Gaudry v Pacific Coal Pty Ltd
[1996] QCA 525
•20/12/1996
| IN THE COURT OF APPEAL | [1996] QCA 525 |
| SUPREME COURT OF QUEENSLAND |
Appeal No. 268 of 1995.
Brisbane
[Gaudry v. Pacific Coal P/L]
BETWEEN:
DAVID WAYNE GAUDRY
(Plaintiff) Respondent
AND:
PACIFIC COAL PTY LIMITED
(Defendant) Appellant
___________________________________________________________________________
Macrossan C.J.
Pincus J.A.Lee J.
___________________________________________________________________________
Judgment delivered 20 December 1996
Separate Reasons for Judgment of each member of the Court, Pincus J.A. dissenting.
___________________________________________________________________________
APPEAL DISMISSED WITH COSTS
___________________________________________________________________________
CATCHWORDS: Personal Injury - negligence - insufficient evidence to support findings - advantage of trial judge as to credit - pre-existing weakness and degeneration.
| Counsel: | Mr S C Williams Q.C. with him Mr J A McDougall for the appellant. Mr M M Stewart for the respondent. |
| Solicitors: | Minter Ellison for the appellant. Quinlan Miller & Treston for the respondent. |
| Hearing date: | 26 September 1996. |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 268 of 1995
Brisbane
| Before | Macrossan CJ Pincus JA Lee J |
[Gaudry v. Pacific Coal]
BETWEEN:
DAVID WAYNE GAUDRY
(Plaintiff) Respondent
AND:
PACIFIC COAL PTY LIMITED
(Defendant) Appellant
REASONS FOR JUDGMENT - THE CHIEF JUSTICE
Judgment delivered 20 December 1996.
The Judge has found that the respondent's employer, the appellant, was responsible for
defective working conditions which caused the respondent to suffer a back injury on 20 August 1987.
The respondent is now incapacitated for all but light work. Under all headings of his claim the Judge
has assessed damages for personal injuries in a substantial figure.
The appellant at trial contended that the respondent had not proved that the effects of any injury
suffered on 20 August 1987 persisted beyond his return to work in September 1987 and that contention
is repeated in the arguments advanced on appeal. It is said that the Judge's finding that the respondent's present extensive disability is attributable to the event of 20 August 1987 is unsustainable. This
submission involves a contention that the respondent's own evidence of significant continuing symptoms
commencing from August 1987 should be rejected. Reliance is placed upon alleged inconsistencies in
his description of symptoms, the absence of early complaints of particular symptoms, and the absence
of an early reference to sciatic pain which it was said might have provided a more persuasive basis for
his claims. However, the appellant faces the difficulty that the trial Judge, with the advantage of seeing
and hearing the respondent, appears to have made a very careful assessment of the acceptability of his
evidence and this Court lacks the trial Judge's advantage.
The medical evidence provides a sufficient indication that the respondent now shows a
significant bulging of the lumbo sacral disc at the L5/S1 level but objective evidence of this was not
picked up before a CT scan was carried out in 1990. Earlier x-rays had provided no indication of this
particular abnormality. The result is that there appears to be a sufficient basis to relate symptoms of the
kind of which the respondent now complains to the abnormality detected by the scan. However, the
extent of the symptoms actually experienced by the respondent was a matter about which the Judge
expressed some reservation and this caused him to make an allowance in the assessment of the
respondent's damages. While there was evidence that the physical sign identified by CT scan could
result from an event of the kind experienced by the respondent on 20 August 1987, it was essentially
the respondent's testimony which connected his present symptoms and disability with that event.
Apart from the basic challenge which is made to the findings of the trial Judge, the appellant
contends that the amounts assessed for pain and suffering and for past and present economic loss were
excessive.
The respondent was born on 4 November 1965 and was therefore twenty-one years of age
on 20 August 1987. He had qualified and worked as a boilermaker after leaving school, having reached
grade eleven.
On 20 August 1987 the respondent and another employee were engaging in lifting and
relocating to a workshop bench a shackle pin that weighed about seventy five kilograms. In the course
of this task the respondent felt a dull whipping pain in his lower back. His case is that this represented
the onset of the injury which now disables him.
In the previous year, the respondent had made three complaints of back pain but they were
relatively minor matters and only one of them, in October 1986, caused the respondent to seek medical
attention.
On 20 August 1987 following the incident involving his back, the respondent completed his
day's work but the tasks he then performed were carried out sitting down and would not have been
physically demanding. Notwithstanding painful symptoms felt on the following day, he attended at work
but in the course of it he had to give up and he then consulted Dr Robinson. After some improvement
felt by 4 September, the respondent returned to work on 7 September. However, not long after this,
on 16 October 1987, the respondent slipped and fell on wet concrete at his workplace and, putting out
his arm to break his fall, again experienced painful symptoms and once more had to seek medical
attention. He was able to return to work on this occasion after 10 days, the interval being somewhat
less than that of his absence from work following the August episode.
In the following year, in March, the respondent found it necessary to take ten days off work,
and another three or four in December. On 5 December 1988 he consulted Dr Morgan about his
continuing back pain. The respondent had, in the meantime, applied for workers' compensation. On
21 March 1988 in connection with one application for compensation, he made a statement on the claim form on which the appellant relied. Similar statements appear in two subsequent compensation claim
forms. The first statement said: "This is a continuous claim for a back injury which occurred in October
1987" and the later statements also spoke of aggravation of a previous injury identified as having
occurred in October 1987. The respondent explained these statements by saying that initially he simply
referred back to the last occasion when compensation had been claimed for his back disability. This
does not seem to be an unacceptable explanation and it was, after all, for the trial Judge to assess it.
It should be mentioned that the respondent suffered a third back injury at work when, in the
course of what seems to have been a physically undemanding activity, he was lifting a bag of tools on
21 January 1990. The observation can be made that the second and third incidents which have been
referred to, do not appear to have involved as high a level of physical trauma as the first occasion when
the respondent was helping to lift and move a substantial weight. The respondent's case is that the first
occasion was the one which caused the damage and the later two merely aggravated the condition of
a back already disabled and made vulnerable. Only the first incident is the subject of the action which
the respondent commenced against his employer on 17 July 1990.
From what has been said, it is obvious that it is the acceptability of the respondent's account that
lies at the heart of his case. This makes it desirable to look now, by way of background, at the
symptoms recorded in medical reports of the practitioners whom the respondent consulted over the
period from 20 August 1987.
Although the respondent managed to get through the remainder of the day of the August 1987
accident, he was, as has already been mentioned, obliged to seek medical attention on the following
day. He was advised on that occasion by Dr Robinson to rest and analgesics were prescribed. The
symptoms recorded subsequently in Dr Robinson's report dated 14 August 1990 were of "severe" back pain at the time of consultation, and, on examination, tenderness was noted in the sacro-iliac region.
X-rays taken at the time of consultation showed no abnormality. However, the back was still painful
on 1 September, that is some twelve days later. Improvement then was recorded by 4 September and
the respondent returned to work on 7 September. On the face of things, there was to this point a
contemporaneous record of relevant symptoms and an account of the cause of the disability which is
consistent with the respondent's subsequent claims. There is also a treating doctor's assessment which
bespeaks a certain seriousness in the injury calling for monitoring over the eighteen day period off work.
These features all have a certain significance. It is to be expected that they should have had weight in
the determination of the case.
When next seen by Dr Robinson on 16 October 1987 after the fall at work, the respondent was
in a state of even more painful disablement than before. He was suffering severe muscle spasm which
restricted the opportunity for medical examination. This feature alone is far from establishing the case
which the appellant advances, namely that the episode of 16 October 1987 should be regarded as the
source of the subsequent continuing disability and it is far from demolishing the respondent's case that
the second episode merely represented an aggravation of the effects of the injury which was caused on
21 August 1987.
Once again, analgesics were prescribed. Treated in this fashion the respondent was able to
return to work after ten or eleven days. Improvement in his symptoms was noted by Dr Robinson on
19 October 1987, that is three days after the initial consultation on this occasion. Dr Robinson did not
see the respondent again after 26 October 1987. Dr Morgan then takes up the account.
Dr Morgan saw the respondent on 9 March 1988 when the plaintiff consulted him because of his painful back condition indicating the presence of pain in the L5/S1 area and referring to pins and needles in his thigh. On the history given, Dr Morgan accepted that the plaintiff was suffering from a
work related injury and prescribed analgesics. The history so far given demonstrates a broad
consistency with the respondent's central allegation, namely that the August 1987 incident was the
source of his subsequent disablement.
The reports of the two treating doctors that have been mentioned were based on their
independent observations and were made closest to the critical times. When confirmation is sought of
the respondent's attribution of his disability to the accident of August 1987, they have a special
relevance. Although later reports do not have this particular significance they include the opinions of
specialists and from their perspective call for some attention.
Dr Farquahar, an orthopaedic surgeon, first saw the respondent on 14 March 1990 when he
was referred by Dr Morgan. Again there is consistency in the recorded account given by the
respondent and the origin of his disability is attributed to the August 1987 incident. Nothing on the face
of the symptoms recorded by Dr Farquahar suggests any particular exaggeration in the respondent's
account. At this stage x-rays were taken showing no abnormality but a CT scan showed "significant
bulge of lumbar sacral disc into the spinal canal". Dr Farquahar recorded his opinion that the
respondent had "discogenic pain attributable to lumbo sacral disc injury". Further examinations by Dr
Farquahar followed during 1990. The respondent at this time was totally incapacitated for work. It will
be recalled that the January 1990 tool box incident had supervened.
Degenerative changes described as minor were noted on examination by Dr Farquahar around
mid 1990. The respondent accepted that surgical intervention was necessary although it would involve
wearing a back brace, post-operatively, for about three months. An operation to effect fusion of the
spine was carried out on 6 August 1990 but subsequently it appeared that it had not succeeded. Dr Farquahar, in his report of April 1991, describes a rather depressing state of affairs for the respondent.
He was experiencing pain on wakening and then more extensive pain coming on after a few hours of
activity which he would attempt to keep at bay with Panadeine Forte. With what seems to have been
substantial difficulty the respondent managed to get back to full time work in April 1991. However, in
view of the failure of the fusion operation the respondent was, in the middle of the following year,
declared totally incapacitated once more.
Dr McPhee performed a further fusion operation on 5 September 1991. In his complaints to
Dr McPhee, the respondent continued to give an account of his situation which was consistent with his
earlier versions. He attributed his disability to the August 1987 "shackle pin" episode. Dr McPhee was
prepared to attribute the respondent's disabilities to lumbo sacral disc dislocation and he accepted that
its origin was to be found in the episode of August 1987.
Dr Askin, another orthopaedic surgeon, had examined the respondent in mid 1991. He
recommended the second fusion operation. In his report the respondent was shown as continuing to
attribute his back problem to the August 1987 episode.
The fact that there was not a great deal of objective evidence to support the extent of the
disabling symptoms described by the respondent made for some difficulties of assessment and it made
the respondent's case particularly dependent upon the general acceptability of his version. It made the
Judge's assessment of the respondent's credibility particularly important. No reason is shown to reject
the Judge's assessment.
The picture that has been accepted is of a progressively increasing incapacity overtaking the
respondent as he tried to continue in his demanding occupation sustaining himself by large doses of
analgesics and anti-inflammation medications which, for their part, brought on gastric complications.
The respondent's life was made additionally difficult by increasing bad headaches which he was
disposed to tie in with his back problem and he also had to contend with reactive depression. His
employment was finally terminated in May 1994.
The appellant's attribution of significance to the existence of some back pain prior to August
1987 and its attempts to source the respondent's subsequent disability in the October 1987 fall rather
than the earlier strain on handling the shackle pin is entitled to consideration, but these submissions
represent theories which should not be regarded as established on the probabilities by the medical
evidence. The fundamental proposition advanced by the appellant does not tie in with the description
that the respondent has given of relevant events and that is an account which the Judge has substantially
accepted.
The closeness of the October 1987 event to that in August 1987 made the appellant's attempts
to elevate the later event as the effective cause difficult to establish. Dr Askin's evidence suggested that
an immediate onset of the most disabling symptoms was not necessarily to be expected after an episode
like that of August 1987. He said that a prolapse of a disc can result in days or even weeks passing
before nerve root pain manifests itself and indeed that there is no maximum period which can be fixed
for the onset of pain from such a cause. It may be added that some variation in the descriptions given
by the respondent of his symptoms throughout distressing events experienced over a number of years
is not too unexpected and it may not be fair to label any such inconsistency as unacceptable. The point
is, however, that no inconsistency has emerged which is persuasive that the respondent's account should
be rejected. None of the points made by the appellant calls for a different conclusion to be substituted
for that reached by the trial Judge. The appellant's principal attack on the Judge's findings should be
rejected.
This decision now leaves for consideration the particular attacks made by the appellant on the
assessment of quantum.
It is necessary to repeat that in the assessments he has made the Judge has discounted because
of the potential for eventual problems which come from pre-existing weakness and degeneration in the
respondent's spine and because of his conclusion that the respondent stated his symptoms and
disabilities at a level which the Judge was not fully prepared to accept. This last discounting factor is
something the appellant relies on but since it has already been taken into account, it will not necessarily
help the appellant to demonstrate that the assessments are excessive.
The Judge assessed damages on the basis that the respondent's back disability is attributable
to the incident sued upon, qualifying this view in the following respects. Because there was evidence
that some degeneration in the respondent's spine was already established prior to 20 August 1987, the
Judge made his assessment on the basis that "at some later time" the respondent's symptoms would
probably have appeared. Further, the Judge, having listened to the plaintiff and attended to the
evidence, concluded that his symptoms should not be accepted as being as severe as he claimed.
Although heavy work was for the future beyond the plaintiff, there was a range of light work which
would be open to him. The respondent's headaches were, the Judge accepted, to some extent
aggravated by the August 1987 episode and its aftermath, but they should not prevent the respondent's
working and for the future should become less severe. Finally, the drugs which the respondent has
been taking in more recent times have now controlled the various gastric symptoms previously suffered,
and due probably to the anti-inflammatory drugs prescribed to deal with his back pain.
For pain and suffering and loss of amenities allocated both to the past and to the future, the Judge has assessed a total of $55,000. The respondent had, prior to August 1987, been a generally fit twenty-one year old apart from headaches which should be regarded as controllable. He has, as a
result of that episode, suffered and will continue to suffer great dislocation of his life and experience
considerable pain and suffering. These disabilities will, it can be expected, manifest themselves over a
long period into the future. It should not be concluded that the assessment for pain and suffering and
loss of amenities is excessive.
Past economic loss was assessed at $120,000. The Judge arrived at this figure by looking at
what the plaintiff actually earned since 20 August 1987, i.e. $158,088 and by taking that figure from
what Mr Williams, a similarly placed employee, earned from the same date up to 20 May 1995. Mr
Williams's earnings for that period were $284,185 making a difference of $126,096. The Judge then
had regard to the further sum that Williams would have earned in the period after May 1995 to trial.
Since judgment was delivered on 9 November 1995 the further period was some five and a half
months. Allowance for these additional earnings by Williams would have increased the "difference".
However, the Judge then allowed for the "vicissitudes of life" and arrived at $120,000 for past
economic loss. It is not possible to say that assessment at this level is unreasonable for past economic
loss. Had the respondent not been injured in August 1987 he might have earned more than Williams
just as he might have earned less. It was not obvious that the respondent should have accepted his fate
by managing to retrain himself to find employment in some lighter occupation prior to trial. After all, for
a substantial period the appellant was actually continuing to employ the respondent as a boiler maker.
The assessment for past economic loss is not excessive.
The Judge approached the assessment for future economic loss in a similar fashion, that is by
first adopting as a yardstick Williams's earning rate of $825 per week after tax. The respondent's
evidence was that he would have wished to work as a boiler maker for the rest of his working life, i.e. a further thirty years, so the approach adopted represented a reasonable starting point. The five per
cent table if applied to the Williams' figure for thirty years produces some $678,150. The Judge
assessed well under this figure for the respondent's future economic loss. By adopting $350,000 he
applied a substantial discount and he did so saying that he took into account the residual earning
capacity the respondent was left with, the usual vicissitudes and the "probable" onset of back pain from
the degeneration that he concluded existed prior to 20 August 1987. This last factor was left quite
general, it not being said or found when the onset would have manifested itself. The result was that it
was appropriate to allow only a discount of a general kind. The appellant complained that if the
respondent were, for the future, engaged in some lighter occupation of the kind suggested to and
adopted by his Honour, he would expect to earn at the rate of some $300 per week. There was
evidence which in a general way supported this. Compared with Williams's earnings this made a
difference of $525 per week amounting to some $431,550 over thirty years at five per cent it can be
calculated. In scaling down from this to $350,000 in his award under this head it could be suggested
that the Judge has made an additional discount of a further eighteen to nineteen per cent, and it is
asserted that this is an insufficient reduction. However, it can be said that the range of occupations in
which the respondent can now be trained for work is very much restricted beyond what would have
been available before his injury and how successfully he will manage after the necessary retraining is not
established. It is at least possible that the calculated total of earnings referred to by the appellant as
being potentially available to the respondent to age sixty in a restricted range of occupations has been
unduly inflated. In any event, it is not shown that the allowance of $350,000 is excessive. The
challenge to quantum should be rejected.
The appeal should be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 268 of 1995.
Brisbane
Before Macrossan C.J.
Pincus J.A.
Lee J.
[Gaudry v. Pacific Coal P/L]
BETWEEN:
DAVID WAYNE GAUDRY
(Plaintiff) Respondent
AND:
PACIFIC COAL PTY LIMITED
(Defendant) Appellant
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 20 December 1996
This is an appeal from an assessment of damages in an industrial accident case. The respondent plaintiff was awarded a sum in excess of $500,000 damages, principally on the basis of a finding that the appellant employer’s negligence had caused him to suffer a lumbo-sacral disc injury on 20 August 1987. The judge also found in substance that the disc injury was the cause of serious difficulty with the respondent’s back, subsequently experienced by the respondent.
Those two findings are the principal points of the appellant’s attack. Conceding that the findings depend in part upon the judge’s view on questions of credit, the appellant says there was inadequate evidence to support them. Both before and after the incident of 20 August 1987 complained of by the respondent, when he hurt his back at work (I shall call this "the tort incident"), the respondent consulted doctors about the condition of his back; these doctors included orthopaedic specialists and their findings are in general fully set out in their reports. It is necessary to consider the opinions of the orthopaedic specialists as to the likely cause of the respondent’s back trouble and particularly whether it is properly attributable to the tort incident. One reason for this is that the appellant was proved to have suffered another and, on the face of it, more serious back injury 2 months later, in October 1987.
But it is important to note at the outset that the judge’s finding to the effect that the tort incident was the cause of the trouble, which is set out at pp. 11 and 12 of his Honour’s reasons, is unaccompanied by any specific reference to orthopaedic opinion; it seems to me likely that the principal foundation of the judge’s conclusion was that his Honour accepted the respondent’s evidence to the effect that before the tort incident he had no major trouble with his back, but since that incident he has had continuous, although fluctuating, pain and disability.
This is the appellant’s principal difficulty, as Mr Williams Q.C. for the appellant recognised - that the judge has reached his conclusion on the basis of substantial acceptance of the respondent’s evidence that the whole trouble began with the tort incident and never stopped after it. What the appellant chiefly puts forward as justification for upsetting his Honour’s findings is the history of the respondent’s back condition as recorded by the doctors; that includes not only their own findings on examination, but the respondent’s account of his complaints, from time to time. In addition, the appellant relies on matters affecting the respondent’s credit, in particular statements made in forms filled out for worker’s compensation purposes.
It is necessary to deal with these points in some detail, but convenient to discuss first the opinions of the orthopaedists. It appears to me that if the primary judge’s view, that the tort incident was the substantial cause of the respondent’s back trouble, is supported by expert opinion, given by persons properly informed as to the history of the respondent, it would be a most unusual course to set his Honour’s finding aside; if that view is not so supported, but has been reached primarily on his Honour’s own view of the likely medical situation, then one might more readily disagree with it.
There were, on the evidence, four orthopaedic specialists involved with the respondent’s back condition, two of whom were called. Those who were not called were Drs. Martin and Farquhar. Dr Martin’s opinion emerges from the evidence of a general practitioner, Dr Morgan, who sent the respondent to Dr Martin in March 1988; Dr Martin reported no abnormal finding either clinically or radiologically and could not account for the respondent’s continuing symptoms. This report, although brief, appears to me of some assistance to the appellant, since it diminishes the likelihood that in the tort incident, which occurred some seven months before Dr Martin’s examination, serious damage was done to the respondent’s back.
The other orthopaedic specialist whose opinion was in evidence but was not called was Dr Farquhar, who had operated on the respondent, without success, in 1990. Dr Farquhar, who died before the trial, gave a number of reports. Mr Williams pointed out that Dr Farquhar’s opinion attributed the whole trouble, without reservation, to the tort incident. But he argued that the doctor plainly did not have a proper history of the condition; except for the "tool box incident" on 22 January 1990 mentioned below, his reports make no mention of any of the incidents affecting the respondent’s back, before and after the tort incident, which throw doubt upon the theory that all was attributable to that incident. I did not understand Mr Stewart, who appeared for the respondent, to contest this view, and in any event it seems to me clear that Dr Farquhar was not supplied with a proper history of the condition.
Of the two orthopaedic specialists called, Drs McPhee and Askin, only Dr McPhee had had much to do with the respondent. He first saw him after the action with which the Court is concerned was begun; the writ was issued on 17 July 1990. Dr McPhee’s report of 31 August 1991 recounted the history as given by the respondent; as I understand the report, the respondent attributed the back trouble to the tort incident. Dr McPhee said:
"I suspect he has had internal derangement of the lumbosacral disc which has been confirmed discographically. This would have resulted in the manner that he described." (emphasis added)
Dr McPhee operated on the respondent on 5 September 1991 and having seen him again in December 1991, gave a further opinion which appears to be more cautious than his initial view:
"I am not really in a position to comment on his history prior to August, 1991. I did not see him before his anterior fusion. Certainly the initial injury could have injured a disc. Subsequent episodes are expected and represent exacerbations of low back pain resulting from guarded activity on an already damaged disc."
In March 1992 Dr McPhee saw the respondent again, reported difficulty in assessing him and evinced considerable scepticism about his complaints, apparently based upon the fact that Dr McPhee had seen him running up the stairs "which leads me to think that his disability may not be quite as severe as he alleges".
In Dr McPhee’s last report, of March 1994, he expressed the view that the disablement stated or claimed could not be reconciled with the clinical findings. He said that the respondent had "normal spinal function without significant impairment". In oral evidence Dr McPhee was asked about the cause of the respondent’s current pain and answered that "the cause of back pain is multi-factorial. In many cases it is not due to one thing specifically, it may be due to a number of things". The doctor was asked about disc injury and said that he did not think a normal disc could be injured; his opinion was that ordinarily only a degenerate disc could be injured. Apart from making a rather sceptical comment, suggesting that back pain is caused by being paid for back pain, the doctor’s evidence threw no further direct light on the cause of the respondent’s back problem.
Lastly, Dr Askin, an orthopaedic surgeon, gave as his opinion in June 1991 that a CT scan showed an abnormal disc at the L5/S1 level. The doctor’s report went on:
" . . . however it does not really appear to impinge on the S1 nerve root and certainly he has no symptoms referable to this. He has had discography in the past and interestingly enough the L4/5 disc injection also reproduced his back pain, although it is morphologically normal."
The report expressed no view as to the connection of the tort incident with the then current problem, nor as to the cause of the abnormal disc. In his oral evidence, Dr Askin said in effect that if the respondent developed left sciatica within days of his August 1987 injury, that would indicate that his back pain was most likely related to injury to a lumbar disc; the report of the doctor who saw the respondent on the day after that injury, and subsequently, makes no mention of sciatic pain. Dr Askin thought that nerve root pain would ordinarily develop in days or weeks. He also expressed the view that injury of such severity as to damage a disc would be likely to be accompanied by muscle spasm; the significance of this is that the general practitioner who saw the respondent the day after the tort incident did not record any significant muscle spasm on that occasion, in contrast to his observation in relation to the later incident, that of 16 October 1987. Dr Askin seemed to emphasise that the spasm was indicative of a significant disc injury, being a protection against severe pain. He thought that if, after the tort incident, the respondent did not have muscle spasm and had a good range of movement, any disc injury which had occurred would have been a minor one. Putting the matter more generally, Dr Askin’s evidence did not support the theory that there was major injury to a disc, bringing about the respondent’s subsequent problems, at the time of the tort incident.
The causes of spinal trouble are no doubt often difficult to discern, but primarily, at least, one would expect the ascription of such causes to be a matter for expert opinion. In the present case, the respondent relies on a judicial finding to the effect that there was a serious lumbo- sacral disc injury at the time of the tort incident and (in effect) the whole subsequent trouble flowed essentially from that. Apart from the view of Dr Farquhar, which must I think be disregarded because of that doctor’s almost complete absence of knowledge of the relevant history, the closest approach one can find in the record to informed medical support for the judge’s finding is in Dr McPhee’s report of 23 December 1991, that the initial injury "could have injured a disc"; (Dr McPhee was it appears unaware of the October 1987 injury). It is unclear whether the judge relied upon that, but it seems probable that his Honour did not; in an elaborate treatment of the relevant evidence, that opinion of Dr McPhee is unmentioned.
It appears, as I have said, that the substantial basis of the judge’s conclusion was his acceptance of the plaintiff’s evidence tying the back trouble to the tort incident. An important weakness of this line of reasoning is that prior to the issue of the writ in these proceedings, on 17 July 1990, the respondent repeatedly related his back trouble to the later incident in October 1987, being one in respect of which no action was brought. An account of that incident and a comparison of it with the tort incident are to be found in the reasons of the primary judge. At p. 6 of those reasons, after referring to some difficulties with his back which the respondent suffered in the previous year, 1986, the judge concluded that the plaintiff had no serious trouble with his back before 20 August 1987; that appears to me to be correct, with the reservation that on 23 October 1986, when the respondent complained to a general practitioner of back pain, the matter was regarded seriously enough for him to be sent for an X-ray. To return to the reasons:
"At 10.30 a.m. on 16 October 1987 the plaintiff slipped on wet concrete at work. He fell, breaking his fall with his arm. He felt pain and stopped work at 11.30 a.m. and was taken to Dr Robinson. The pain this time was much worse than that on 20 August and Dr Robinson found him to be much more seriously disabled: he had muscle spasms, and methadone was prescribed. The plaintiff was off work as a result of this incident from 16 to 26 October 1987, from 11 to 21 March 1988, and 6 to 9 December 1988."
It is important to note that after the tort incident the respondent returned to work on
full duties and that to combat the pain then encountered ordinary analgesics were used. The
pain caused by the later incident, that of 16 October 1987, required more drastic measures;
methadone was administered, that being a "narcotic analgesic" reserved for cases of very bad
pain. I reiterate that the opinion of Dr Farquhar, referred to above, ascribing the whole
problem to the tort incident was given in ignorance of the later and, on the face of it, more
serious injury in October 1987. Further, Dr Farquhar makes no mention of the back problems
the respondent had encountered in 1986.
According to the respondent’s evidence, having returned to work after the October 1987 incident, he continued to suffer pain which gradually seemed to get worse. But, although in the year before the tort incident he had, as has been pointed out above, complained to a general practitioner on a number of occasions about back pain, there is a curious dearth of evidence of such complaints from October 1987 until January 1990 when a third, apparently serious, back incident occurred. Dr Morgan gave evidence that he saw the respondent on a number of occasions in 1988, but two only of those consultations related to a back problem. It should be noted, in the respondent’s favour, that in March 1988 the respondent told Dr Morgan that in August 1987 he had injured his back; the report makes no mention of the October 1987 incident. But the force of that is diminished when one notes that the same report says methadone had been given for the pain; as is noted above, that was for the October 1987 incident. Dr Robinson saw the respondent twice in 1988 and again in June 1989, recording no back complaint. Mr Williams relied upon three claims for worker’s compensation which were in evidence and which were inconsistent with the case the respondent put forward at trial. Two of them were made in 1988 and one in January 1990. It is enough to mention the content of the claim made on 21 March 1988; the others were in similar form. The claim described the nature of the injury as "low back strain" and in response to the question, "When did the injury occur?" the date given was "16/10/87" and the same date was given in answer to the question, "When was injury reported to person in authority?". In answer to the question, "What were you actually doing when the injury was sustained?", the answer given was "This is a continuous claim for a back injury which occurred in Oct 87". These documents, which the respondent admitted having completed himself, would seem, if not explained, to be destructive of his case that it was the tort incident which originated the back trouble, rather than the incident of October 1987. In explanation the respondent gave a rather discursive answer in evidence, including the statement that he "didn’t know it was going to be so important one day" and concluding with the assertion "I just referred to the last time I was off work with my back".
The latter statement is highly implausible, since as I have pointed out, on three separate occasions the injury in question was identified as having occurred in October 1987; obviously, on each occasion the respondent took a period off work. The March 1988 claim shows that he was off work for 10 days about that time. I have mentioned above that the primary judge had doubts about the reliability of the respondent’s evidence; we were taken to some inconsistencies which contributed to that. Their relevance is that, unless the primary judge was prepared to accept the explanation the respondent gave for these repeated statements as to the date of the injury, there would seem to have been no justification for accepting the case that it was the tort incident rather than (for example) that of October 1987 which was the source of the trouble. The only specific reason given by the respondent, that he had intended to refer each time to the date of the last time he was off work, could not possibly be accepted and there is no reasonable basis, on the evidence, for declining to give weight to these written statements.
Their importance is that they were made before the action was begun, in July 1990. After the action was begun, it must have become clear to the respondent that he could recover nothing unless the tort incident was the cause, or at least a major cause, of what were claimed to be his subsequent back problems. It is unclear what was the primary judge’s view of the respondent’s explanation of his having repeatedly, prior to institution of the action, ascribed his back condition to an incident other than that which is complained of in the action. An explanation which is as reasonable as any other is surely that it was the October 1987 incident which was then thought, by him, to be the real origin of his back problem; that is consistent with the evidence of Dr Robinson as to the comparative severity of the symptoms on the two occasions, in August and October 1987.
The passage in the reasons in which his Honour sets out his ultimate conclusion on the issues being discussed follows immediately upon references to the worker’s compensation claims I have mentioned. It is as follows:
"I nonetheless conclude that the plaintiff suffered a lumbo-sacral disc injury on 20 August 1987. Although he was able to return to work on 7 September 1987 I accept his evidence that the injury continued to cause pain, including some leg pain, until he slipped on 16 October 1987. The fact that the plaintiff’s back was still painful - and therefore, I conclude, in a damaged state - on 16 October and the proximity of the two incidents are in my view decisive considerations. There is no reason to conclude that his fall was caused by any negligence on his part, and the pain and discomfort which followed the fall were I find caused by the effect of the fall on his damaged disc: but for the injury of August 1987 there would have been no serious consequences from the fall."
It is necessary to make comment upon some aspects of this. The significance of the reference to leg pain is that there was some orthopaedic evidence to the effect that this would be consistent with a disc injury; but as Mr Williams pointed out, there is no mention of leg pain in the report of Dr Robinson relating to the tort incident, or in the same doctor’s report relating to the incident of October 1987, or the report of Dr Morgan of May 1988; the closest approach to a complaint of such pain is that Dr Morgan says there was mention of pins and needles at the back of the respondent’s thighs. As I have already explained, the orthopaedic specialist, Dr Martin, reported no abnormal finding either clinically or radiologically, about that time.
Next, it is not easy to understand why "the proximity of the two incidents" - that of August and that of October - should favour the conclusion that it was the former rather than the latter which was important in causing any subsequent back problems. Then it cannot, with respect, matter that the October 1987 incident was caused without negligence on the part of the respondent. Nor is there, so far as I can see, any evidence on which to base the essentially medical conclusion that but for the injury of August 1987 there would have been no serious consequences from the October 1987 fall. One of the only pieces of medical evidence directly dealing with this point is that of the doctor (Dr J S Robinson) who saw the respondent shortly after both these incidents. He was unable to say whether the second was an aggravation of the first or totally new. Dr Robinson said, accurately as it seems to me: "I don’t think anyone is in a position to state that one way or the other."
To return to the basis of the judge’s treatment of the case, that there was serious damage to a particular disc in the respondent’s spine in August 1987, there is in my respectful opinion no medical evidence reasonably capable of supporting that. No disc abnormality was detected until 1990, by which time the respondent had suffered what was according to his version of events a third significant back incident, when lifting a tool box on 22 January 1990. The only specific discussion, in evidence, of the likelihood of a serious disc injury at the time of the tort incident appears to be in the evidence of Dr Askin (called on behalf of the respondent). The doctor agreed with the proposition that any disc injury at that time would have been minor. He added later, in re-examination, that vulnerability to further incident, after such a minor injury, "would relate probably more to muscle weakness and inactivity associated with . . . the healing process rather than the disc itself". As the respondent was back on normal duties, working as a boilermaker, between the two incidents, there is no reason to think that inactivity or muscle weakness contributed to the incident of October 1987.
It is my respectful opinion that on the orthopaedic evidence it is possible, but rather unlikely, that a disc injury occurred in August 1987. If one did, then it is unlikely that it caused or contributed to the apparently more serious injury in October 1987. I have noted that Dr McPhee, who had treated the respondent and seen him on a number of occasions, said that there was no correlation between the amount of disc damage and the pain suffered; and yet it appears that the major factor in his Honour’s finding that there was significant disc damage in August 1987 was the complaint of subsequent pain.
It is my conclusion that the evidence did not adequately support the conclusion his Honour reached, which was a speculative one. The respondent did not establish the proposition on which his case was based, that his long period of back trouble was substantially due to significant disc injury in August 1987. There was no proper basis for a conclusion that any injury suffered in August 1987 caused other than temporary disablement.
Other Issues
The primary judge was invited to find that severe headaches of which the respondent complained were also caused by the tort incident. His Honour’s conclusion on this aspect partially accepted the respondent’s case. His Honour found, contrary to the respondent’s evidence, that he had suffered severe headaches before the tort incident and that headaches of which he complained in 1988 had not been shown to be related to his back injury. Then, his Honour said, severe headaches became more frequent after the unsuccessful operation performed by Dr Farquhar, in August 1990. The judge concluded that the respondent suffered from migraine, partly inherited, but aggravated by "tension caused after the first operation by the back injury and its consequences".
The unsuccessful operation conducted by Dr Farquhar in 1990 appears to be an essential link in this chain of reasoning; the judge was not prepared to allow anything for headaches which occurred prior to that date. Since in my respectful opinion it was not established that whatever was thought to have brought about the necessity for the 1990 operation was caused by the tort incident, it follows that nothing can be recovered for the headaches.
In truth, the judge was invited by the respondent to accept two rather similar propositions, with respect to the tort incident: first, that since but not before that incident the respondent had suffered substantially from bad headaches and, secondly, that since but not before that incident the respondent had suffered continually from serious lower back pain. The former has been rejected despite its being earnestly sworn to by the respondent; in my respectful opinion the objective evidence supporting a rejection of the respondent’s account of his back pain was at least as strong as that relating to the headaches. Why one was accepted and not the other does not clearly appear. It is in my view particularly striking that in 1989, the year before the third incident I have discussed, the respondent so far as the evidence shows had no medical consultation relating to his back, took no time off work on that account, and had no painkillers dispensed other than on three occasions, in June and July 1989 (Dr McPhee reported that he was told of a fall in 1989, but this can only be a mistaken reference to the fall in October 1987.) The respondent married at the end of 1989, at which time his wife was of opinion that he was a healthy man. These objective facts are difficult to reconcile with the theory that the respondent was throughout that year, while doing heavy work as a boilermaker, suffering from continuous and increasing pain in the lower back.
Conclusion
The primary judge has treated the case as one in which the tort incident caused permanent damage to a disc in the respondent’s back, bringing about, in the end, catastrophic consequences. In my respectful opinion the evidence did not show that a disc was damaged or that any other injury was suffered than one making it necessary or desirable that the respondent have a fortnight away from work. It was contended for the appellant that the result is that no damages should be awarded, since the worker’s compensation paid in respect of the tort incident would satisfy any claim in negligence the respondent has. It is difficult to know whether to accept this or rather to award some relatively small sum. On the whole, however, I think the submission should be accepted.
I would allow the appeal with costs, set aside the orders made by the primary judge and in lieu order that the action be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 268 of 1995
Brisbane
| Before | Macrossan CJ Pincus JA Lee J |
[Gaudry v Pacific Coal]
BETWEEN:
DAVID WAYNE GAUDRY
(Plaintiff) Respondent
AND:
PACIFIC COAL PTY LIMITED
(Defendant) Appellant
REASONS FOR JUDGMENT - LEE J
Judgment delivered 20 December 1996
I have read the reasons of the Chief Justice and Pincus JA where the circumstances are
canvassed. I propose to refer to only a few aspects.
Experience has shown that medical science has not yet been able to discover everything about
the causes of back pain. The back, including the spine and all of its complexities, is an area of the body
which causes much difficulty in personal injury litigation. See e.g. Adsett v Noosa Nursing Homes Pty
Ltd (C.A. 223 of 1995, 6 December 1996 per Pincus JA). Traditional physical examinations and x- rays are commonly unreliable in detecting objective signs capable of explaining an alleged back injury
and pain said to be suffered as a consequence. Even more sophisticated methods such as CAT scans
and magnetic resonance imaging (MRI) have at times been known to reveal no ascertainable or at least
probable cause of alleged back pain, e.g. a pinched nerve is often difficult to detect; a not uncommon
diagnosis is that a plaintiff has suffered a soft tissue injury or ligamentous or muscular strain which does
not show up by traditional methods.
Whilst the courts must be ever vigilant in detecting fraudulent or mistaken or exaggerated claims,
or claims based on a pre-existing condition or other circumstances not related to the defendant's alleged
tortious act, experience has also shown that genuine back pain can exist in spite of a lack of supporting
medical evidence, and that pain and common symptoms do not always emerge immediately following
an injury involving the back, as at least one orthopaedic surgeon said in this case. For these reasons,
the credibility of a plaintiff and supporting witnesses (if any) often becomes critical, as in this case.
Nevertheless, medical evidence can be of considerable assistance to a court in its task of
attempting to resolve disputed issues in personal injury litigation. Such evidence is usually advanced by
a plaintiff and countered by other evidence by a defendant to either support, or negative, the existence
of genuine back pain, or pain said to have been caused by a tortious act for which the defendant is
responsible. The usual methodology is to look for ascertainable signs of injury, or the absence thereof
as the case may be. There is no suggestion of "psychogenic" pain in this case.
Early x-rays detected no observable cause of the respondent's complaints of back pain
following the incident on 20 August 1987 which he alleges has caused back pain since then and his
current back condition. It was not until 1990 that a CAT scan detected a significant bulge of the lumbar
sacral disc into the spinal canal, in the L5/S1 portion of his back which, on the medical evidence, is
capable of explaining his symptoms.
The critical issue is whether, on the balance of probabilities, that condition was caused by the
incident on 20 August 1987 when he and another employee were required to physically lift a very heavy
shackle pin weighing about 75kgs. During that operation, the respondent said he felt a whipping and
tearing pain in his lower back, in the area consistent with the L5/S1 portion of his spine. The respondent
said in evidence that he suffered back pain thereafter and some pain to his leg. The other judgments
refer in some detail to medical treatment he received and his absences from work.
This case was complicated by the fact that on 16 October 1987, the respondent suffered a fall
on wet concrete at work but said that he broke the fall with his arm. Nevertheless he said he again
experienced significant back pain. That incident is not the subject of a claim as such against the
appellant. He also suffered a third injury at work by lifting a bag of tools on 21 January 1990. That
incident also is not the subject of a claim as such against the appellant. The respondent's case was
presented on the basis that the injury which caused the damage was that which occurred on 20 August
1987, with the latter two incidents merely aggravating his already damaged back.
It is not without interest to note that the respondent did not base his cause of action on the work related fall on wet concrete on 16 October 1987, which the appellant contended led to his disabilities, rather than the incident on 20 August 1987. That fall was apparently the subject of a claim by the
respondent for workers' compensation. The learned trial judge said that there was no reason to
conclude that the fall on 16 October 1987 was caused by any negligence on the part of the respondent.
Whether there was any negligence on that occasion on the part of the appellant does not emerge but
in any event, the plaintiff, whether on advice or otherwise, has sued on the basis that his back condition
originated from the incident on 20 August 1987.
It was submitted for the appellant that whilst a medical consultation on 27 August 1987 revealed
tenderness in the sacroiliac region, no significant muscle spasm was detected, and that the respondent
could move freely but had pain when he did move. Muscle spasm, it was said, was a common
symptom of a significant back injury. Significant muscle spasm was detected after the fall on 16
October 1987. It was also said that the absence of recorded complaints to any medical practitioner
of early sciatic pain after the incident on 20 August 1987 (i.e. any radiation of pain into his buttocks or
legs), was an important factor which indicated that there was no significant injury to the plaintiff's back
by the lifting incident on 20 August 1987.
The learned trial judge concluded that the respondent suffered a lumbo-sacral disc injury on 20
August 1987. In so determining, his Honour relied principally upon the evidence of the respondent that
he continued to have back pain between the incident on the 20 August 1987 and 16 October 1987, and
also that during that time he suffered some leg pain which the orthopaedic evidence showed was
indicative of a disc lesion.
It was submitted by the appellant that there were a number of prior inconsistent statements
made by the respondent, in addition to an absence of timely complaints to various medical practitioners
who treated him, of any radiating buttock and leg pain. It was said that symptoms of such pain would
be likely to have been elicited on a medical examination if they were in fact present. The first recorded
report of any discomfort in his legs was the statement to Dr Morgan on 9 March 1988that he had pins
and needles in the backs of his thighs.
The appellant relied heavily upon what were said to be prior inconsistent statements by the
respondent in various applications he made for workers' compensation. In his application dated
21 March 1988, he said: "This is a continuous claim for a back injury which occurred in October 1987",
being the fall on the wet concrete at work. He also said in later applications that his back trouble was
an aggravation of a previous injury suffered in October 1987. These and other matters were the subject
of a concerted attack on the respondent's credit at the trial and on appeal. It was said that these
factors, along with other alleged inconsistencies, should have persuaded the trial judge to conclude that
the respondent's evidence of pain since 20 August 1987 should not be accepted and that that incident
was not a cause of his current symptomatology.
In evidence, the respondent said that in those applications, he simply referred to the last
occasion when he was off work with his back. The learned trial judge observed the respondent giving
evidence. He was a young man aged about 21 years at the time. He had left school at 15 years of age.
In assessing overall credibility, the trial judge was obviously entitled to form an impression as to the
educational and other background of the respondent, his intelligence, whether he may have been mistaken in relating his back pain to the incident in October 1987, or even as to the possibly that the
respondent did not consider that precision was essential in his subsequent applications for compensation
long after the relevant event, the subject of the action.
Whatever may have been the respondent's lay belief at the time he made those applications,
even if any such belief could be regarded as reliable or relevant, his Honour was not bound to hold that
the respondent's statements in those applications provided evidence against the respondent's claim
based on the incident on 20 August 1987. As already indicated, this was not his belief or that of his
advisers when he subsequently commenced the action in July 1990.
Emphasis was also placed by the appellant upon the fact that had there been early complaints
of sciatic pain radiating to his buttocks and legs, this would have given support to the respondent's
evidence that the incident on 20 August 1987 in fact was the cause of his back condition. As already
mentioned, the respondent said he suffered some leg pain right from the time of the relevant incident on
20 August 1987. In the result, this aspect also depended upon his Honour's impressions of the
respondent and findings as to credit, including his view as to whether the respondent was a person who
would necessarily have mentioned and repeated all symptoms on every occasion when he was medically
treated or examined, or as to whether the respondent played down his symptoms.
Experience has shown that some persons display stoicism or do not wish to give an impression
of paranoia, or simply do not properly communicate or respond to questions asked assuming that they
fully understand the nature of the question and the type of symptoms being investigated. The early report from the treating doctor did not record that there was a denial of pain radiating from the back
to the buttocks and legs during the period between 20 August 1987 and 16 October 1987. It was
silent as to the presence of any such pain. In 1988 the respondent told Dr Morgan he had pins and
needles in the backs of his thighs. Dr Farquhar's report of 29 March 1990 (he first saw the respondent
on 22 March 1990) records "that there has been no radiation of pain into his legs", yet Dr McPhee who
first saw the respondent on 15 August 1991, records that after the fusion performed by Dr Farquhar
12 months previously, "this rid him of his leg pain which he first noted in 1989".
But even if the evidence of an observed lack of timely and significant muscle spasm as well as
the learned trial judge's impression of the respondent, and the absence of timely recorded complaints
of sciatic pain did not warrant the conclusion that the respondent in fact suffered leg pain soon after 20
August 1987, the evidence as a whole does not show that these factors were necessarily conclusive
against the respondent's allegation that his back was relevantly injured on 20 August 1987. There was
medical evidence capable of supporting the respondent's contention that absence of some timely usual
symptoms did not mean that his back was not relevantly injured on 20 August 1987.
It was not necessary for the learned trial judge to accept all of the respondent's evidence. He
was entitled to accept part, and reject other parts as any tribunal of fact is entitled to do. On essential
respects, his Honour accepted the respondent's explanation and also his evidence of continuing back
and leg pain since August 1987. His Honour was obviously in a position of advantage which is not
shared by the Court of Appeal when it comes to questions of credibility.
It is also timely to re-state the principle that it is not the function of a court of law to resolve
questions of medical or indeed any other science. In this regard, I can do no more than refer to a
passage in the judgment of Connolly J in Obstoj v. Van Der Loos (W. 203 of 1985, 13 April 1987,
unreported) with which I respectfully agree. In that case it was accepted at the trial that the plaintiff was
suffering from temporal lobe epilepsy but what was in dispute was whether it had been caused by the
negligence of the defendant in the motor vehicle accident. The plaintiff immediately felt dazed. She was
not rendered unconscious. She had been on the way to a meeting and after the accident was taken by
a taxi to that destination. It was not until a week or two after the accident that she felt dizzy and lost
consciousness. One doctor said that he could not offer any other explanation for her subsequent
development of epilepsy. A strong body of medical opinion however was to the contrary. His Honour
said:
"The contrary view which, it is right to say, would seem to be held by a majority of neurologists, is that head injuries which lead to epilepsy are usually associated with a prolonged period of loss of consciousness with intra-cerebral haemorrhaging and neurological deficit. I take that statement from the evidence of Dr Atkinson, who has said that he could not recall, in 20 years of neuro-surgical practice, seeing a patient who had had brain damage from a whiplash injury.
It is apparent that to many, particularly in the medical profession, this case is thought to involve questions of major importance in neurology. It is understandable that it should be so seen but it should be emphasised that it is no function of a court of law to resolve questions of medical, or indeed any other science. The present state of medical art and understanding is of great assistance to a court in attempting to resolve a question such as the central issue in this action but, at the end of the day, many other factors enter into it. Even if the proposition so forthrightly stated by Dr Atkinson is a sound general statement, and, on the evidence I have heard, I have no doubt that it is, there are obviously other factors which, in a given case, may lead to the conclusion that the case is exceptional. The function of a court of law in a situation such as this is to determine whether, for whatever reason, it is more probable than not that there is a causal relationship between the accident and the plaintiff's post-accident condition."
That principle is equally apposite in this case and depends upon all of the evidence which the
learned trial judge carefully considered. I generally agree with the approach adopted by the Chief
Justice and his conclusions in this respect.
A second attack was made on the quantum of the trial judge's award of damages. Whilst it may
be said that the overall assessment appeared to be somewhat high, I am not, for reasons stated by the
Chief Justice, prepared to conclude that the award should be interfered with by this Court.
I accordingly agree with the order proposed by the Chief Justice.
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