff exaggerated his symptoms and was not a reliable witness. Accordingly, the judge reached a conclusion that the appellant's claim, in its substantial aspects, should be dismissed.

When the appellant was conveyed to hospital by ambulance after his accident in December 1987, it appears that he did make a complaint of pain in the lower back. When x-rayed at the Princess Alexandra Hospital on admission it was noted that he had tenderness in the lower back. After discharge from hospital, however, for a very substantial period he made no complaints of back pain when consulting doctors and the contemporary records do not show that back pain caused him to seek treatment until 5 January 1989. On the contrary, when he returned to heavy work in 1988 he was able to continue with it in a way that could reasonably be regarded as inconsistent with his continuing to suffer from the effects of a major injury. His solid employment history and the absence of complaints to treating doctors provided a picture which was not displaced by the fact that the appellant apparently made a few isolated complaints of back pain. A number of witnesses were called to speak of the appellant's work performance post-accident, and a rather varied picture, in some ways not particularly helpful to the appellant, emerged from this. While some of the witnesses spoke of the appellant as being a good and proficient worker, others were distinctly less supportive of his work performance.

It was established by the records that the plaintiff went to the Princess Alexandra Hospital on 5 January 1989 complaining of back pain which was then increasing. Although muscular tenderness was detected, x-rays taken revealed no pathology which tended to support the appellant's complaints. A matter which caused some confusion was that the plaintiff suffered a further injury to his back on 23 January 1989 while lifting steel. The close relationship of the visit on 5 January and the further accident causing the plaintiff to seek treatment on 23 January was something which was said to have caused confusion in Dr Maguire's mind. In one part of the reports he provided he does not seem to have noticed that the appellant sought further treatment for back pain before the second injury occurred. However, in terms of Dr Maguire's final opinion, the trial judge was quite entitled to find that it was not invalidated by any misapprehension under which he may have suffered.

In seeking treatment at different times, the appellant made a number of visits to Dr Patel, a general practitioner, and also to Dr Wright. Three times in the year following the appellant's 1987 accident he saw Dr Patel but made no complaint of back pain to him. After 12 December 1987 records show that the appellant made two visits to hospital but no complaint of back pain was then made. Dr Wright took over from Dr Patel to provide treatment from early 1989 and continued for some three years. In this period he saw the appellant about twenty-four times but received no complaint of back pain from him prior to 1992. There was a reference to back pain associated with the appellant's stretching on a ladder at work. The appellant did not himself claim to have made complaints to the doctors whom he was consulting in connection with other matters. He did say that in fact he was experiencing back pain and had to call on his mother to provide massage. His mother was not called as a witness. Also the fact is that the appellant was able to return to heavy physical work and continue with it. A number of employers for whom the appellant worked over an extended period were called as witnesses on behalf of the respondent and none of them received complaints of back pain from the appellant.

In addition to the general practitioners called for the appellant, three specialists gave evidence on his behalf. They were Dr Pentis, Dr Gillett and Dr Coroneos. Although a hypothesis of disc protrusion was put forward, the trial judge did not accept it. Further, there was some validity in the criticism that Dr Coroneos formed his opinion on the basis of an incorrect history provided by the appellant. Dr Gillett considered that evidence of disc protrusion was detectable on the CT scans but there was some substance in the criticism that the diagnostic procedures involved in such scans lacked a degree of reliability. Other CT scans failed to pick up the same signs. In the end, the thesis advanced on behalf of the appellant that there had been an original significant injury acting in conjunction with progressive degeneration to leave the appellant with bulging disc herniation and incapacity to continue in hard manual labour was a thesis that did not carry the day. Dr Maguire's contrary view was accepted. That view was based on the following considerations. If the 1987 accident had caused a disc protrusion or damaged a disc in a way which led to a protrusion subsequently, it would be expected that there would have been more significant symptoms manifesting themselves at the outset and there would have been an obvious pathology at that time. There would have been significant pain continually experienced and manifest difficulty in performing in heavy work. The appellant would have been compelled to seek treatment for a gravely disabling back condition throughout the years that immediately followed the initial injury. This he did not do, but on the contrary returned to and carried on with heavy labouring tasks. Dr Maguire accordingly concluded that the probabilities were that the appellant had suffered only temporary effects of musculo-ligamentous strain in the initial injury and had no continuing effects from it.

There was a sufficient basis for the trial judge's conclusions and the appeal should accordingly be dismissed with costs.