Iwasaki Sangyo Co (Aust) Pty Ltd v Manley

[1996] QCA 408

IN THE COURT OF APPEAL	[1996] QCA 408
SUPREME COURT OF QUEENSLAND

Appeal No. 160 of 1995

Brisbane
[Iwasaki v. Manley]

BETWEEN:

IWASAKI SANGYO CO (AUST) PTY LTD

(Defendant) Appellant

AND:

KELLY ANNE MANLEY

(Plaintiff) Respondent

Davies JA
McPherson JA

Ambrose J

Judgment delivered

Judgment

APPEAL DISMISSED

CATCHWORDS:

Counsel:	Mr for the appellant Mr for the respondent
Solicitors:	for the appellant the respondent
Hearing date:

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 160 of 1995

Brisbane

Before Davies JA

McPherson JA

Ambrose J

[Iwasaki v. Manley]

BETWEEN:

IWASAKI SANGYO CO (AUST) PTY LTD

(Defendant) Appellant

AND:

KELLY ANNE MANLEY

(Plaintiff) Respondent

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 22nd day of October 1996

I have had the advantage of reading the reasons for judgment of McPherson J.A. and

Ambrose J. I have come to the conclusion, like their Honours, that the appellant has failed to show

that the learned trial Judge's conclusion that the appellant failed to discharge the onus of proving that

the respondent ought to have mitigated her damage was wrong. The point was never pleaded and

seems rather to have been something of an afterthought. In any event, for whatever reason, the

evidence on the question remains in an incomplete and unsatisfactory state.

There is, for example, evidence from Dr. Gold, the only specialist dermatologist from whom

evidence was adduced, who saw the respondent only once on 29 May 1990, that with supervision

and treatment the dermatitis should have been controlled and that there should have been a high

probability that with adequate follow up and treatment the condition could have remained at least

reasonably comfortable. Unfortunately he was never asked what "controlled" or "reasonably

comfortable" meant in terms of improvement of the condition. And whilst the learned trial Judge

thought that the respondent was reasonable in not seeking to return to Dr. Gold because he

appeared not to be interested in her, no satisfactory explanation was given of her failure to return to

her treating doctor Dr. Gregory, to whom Dr. Gold had reported back and referred her back for

continuing treatment but instead to consult Dr. Donohue, another general practitioner, who

prescribed different treatment which she followed.

Then there is a gap of many years from mid 1991 during which she consulted no doctors at

all, explained only by the apparent failure of the treatment she had received up to then to improve

her condition.

Finally, whilst her consultation with Dr. Waite, a dermatologist in December 1993 to obtain

a medico/legal report appears to have elicited advice from the doctor that a week's treatment in

hospital might improve her condition, no evidence was adduced from Dr. Waite and consequently it

was impossible to say what the possibility was of that improvement or what other risks there might

be involved in such treatment.

Whilst the evidence may cause one to doubt whether the respondent acted reasonably in

mitigation of her disability I cannot be satisfied that the learned trial Judge was wrong in the

conclusion he reached on this question and I would therefore agree that the appeal should be

dismissed.

JOINT JUDGMENT - McPHERSON JA & AMBROSE J

Judgment delivered 22/10/1996

This is an appeal by a defendant against the quantum of damages awarded to the plaintiff in an action which was contested on both liability and quantum.

The appeal is based upon the contention that the learned trial judge failed to reduce the quantum otherwise appropriate on the basis of the plaintiff's failure to mitigate her damage.

Various items of assessment were canvassed but only on the basis that a proper
reduction had not been made to allow for the failure of the plaintiff to mitigate her damage.

It is convenient to state briefly the facts upon which the assessment of damages was The respondent was a 15 year old girl employed by the appellant as an apprentice chef. Unknown to both the appellant and the respondent, she had a genetically explicable tendency to develop dermatitis in her hands in circumstances in which she used them as apprentice chef.

made.

She commenced work on 23 January 1990. Due to the use to which she was required to put her hands while working she developed a condition of dermatitis within about one month. Two months after commencing work she sought attention from a medical practitioner who prescribed cream for use on her hands and advised that she wear rubber gloves. She took the steps advised but her condition did not improve and three weeks later she consulted another medical practitioner. During this period of three weeks she had continued to do work as required as apprentice and this included washing up dishes and utensils of various kinds in hot water.

The second doctor prescribed ointment and recommended that she avoid contact with hot water and detergents. However she was still required to continue to do washing up for about another week or so. The last day on which she performed washing up duties as apprentice chef was 25 April 1990. She again consulted the second doctor on 26 April 1990. Her doctor recommended that she take time off work and continue with treatment he prescribed. She did this and was not required to wash dishes again upon her return to work.

The plaintiff was exposed to the effect of using her hands in hot water and detergents for a period of about three months. After the expiration of that time she was not required again to use hot water and any problems with her hands that she had then or thereafter which were canvassed upon trial related to the effect of the immersion of her hands in hot water in that three month period.

The learned trial judge found that damage to the plaintiff's hands was caused by the negligence of the appellant. There was no finding of contributory negligence.

There is no appeal against those findings on the question of liability.
The learned trial judge assessed damages in the sum of the $96,144.55. Included

were assessments for pain and suffering in the sum of $20,000, past economic loss in the sum of $38,281.67, future economic loss in the sum of $25,000, and a Griffiths v. Kerkemeyer award in the sum of $10,080.

Various other items of damage were assessed but the items to which we have referred were those to which specific reference was made upon appeal.

The appellant appeals against the assessment only on the basis that the learned trial judge failed to reduce the respondent's damages because of her failure to mitigate her damage by seeking further medical treatment and complying with the recommendations of medical advisers.

It is unnecessary therefore to examined the assessment of individual items of quantum unless the appellant succeeds on its contention that the learned trial judge's award of damages was excessive because the plaintiff failed to mitigate her damage by pursuing and obtaining medical advice and treatment for the medical condition she developed as a consequence of the appellant's negligence.

The first thing to observe is that the appellant did not raise any question of the respondent's failure to mitigate her damage in its pleading. The matter seems to have arisen in the course of the trial. The respondent did not object to the pursuit of this issue in spite of the fact that it had not been raised in the pleadings.

In my view in those circumstances the issue of mitigation was properly considered by the learned trial judge. However, the failure to define the issue properly in the pleadings so that adequate preparation for determination of that issue could be made by the respondent is a matter to be kept in mind when determining the nature of the evidence called.

The appellant, having raised the issue of mitigation in the course of the trial and being permitted to pursue it, bore the onus of establishing it: Watts v. Rake (1960) 108 CLR 158 at 159.

On the issue of mitigation the onus was on the appellant to show -

(i)           that the respondent could have mitigated her damage by adopting a specified course of conduct and treatment; and

(ii) that she would have been unreasonable in not adopting that course of conduct and
treatment having regard to her knowledge of its availability.
A review of the whole of the medical evidence led upon the trial fails to disclose that

any specified treatment was at any material time reasonably available to the respondent which would probably have, or may even possibly have, improved the condition of her hands which resulted from the appellant's negligence.

The appellant sought to rely upon evidence from a specialist dermatologist whom the respondent had consulted on one occasion about a month after she ceased to wash up dishes and utensils as an apprentice chef. He said that when he examined her, he considered that "with supervision and treatment the dermatitis should have been controlled. I would say that there should have been a high probability that with adequate follow up and treatment and further dermatological referral if necessary that the condition could have at least remained reasonably comfortable".

There was no evidence that this medical opinion was ever relayed to the respondent. There is no evidence that she was ever advised after consulting him that she should obtain "supervision and treatment" from medical practitioners so that her condition might remain "reasonably comfortable".

However, it emerged that even if the plaintiff was not advised of the desirability of continuing to receive medical supervision and treatment for her hand condition she did in fact do so. It is clear upon the evidence that over a period of years, she consulted a number of doctors about her hands and she said that she followed the advice given by all of them. She said that she had used all the medications prescribed for her and followed all the advice given by a number of medical practitioners and found that none of them relieved the condition that she developed in her hands while employed by the appellant.

A significant point relied upon by the appellant is that the evidence disclosed that a Dr Waite in December 1993 informed the respondent that if she admitted herself to hospital for treatment there was chance that the problem with her hands could be cleared up. The doctor suggested that it would take a week or so of treatment to determine whether it might be effective. This advice was received nearly four years after the plaintiff's hand condition had deteriorated and as it happened when she received this advice she had employment.

She said she decided not to go to hospital because she had a job at the time and did not wish to take time off to enter hospital for the suggested treatment. She said that had she not had a job at the time she would have entered hospital to see if the treatment might be successful.

This was an important aspect of the evidence upon which the appellant relied to support its contention that the plaintiff failed to mitigate her damage in failing to adopt the suggestion of Dr Waite to enter hospital for treatment to see if it might improve her condition.

The plain fact is that there was no evidence whatever that the suggested or any other treatment for that matter would probably have improved the hand condition of the respondent from which she had suffered for nearly four years during which time she had received much medical attention for it. There was no evidence as to what the treatment contemplated by Dr Waite was or whether it differed significantly from the unsuccessful treatment she had already received. Dr Waite was not called to give evidence.

In our view it could not be said that the respondent was unreasonable in the circumstances in failing to leave her employment and enter hospital in the hope rather than the expectation that the suggested treatment for her hands during the following week would cure the condition from which she had suffered in spite of repeated medical examinations and ineffective treatments over a period of nearly four years.

In our view upon the whole of the evidence the appellant failed to discharge the onus upon it on the issue it raised in the course of the trial that the respondent had failed to mitigate her damage by undertaking medical treatment for her hand condition which she was or should have been aware was available for it. There is absolutely no evidence that any treatment that she may have received from anybody either in hospital towards the end of 1993 or any other time prior to trial would in fact have cured or even alleviated to any significant extent the problems caused by her hand condition in her day to day living or capacity to earn an income.

The appellant first raised failure to mitigate in the course of the trial and

consideration of the evidence indicates that little or no preparation had been made to contest this issue on the part of either the appellant or the respondent before it was raised. Unsurprisingly in the circumstances the appellant failed to discharge the onus on it on that issue.

In our view the learned trial judge's determination that the appellant failed to discharge the onus on it on the issue of failure to mitigate has not been shown to be incorrect.

I would dismiss the appeal.