Gold Coast Hospitals Board v Mason

[1994] QCA 80

THE COURT OF APPEAL	[1994] QCA 080
SUPREME COURT OF QUEENSLAND

Appeal No. 180 of 1993

Brisbane

Before McPherson J.A.
Mackenzie J.
Kiefel J.

[Gold Coast Hospitals Board v. Mason]

BETWEEN

THE GOLD COAST HOSPITALS BOARD

(Defendant) Appellant

v.

CHERYL VERONICA MASON

(Plaintiff) Respondent

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered the Sixth day of April 1994

On 29 March 1988 the plaintiff sustained an injury to her right knee while pushing a trolley in the course of her employment at the defendant's hospital. She suffered a partial tear of the right lateral meniscus which surgical treatment has not been successful in correcting. In an action in the District Court the trial judge found that the defendant had been negligent and gave judgment for the plaintiff for $190,688.55. The defendant now appeals, asking for a new trial on the issues of liability and quantum, or a reduction in the damages awarded.

As regards liability, the only point taken is evidentiary or procedural. It is that at the trial the judge refused to allow a witness called by the defendant to refresh her memory from a document that bore her initials. The witness in question was a Ms. Shelley, and the document was an entry dated 29.3.1988 in the hospital's accident book. It was a log (ex. 3) in which the domestic staff, of whom the plaintiff was one, were required to record injuries sustained at work. Ms. Shelley was supervisor of the domestic staff on 29 March 1988, and her initials appear against the entry bearing that date, which is in the plaintiff's handwriting, reading "torn ligaments in right knee". Exhibit 3 was already in evidence when Ms. Shelley came to testify, and Ms. Holmes as counsel for the defendant was in the process of asking her to look at that entry when she was stopped by the judge.

On the face of it there does not seem to be any reason in law why the witness should not have been permitted to see ex. 3 before going on with her evidence. The point was, however, that ex. 3 contained an earlier entry dated 20.6.1987; it was not initialled by Ms. Shelley because it was before she became supervisor. It recorded the plaintiff as having "hurt leg pulling trolleys". In the course of cross-examining the plaintiff and fellow workers who testified on her behalf some questions were directed to that entry or to the occasion that gave rise to it. From this it became evident that the witnesses could not accurately recall whether they had seen the plaintiff with a bandaged leg before or only after 29.3.1988.

His Honour evidently wished to be in a position to assess the accuracy of Ms. Shelley's recollection of the true sequence of these two events without her first being primed by seeing their dates in ex. 3. In view of a tendency by counsel to lead the witness, and of Ms. Shelley's apparent confusion about the sequence of events in giving her evidence without prior assistance from ex. 3, it may be thought that as matters turned out the memory test to which his Honour submitted Ms. Shelley was amply justified.

In cross-examination she candidly acknowledged that she remembered the events but not dates on which they had happened, and that she was unable to "put them into time spans at all".

This seems clearly to have been what his Honour was referring to when, in rejecting the suggestion that the plaintiff had sustained her knee injury before 29.3.1988, he said in his reasons for judgment that the only evidence given to support the suggestion was that of Ms. Shelley; and that her evidence "was tainted by her admission that she was unable accurately to locate in time the matters she had deposed to". The word "tainted" in this context plainly means "affected". In what happened in this respect at the trial, his Honour did no more than require, for his own edification as the tribunal of fact, that Ms. Shelley's recollection of sequence be tested initially under the same conditions as those applying to the other witnesses who had testified on the matter. Had he not required that to be done, it might have been more difficult for him to tell whether Ms. Shelley did remember whether the earlier incident of 20.6.1987 took place first, or whether she was not simply reconstructing the sequence of events using the entries in the log as her guide for that purpose.

In any event, the course dictated by his Honour for testing the memory of the witness did not result in the rejection of any admissible evidence at the trial. At most it served only to affect the stage at which a particular witness looked at the entries in the accident book. Even an erroneous ruling about the stage at which evidence is admitted does not found the right to a new trial. Doe d.Nicoll v. Bower (1851) 16 Q.B. 805; 117 E.R. 1090.

Likewise, the erroneous rejection of a witness may be cured by subsequently admitting his testimony : Hilliard on New Trials, 2nd ed., at 48. Lush says this is so unless, as he adds, "actual injustice has followed" : Lush's Common Law Practice, 2nd ed., at 482. Far from that being the case here, injustice might have been done to the plaintiff had Ms. Shelley been allowed to convey an impression, contrary to the fact, that she was able to recall the true sequence of events. The defendant is not entitled to a new trial on this basis.

That is sufficient to dispose of the appeal against the decision on liability based on grounds 1 and 2 of the notice of appeal. As regards quantum, various criticisms were made of his Honour's findings and conclusions. Most of them can be readily disposed of. The point was made that the trial judge had, on the question whether the plaintiff was suffering post-traumatic osteoarthritis of the lateral compartment of her right knee, wrongly preferred the opinion of Dr Dodd and Dr Watson to that of Dr Maguire. The latter had reported on 11 December 1990 (ex. 17) and 24 February 1982 (ex. 18) that there was not then any evidence of osteoarthritic change.

In his reasons the trial judge said he could not understand why a radiologically observable condition could be apparent to the first two specialists but not to Dr Maguire. It is not to be assumed that this observation necessarily implies a criticism of Dr Maguire; but, in any event, his Honour went on to prefer Dr Dodd's opinion and prognosis as more likely to be correct. Dr Dodd, it may be noted, gave evidence at the trial. Dr Maguire did not, although his two reports were admitted by consent at the trial as also was the report of Dr Watson, who by then was dead. It is, we think, probably not correct to infer from Dr Watson's report that he gave his opinion without viewing the bone scan or the x-rays himself; but, quite apart from that, the radiological evidence was only one factor in the formation of expert opinion on the subject. As Dr Dodd stressed in his evidence at the trial, it was his clinical diagnosis that the plaintiff's knee was suffering from arthritic changes. His Honour was entitled to accept and act upon that evidence in preference to Dr Maguire's reports. He was the judge of the relative weight to be given to those reports and the oral testimony of Dr Dodd.

The remaining points argued on appeal all concerned the trial judge's assessment of the plaintiff's earning capacity and his award of $107,000 to compensate for her loss on that account. The finding that she was no longer able to engage in heavy work similar to what she had been doing at the time of the accident was plainly justified on the evidence, and no real attempt to question it was mounted on appeal. The primary challenge was directed at the assessment of the plaintiff's residual working capacity and in particular the finding that she was unfit for re-training in clerical areas.

By all accounts the plaintiff had an extremely disadvantaged childhood in which she left school at the age of 14 years at grade 7 because of her inability to cope with school work. After that she worked at waitressing, in a factory, and at tasks of a "domestic" nature similar to what she was doing at the hospital. There is no doubt that she enjoyed the work there and would, as his Honour found, probably have remained in it until age 60. As she was 47 years old at the trial, the issue turned on her employability over the next 13 years, which in turn may to some extent have depended on her literacy level.

Dr Chittenden, who is a psychiatrist, interviewed the plaintiff on three occasions in mid-1992. It is apparent that, like others who have met the plaintiff, Dr Chittenden was impressed by her demonstrated capacity for hard work and her ability to survive misfortunes of which there have been not a few in her life. However, on the occasion of those visits, Dr Chittenden found the plaintiff to be extremely depressed owing, as she thought, both to the obvious physical and financial adversity she was experiencing and her profound loss of self-esteem and self-confidence. The psychiatrist attributed some of the responsibility for that condition to "inconsiderate handling" of her case by the C.E.S., which had thrust her into clerical duties without recognising what Dr Chittenden considered to be her unsuitability for such tasks.

The learned trial judge accepted Dr Chittenden's opinion that the plaintiff's psychological disabilities were causally related to her physical injury. The appellant does not take issue with that finding as such, but rather with his Honour's acceptance of any of Dr Chittenden's conclusions in the light of what is said to be the false premise on which they are based. What she said in her evidence at the trial was that the plaintiff was both "illiterate" and "innumerate". It is plain that this assessment of her is not correct. The record contains examples of statements admittedly handwritten by the plaintiff in 1988 and 1989. The spelling in the statements is by no means perfect, but it would be a serious mistake to describe her as illiterate. Helen Coles, an occupational therapist, who tested the plaintiff's reading ability, thought she had a "limited level of literacy", which made her difficult to place in clerical work. It may be that the plaintiff is a slow reader and writer, but in fact no formal testing was done in respect of her.

The result is to raise doubts about the reliability of some at least of what Dr Chittenden said in her report and her oral testimony at trial. While expressly recognising that there were "glaring errors and discrepancies in the history she [Dr Chittenden] obtained from the plaintiff particularly as to her employment record and her level of education", his Honour nevertheless accepted: (1) that there was no doubt that the plaintiff was a keen and industrious worker; (2) that but for the injury she would have continued to enjoy her employment with the defendant; and (3) that her level of literacy and numeracy is low, "so that she is really unfit for re-training in clerical areas". Each of these conclusions is supported by evidence apart from anything that was said by Dr Chittenden, and his Honour was therefore entitled to find each of those matters as a fact.

The real contest on appeal centred on the plaintiff's ability to discharge the duties of her present employment and the likelihood of her retaining it in future. Since about December 1992 she has been working at the Nerang R.S.L. Club as a receptionist. She commenced her employment there with the assistance of the subsidy provided by Jobstart, which however came to an end after the first six months. She is now classified as a permanent part-time employee, which under the industrial award means she must be given at least 20 hours of work each week spread over four or more days. She was in fact working more than that at the time of trial.

Mr Cahill, who is the secretary-manager of the club, said that he had no intention of terminating the plaintiff's employment at the club or of reducing the hours she was working, and that, of the three receptionists working there, there was someone else who would be first in line for retrenchment if that question arose. That is cogent evidence in support of the defendant's claim that the plaintiff is still employable; but its force is qualified by other evidence about how she obtained the job and what she is doing there.

The office administrator of the Nerang club is Ms. Linda Richmond. She met the plaintiff when they were both undertaking a TAFE course (in which the plaintiff completed only 18 out of 35 or 36 of the basic subjects), with which Ms. Richmond used to help the plaintiff by tutoring her after classes. It was Ms. Richmond who helped the plaintiff obtain her employment with the club. She advised her to apply for the position; arranged the interview; and had a part in selecting her. The plaintiff's knee disability was not disclosed to Mr Cahill, although it does to some extent impede her in discharging her duties as a receptionist. She has to sit with her leg extended in order to rest it, and is not assisted in caring for it by frequently having to stand up and sit down again.

The duties of the position involve answering the telephone and dealing with other inquiries; checking the membership of patrons and the standard of their dress; as well as "basic clerical work" including basic typing, filing and bookkeeping. Ms. Richmond said she never gave the plaintiff any bookkeeping work to do, because she was not capable of it, and that she proofread the plaintiff's typing work for grammar and spelling errors before it went on to Mr Cahill. Ms. Richmond's assessment was that, lacking a clerical background, the plaintiff was "getting there" but it was taking a long time. She thought the plaintiff lacked confidence in herself in relation to her work; she was too timid to use the P.A. system; and not capable of handling inebriated patrons of the club. For this reason Ms. Richmond said she "cushioned" her by arranging her shifts so that she did not work at night, which was when such problems tended to arise.

The trial judge's task was to assess the risk that the plaintiff would lose her present employment without being able to find an alternative. He accepted that in her work the plaintiff was "still protected quite significantly by Ms. Richmond". He also formed the conclusion on the basis of what was said by her and other witnesses that the plaintiff's hold on her present employment was "somewhat tenuous, and in particular ... entirely dependent upon the continued employment and goodwill of Ms. Richmond". It is difficult to disagree with that assessment, which in accepting Ms. Richmond's evidence the judge was entitled to make, and which was not directly challenged before us. The award of $107,000 for future economic loss must therefore be considered against a background in which, if the plaintiff were to lose her present employment, she would, as Ms. Cole said and his Honour found, be disadvantaged in seeking alternative work in competition with other able-bodied and equally qualified persons.

The judge went on to find that the plaintiff's capacity to earn income in the future was severely restricted and that it ought to be assessed on a two-fold basis:

(a)  a reduction in earning capacity between pre-accident and post-accident employment amounting to $88.44 per week; and

(b)  some "global compensation" for the contingency that if she lost her job with the club she would be almost unemployable for the rest of her working life.

As regards (a), the trial judge mentioned in his reasons that, even if the plaintiff was secure in her present employment, her future economic loss for the ensuing 10 years alone (not 13 years to age 60) from the date of trial would be of the order of $37,000. Equally, if she had been rendered totally unemployable from the date of trial her future economic loss to age 60 would have been over $200,000 at present value, making no allowance for superannuation, which would add another $8,000 or so.

The result is that in arriving at his award for this category of loss the learned judge effectively discounted by some 50% the maximum loss potentially accruing from her injury. When account is taken of the fact that the only fields of employment in which she had ever worked were closed off by her injury, it was not unreasonable to cater for the contingency that she might at any time in future become totally unemployable by using a factor of 50%: cf. Malec v. J.C. Hutton Pty Ltd (1990) 169 C.L.R. 638, 640-641.

The award for future economic loss may adopt a somewhat gloomy view of the plaintiff's future prospects, but it is not one with which this Court should interfere.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 180 of 1993

Brisbane
[Gold Coast Hospitals Board v. Mason]

BETWEEN

THE GOLD COAST HOSPITALS BOARD

(Defendant) Appellant

v.

CHERYL VERONICA MASON

(Plaintiff) Respondent

McPherson J.A.
Mackenzie J.

Kiefel J.

Judgment delivered 6/04/94

Reasons for judgment of the Court

APPEAL DISMISSED WITH COSTS

CATCHWORDS	NEGLIGENCE - QUANTUM - Knee injury sustained while pushing hospital trolley - Whether post-traumatic osteoarthritis - Whether plaintiff unfit for retraining in clerical areas - History of "domestic work" - Whether "illiterate" and "innumerate" - Whether capable of retaining current employment as receptionist.
EVIDENCE - Defence witness not permitted to refresh memory from hospital accident book bearing her initials - Judge wished to test witness' recollection of sequence of events - Whether sufficient to found right of new trial
Counsel:	C. Holmes for the appellant
S. Williams Q.C., with him G. Radcliffe, for the respondent

Solicitors: Thynne & Macartney T/A for Primrose Couper

Cronin Rudkin, Southport, for the appellant
C.A. Sciacca & Associates for the respondent

Hearing Date: 22 March 1994