Groves v Queensland Independent Wholesalers Ltd

[1992] QCA 432

IN THE COURT OF APPEAL

[1992] QCA 432

SUPREME COURT OF QUEENSLAND

Appeal No. 145 of 1992

PETER KEITH GROVES

(Plaintiff) Respondent

-and-

QUEENSLAND INDEPENDENT WHOLESALERS LTD.

(Defendant) Appellant

The Chief Justice
Mr. Justice McPherson

Mr. Justice de Jersey

Judgment of the Court delivered on the 11th of December,

1992

APPEAL DISMISSED WITH COSTS TO BE TAXED

Counsel:	I.D.F. Callinan Q.C., with him R.A.I. Myers for the appellant
S.C. Williams Q.C., with him M. Grant-Taylor for the respondent
Solicitors:	Clewett Corser and Drummond for the appellant Wonderley and Hall for the respondent

Hearing Date: 6th November, 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Before: The Chief Justice

Mr. Justice McPherson Mr. Justice de Jersey

Appeal No. 145 of 1992

PETER KEITH GROVES

(Plaintiff) Respondent

-and-

QUEENSLAND INDEPENDENT WHOLESALERS LTD.

(Defendant) Appellant

JUDGMENT OF THE COURT

Delivered the 11th day of December, 1992

The respondent was awarded damages for injuries he sustained on 12th November, 1986 in the course of his employment. The learned trial Judge found that the respondent suffered an intradiscal rupture to the lumbar spine while lifting 30kg bags of sugar from one pallet onto another. The Judge also found that the respondent had earlier injured his back, while lifting in December, 1983. The appellant knew of that, and the respondent had subsequently complained to the appellant of back pain during later employment by the appellant prior to the subject incident. The Judge found the appellant negligent in having failed to instruct the respondent in relation to lifting technique, and in having required the respondent to lift the bag, without assistance, when the appellant knew that the respondent was, because of that earlier injury, at higher risk of back injury than other employees. He also found a breach of r. 25(1) under the Factories and Shops Act.

The appellant first challenges the Judge's reliance on certain evidence admitted on the basis that it was the opinion of an expert. The evidence came from an engineer, Mr. McDonald, who claimed expertise with respect to lifting technique. The Judge expressed his agreement with this passage from Mr. McDonald's report:

"From the lifting task examined it can be expected that a person with no known previous spinal damage could suffer injury and the likelihood of injury for someone who has previously suffered spinal damage would be greater still. The bags could be handled with less risk if one person were to lift each end of a bag. Under these conditions the load would be evenly shared and if one person lost their grip of the bag, the other person's grip is unlikely to be strong enough to maintain a grip.

The bag would then fall free and the likelihood of injury would be substantially reduced."

Mr. Callinan Q.C., who appeared for the appellant, submitted that those views did not fall within an appropriately "expert" field, in that they were largely matters of common sense; or alternatively, that assessing the likelihood of further injury was really a medical question, and not within an engineer's expertise. The Judge overruled an objection at trial to the admission of the evidence.

Although the appropriateness of various lifting techniques may be a matter upon which expert opinion might be admitted on the basis of the principles explained in Clark v. Ryan (1960) 103 C.L.R. 486, it is strongly arguable that the opinion expressed in the first sentence in the above extract was primarily within the province of a medical specialist, and that the contents of the second sentence were largely a matter of common sense and not appropriate for the expression of so-called expert opinion. It is not however necessary for us to express a concluded view on those questions.

If the evidence was wrongly admitted, that does not necessarily invalidate the judgment or lead to there being a new trial. This Court should then determine the matter for itself on the record unless of opinion that "some substantial wrong or miscarriage has been thereby occasioned in the trial", in which event there should be a new trial. See s. 13 Supreme Court Act of 1874, discussed in McNamara v. Hooper (1961) Q.W.N. 17.

There is, here, no ground for thinking that the admission of this evidence, if wrongful, occasioned any substantial wrong or miscarriage.

The Judge found that in December, 1983, the respondent hurt his lower back while unloading pallets from a truck. He was consequently absent from work for 17 days, worked subsequently on light or moderate duties for about nine months, and then a year before the subject accident was appointed as dispatch storeman. He had complained to the appellant's manager of back pain. The Judge clearly regarded the respondent as a person with a vulnerable or weakened back, more susceptible of further injury than a normal back, and that the appellant was aware of that or should have been aware of it. There was medical evidence given at the trial from Dr Boys, an orthopaedic surgeon, that provided a 30kg bag were lifted correctly, a man with a healthy back should suffer no injury by doing so. The Judge found that the appellant gave the respondent no instruction on proper lifting technique. The respondent having sustained this injury, the possible conclusions were that his already defective back made him more vulnerable to such injury, and that the appellant negligently failed to recognise and guard against that; or that, assuming the respondent had a healthy back (and of course His Honour found to the contrary), the injury resulted from incorrect lifting technique for which, again, the appellant should be held responsible. The evidence apparently accepted by the Judge therefore provided a clear foundation for the finding of liability in the appellant.

That evidentiary foundation for the finding of negligence being clear, it would be difficult to conceive that the admission of this challenged evidence, if wrongful, occasioned any substantial wrong or miscarriage. But in any event, and as Mr. Callinan virtually conceded, the substance of the paragraph is really a matter of common sense anyway: most if not all lifting operations involve some risk of injury, greater if the back is already weakened or vulnerable, and the risk involved in carrying a 30kg bag would fairly obviously be reduced were two men to share the load.

The second aspect of the challenge to the Judge's finding on liability involved an assertion that there was no evidence of any causal link between a previously weakened or vulnerable back, and the injury sustained on this occasion.

The Judge held the appellant liable on the basis that it knew of the respondent's vulnerable back, yet unreasonably exposed him to this risk of injury, greater for him than for other employees with normal backs. Part of Mr. Callinan's submission was that there was no sufficient evidence of the nature of any prior injury to enable one to establish that necessary causal link.

We have referred already to some of the respondent's own evidence about the 1983 injury. The respondent complained to Dr. McPhee (ex. 5) of having injured his back in 1983, and suffering low back and left leg pain. The respondent's evidence was that he then hurt the "middle lower" part of his lumbar spine, leading to lower back pain.

In addition, there was, in the evidence, admitted by consent, a determination in writing by the Orthopaedic Board confirming that in December, 1983 the respondent suffered an injury which caused a permanent partial incapacity for work.

(There was debate before us about other parts of that
determination, but for present purposes, it is not necessary
to go further into it.) Then there is the Judge's
acceptance that the respondent complained to his employer of
continuing back pain, up to about one year before this
incident.

The aggregation of that evidence constituted a sufficient basis for a conclusion that to the time of this incident, the respondent's back was weakened or vulnerable, the appellant being aware of that. Although the precise nature of that earlier injury was not established, that it was an injury to the lower back which caused persisting problems, was enough to warrant the finding that the respondent was more susceptible of injury through this sort of lifting than were other employees with normal backs, and that this particular lifting operation caused the subject injury. We repeat the reference to Dr. Boys' evidence that injury would be unusual were a person with a normal back to lift such a weight, but provided he lifted it correctly. The Judge was entitled to infer from that, or common experience, that the previous injury would increase the risk, or that the respondent lifted incorrectly, and of course he found that the appellant gave no instruction on appropriate lifting technique.

Finally with respect to liability, the appellant contended that during the trial, the Judge intervened excessively and made inappropriate comments. Mr. Callinan submitted that the Judge's conduct indicated ostensible bias. The short answer to this contention is that Counsel for the appellant at the trial raised, during the trial, no objection to His Honour's conduct. If any bias was then suspected, then Counsel, not having objected, must be taken to have stood by until the contents of the judgment were known. That precludes any subsequent objection on that basis: Vakauta v. Kelly (1989) 167 C.L.R. 568, 573.

But no objection could seriously have been taken to the Judge's conduct.

Mr. Callinan relied principally on this exchange during

the opening of Mr. Grant-Taylor, Counsel for the respondent:

"MR GRANT-TAYLOR: The plaintiff was off work in

'83 for about four weeks.

HIS HONOUR: I can see that.

MR GRANT-TAYLOR: He returned to work -----

HIS HONOUR: But the important thing is that the defendant, from your point of view, knew that the man had a back condition.

MR GRANT-TAYLOR: That is my client's case.

HIS HONOUR: Did you hear that, Mr Myers? Are you listening to this opening? The plaintiff's case is really that your client knew after the 1983 accident that this fellow had a bad back. You required him to do lifting work and he hurt his back again.

MR MYERS: Yes, Your Honour, we know what his case is. It is not our case. You will hear a different case from that.

HIS HONOUR: Isn't that negligence, or do you say he wasn't lifting bags?

MR MYERS: No, we say he wasn't lifting bags.
HIS HONOUR: I see."
Mr. Callinan submitted that the Judge thereby

demonstrated some pre-judgment in favour of the respondent. The more likely interpretation is that the Judge was simply endeavouring to understand the point of difference between

the plaintiff and the defendant.

Then during the appellant's Counsel's cross-examination of the respondent, this occurred:

"HIS HONOUR: Mr Myers, you still have not said anything about the situation in which the plaintiff says he was injured. I have heard nothing from you as to the system, if you had an order of say 30 bags of sugar which the plaintiff says they had -----

MR MYERS: Sorry, I thought I covered it.

HIS HONOUR: The picture I have got - if I am wrong I want to be disabused on it - it was impossible to put 30 bags of sugar on one of these trolleys.

MR MYERS: With respect I had covered it, but I will go over it again.

HIS HONOUR: I didn't hear you say that at all." through clear and precise cross-examination.
That merely indicated some anxiety on the part of the

We were referred to many other instances of questions or observations by the Judge. None of them was improper. As Mr. Williams Q.C., who appeared for the respondent, acknowledged, intervention by a trial Judge is usually appropriate. He correctly characterised this Judge's interventions as legitimate attempts to define the issues and correct or avoid misapprehension.

It really goes without saying that a Judge sitting without a jury is entitled to participate actively in the trial. He or she is ordinarily free to ask questions, both of the legal representatives and the witnesses, as necessary, in order to clarify or narrow the issues and facilitate a precise and comprehensive understanding of the evidence. The Judge is also quite entitled to express constructive views on the way a case is being conducted if that may, in the Judge's view, help the parties (and promote the public interest) by accelerating or shortening the hearing. The Judge may see fit, in an appropriate case, to inquire at the outset whether comprehensive attempts have been made to settle the case, and invite the parties to negotiate further if satisfied that that may promote a settlement and thereby, their interests. It is now well accepted that a trial Judge may, and sometimes should, make his or her own inquiries of legal representatives during a trial to ensure that a case is being properly "managed", to promote both the interests of the parties and, through ensuring the optimum use of judicial resources, the public interest. Not all of the interventions here were of that character. We nevertheless offer those examples to illustrate that the Judge's discretion in these matters is indeed very wide.

The criticism levelled at the intervention of this Judge ignored those matters, and was probably based on an incorrect assumption that a trial Judge should sit meekly silent throughout a trial, lest anything he say be construed as indicating pre-judgment or bias. The obvious unacceptability of such an approach was recently confirmed by the High Court in Vakauta v. Kelly in this passage (p. 571):

"Nor will that requirement of the reality and appearance of impartial justice be infringed if a judge with preconceived views about the general reliability of the evidence of a particular medical witness discloses the existence of such views in the course of the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case. In the course of an eloquent passage in his judgment in Reg. v. Watson; Ex parte Armstrong (1976) 136 C.L.R. 248, at p. 294, Jacobs J. expressed the view that judicial 'silence' is a 'counsel of perfection'. We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated."

We turn now to the grounds of appeal concerning the assessment of damages. The total assessment was in the amount of $474,717.73, and included $55,000 for pain, suffering and loss of amenities, $86,850 for past economic loss, $260,000 for future economic loss, and $25,000 future Griffiths v. Kerkemeyer component. Only those components were challenged on appeal.

Mr. Callinan submitted that the $55,000 awarded for pain, suffering and loss of amenities was substantially too high. The respondent was 28 years old when injured. He suffered an intradiscal rupture in the lumbar area, causing pain and discomfort ever since. The respondent had not worked since the accident, say for a short period doing "letter drop" work. He underwent two operations. As at trial, he was unable to bend forward in the ordinary way - he could reach only six inches below his knee caps. He experienced constant low back pain with radiation to the left buttock, and left sciatic pain down to the left foot with intermittent paraesthesia of both feet. Sitting tolerance was 10 minutes, standing tolerance 10 minutes, and walking tolerance 30 minutes. The Judge found that all of those problems were referable to this injury. They were permanent, and reflected a 15 per cent loss of whole body function. An important feature of the Judge's approach was his view that the respondent had a lower pain threshold than most members of the community, and so suffered more. The respondent and his wife have young children. The Judge pointed out that the respondent's disability would limit his enjoyment and family life, and emphasised that he "has many years of life left, albeit with his constant pain".

The award of $55,000 was certainly high, even allowing for the respondent's comparatively young age and low pain threshold, but not so high as to justify interference by this Court. It is important to note that the Judge had the benefit of seeing the respondent give evidence. That may have borne significantly on such factors as a proper appreciation of the enhanced level of pain experienced by the respondent because of his low pain threshold. We should not interfere with this component.

In setting the component for past economic loss at $86,850, the Judge worked from a schedule showing that had the respondent continued in employment with the appellant to trial, he would have earned net $87,165. He then deducted the $315 received from the letter drop work. He pointed out that after leaving school, the respondent was in continuous employment. He was well regarded as an employee by the appellant, and the Judge considered that he would not have been retrenched. Any sickness could have been accommodated within normal sick leave entitlements.

Mr. Callinan submitted that the Judge should have discounted that amount back to account for the possibility that the respondent's vulnerable or weakened back may have led to injury in any event, or otherwise necessitated absence from work which could not have been accommodated within sick leave entitlements. There is however no evidence of any absence from work in the period from the accident in 1983 to this accident in 1986. That is of itself a sufficient answer to the contention that the Judge should have applied such a discount in respect of the period 1986 to 1992.

The component for future loss of earning capacity was $260,000. The Judge found that the plaintiff would probably have worked to the age of 65 years, and probably with the appellant. He proceeded on the basis that the appellant would probably trade indefinitely into the future. The respondent has a very limited residual earning capacity, restricted to light bench work. He was previously only fit for storeman work. He would be seriously disadvantaged on the open labour market. The Judge considered that the chance of the respondent's converting his limited work capacity "into a job producing regular income will be slight in healthy economic times. The chances are even less so long as Australia continues to experience high unemployment and a recession ...". Allowing for that slight residual earning capacity and the ordinary "vicissitudes of life", the Judge adopted $260,000, pointing out that a 31 year period (to age 65 years) would give $289,064 and a 30 year period $284,905.

Mr. Callinan contended that the Judge did not sufficiently discount in view of the possibility of other back problems developing. The $260,000 he has allowed approximates the loss calculated with reference to a 25 year period (to age 59 years). When the award is seen in that light, the extent of discount is not open to challenge.

Finally, the appellant submitted that the Judge should have allowed nothing for the future on the basis of Griffiths v. Kerkemeyer. The Judge arrived at that figure of $25,000 by finding that the respondent's wife spends about 30 minutes per day showering and washing the respondent's legs, drying them, and on occasions, helping him put on shoes and socks, and in massaging his neck and shoulders. He found that the respondent needed that assistance. He was conscious of observations in Carrick v. The Commonwealth (1983) 2 Qd.R. 365. He adopted a commercial rate of $10 per hour, and that appears to be justified by Van Gervan v. Fenton (High Court, unreported, 28th October, 1992). Applying a term of 30 years produced $28,770 which the Judge then discounted back to $25,000 to reflect the ordinary vicissitudes of life. He observed that the respondent's lower than normal pain threshold had caused him to be more generous than he otherwise would have been.

Mr. Callinan submitted that because the evidence disclosed that through his unemployment, the respondent was now able to assist his wife in other ways which lessened her burden, in a sense compensating for the additional work she had to do for him, nothing should have been allowed under this head. Mr. Williams countered that that issue was not explored at trial. But if the evidence is there, the Judge could have utilised it, although as Mr. Williams also submitted, it could be argued that the validity of such an exercise would be doubtful in light of Carrick and other cases.

But without resolving that, we are in any event constrained now on appeal by the Judge's findings of fact with respect to this issue, all of which were open on the evidence. The Judge consciously embarked upon what he described as a generous course, but he was entitled to do that in view of those findings which were very favourable to the respondent, especially as to his low pain threshold. The award is high, but acknowledging the findings upon which the Judge based it, we should not interfere.

The appeal will therefore be dismissed with costs to be

taxed.