JMK Constructions Pty Ltd v Blackwell
[1989] TASSC 57
•25 October 1989
Serial No 56/1989
List "A"
CITATION: JMK Constructions Pty Ltd v Blackwell [1989] TASSC 57; A56/1989
PARTIES: JMK CONSTRUCTIONS PTY LTD
v
BLACKWELL
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FC 3/1989
DELIVERED ON: 25 October 1989
DELIVERED AT: Hobart
JUDGMENT OF: Neasey, Cox and Crawford JJ
Judgment Number: A56/1989
Number of paragraphs: 19
Serial No 56/1989
List "A"
File No FC 3/1989
JMK CONSTRUCTIONS PTY LTD v BLACKWELL
REASONS FOR JUDGMENT FULL COURT
NEASEY J
COX J
CRAWFORD J
25 October 1989
Order of the Court
Appeal dismissed.
Serial No 56/1989
List "A"
File No FC 3/1989
JMK CONSTRUCTIONS PTY LTD v BLACKWELL
REASONS FOR JUDGMENT FULL COURT
NEASEY J
25 October 1989
A construction company appeals against the judge's decision in favour of its former worker in a workers' compensation claim. The learned trial judge in his judgment laid out his line of reasoning very clearly and succinctly, in a case in which his assessment of witnesses' credibility was very important, and the question is whether the reasoning has been shown to be significantly at fault. His Honour accepted that the worker suffered the fall in which he claimed to have injured the upper part of his spine, and the appellant did not quarrel with that finding. The real contest was as to whether the fall caused the injury complained of. From an evidentiary point of view, the answer to that question depended upon the respondent's history in the months following the fall, and the medical evidence based thereon. Counsel for the appellant agreed they were the vital factors.
In respect of those matters the learned trial judge made positive findings. There was a conflict in the medical evidence as to the cause of the respondent's disability and his Honour accepted the evidence of the neurosurgeon, Mr Liddell. The soundness of Mr Liddell's opinion depended heavily upon his having accepted a version of the respondent's medical history following the fall which was a correct version. As to that, his Honour held that he had. He said that the evidence of a number of witnesses justified Mr Liddell's view of the facts. Thus:–
1His Honour accepted the respondent's evidence "on the basic points which were of critical importance to Mr Liddell when forming his opinion", even though the judge said some parts of the respondent's evidence were exaggerated and inaccurate.
2He accepted "the basic facts from the evidence of Debbie Archer and Mr Gregson", and he thought the respondent's evidence was corroborated by those two witnesses, and to a substantial extent also by the evidence of Dr Scarr.
Together, the learned trial judge said, the testimony of those witnesses supplied an adequate foundation of fact for Mr Liddell's medical opinion, and that opinion, which was of course favourable to the respondent, he accepted. In my view there is no basis for interfering with his Honour's treatment of the evidence in any of these respects. The testimony of the respondent's co–worker, Mr Gregson, was particularly important in its corroborative aspects. He was present when the accident occurred, by the respondent tripping over a piece of timber while they were walking from one place to another at the work site. He said the respondent was off work for some weeks, he could not say how long – he was very vague about that – but when the respondent came back, "Well, he wasn't really fit, put it that way, he was gettin' around like an old man really. Lifting stuff was too much for him, you could see that anyhow, and apparently there was no light duties there for him, and the carpentry work was too heavy for him." Counsel for the appellant criticised the learned judge's acceptance of Gregson's evidence, but we could not interfere with his acceptance of it. It was said that Gregson's evidence was too vague for it to be accepted that it related to the period when the respondent first came back to work, but even on a reading of the transcript by one who was not at the trial, the impression conveyed is that that is just what Gregson was talking about, and the trial judge was certainly entitled to accept that he was.
A similar comment applies to the evidence of Miss Archer. She had lived in the same house with the respondent during the last year or so before the trial, it appears, and she had two children by him from an earlier time when she had a relationship with him. She also had two other children, and she described going with the children to visit him, when she would find him with "a really bad back", and unable to look after himself in the house. She helped him with house work and gardening and so on, and eventually she moved in with him as a housekeeper. The accident happened in August 1985, and the trial was in June 1988. While a reading of this part of the transcript certainly exhibits vagueness as to times, the criticism again being that the witness' evidence cannot be related sufficiently closely in time to the accident to assist the respondent, the learned judge heard the evidence and saw the witness and was entitled to accept that it was sufficiently related to the accident and its sequelae.
Dr Scarr was the respondent's regular medical practitioner. He saw and examined the respondent two days after the accident. The respondent told him he had had an accident at work two days before, and that he had had severe pain since the time of the accident, and the doctor gave him time off work and pain relief and ordered an x–ray. Dr Scarr made a note that the respondent complained of both neck pain and lower back pain on 19 August 1985. The x–ray which was done on 20 August showed a possible fracture through the right transverse process of L1 and "early narrowing of C5, C6 and C7 disc spaces", but no evidence of bony injury. In due course Dr Scarr referred the respondent to the specialist, Mr Liddell. I think Dr Scarr's evidence was capable of providing substantial corroboration for the respondent.
Mr Liddell first examined the respondent in June of 1986, and he told the court of the detailed history he was given. He arranged for the respondent to have diagnostic discography in April 1987. This showed morphological abnormality in the C6 and C7 area, and injection of dye into that disc appeared to exacerbate the inter–scapular pain of which he had been complaining – a very important fact. On the basis of this knowledge and the history which he had been given, he formed the view that it was probable that the pain and disruption of the disc occurred as a result of the accident at work in August of 1985. Overall, although there was plenty of room to criticise and dissect in detail the evidence which the trial judge accepted, and to point to material and in particular of course to medical opinion which tended the other way, I have no doubt that, especially with his advantages of having seen and heard the witnesses, his Honour was entitled to view the evidence in the way he did. This case was about the trial judge's acceptance and assessment of evidence, and I am not persuaded that his Honour did anything in either area which he was not entitled to do. The appeal should be dismissed.
File No FC 3/1989
JMK CONSTRUCTIONS PTY LTD v BLACKWELL
REASONS FOR JUDGMENT FULL COURT
COX J
25 October 1989
I agree with the reasons for judgment prepared by Neasey J which I have had the advantage of reading.
File No FC 3/1989
JMK CONSTRUCTIONS PTY LTD v BLACKWELL
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
25 October 1989
This is an appeal by an employer against a judgment in favour of its employee on a claim for workers compensation. The evidence established that the respondent was employed as a carpenter and on Saturday 17 August 1985, while at the work site, in the course of that employment, he fell heavily onto his left shoulder and back. Suffering from pain he was taken to the Royal Hobart Hospital but was not seen. Two days later he consulted his general practitioner, Dr Scarr, complaining of pain in the lower back and in the cervical spine. Having been certified fit to return to work he did so on 25 September 1985, and apart for a few absent days continued working until 20 December when the project stopped for the Christmas period. He resumed work on 6 January 1986 but on the next day consulted Dr Scarr for an injury to his thumb, as a result of which he was certified unfit for work until 11 January. Presumably he returned to work then, although when giving evidence he had no memory of that thumb injury or of that short absence from work. He stopped work again on Friday 24 January 1986. Four days later, following the Australia Day weekend break, he consulted Dr Dobson, who was Dr Scarr's locum tenens. Apart from possibly a few days, probably no more than a week, in March 1986, he has not worked since. The appellant terminated the employment effective from 1 April 1986. l will return later to more detail of what occurred between the accident and the end of March, 1986.
The respondent 's evidence was that from the date of the accident until the trial in June 1988 he suffered substantial and incapacitating pain in the interscapular region. On 23 June 1986 he saw a neurosurgeon, Mr Liddell, on reference from Dr Scarr. Mr Liddell was then uncertain as to the cause of the ongoing pain and he carried out further investigations, Diagnostic discography was performed on 6 April 1987. It was found that the C67 disc was morphologically abnormal and the injection of dye into that disc appeared to exacerbate the interscapular discomfort. Mr Liddell formed the opinion that that particular disc was the cause of the ongoing discomfort. Based on the history he obtained he formed the opinion that disruption of the disc more probably than not occurred as a consequence of the injury at work in August 1985. Mr Liddell said that the history was of paramount importance in the formulation of his opinion. The morphological abnormality of the disc at C67 could have been caused, based on appearance alone, by wear and tear, degenerative changes or by trauma. It was not possible, other than on the basis of historical evidence, to say whether the accident at work was the cause. The history relied on by him came mainly from what the respondent had told him and that was that he had had no interscapular pain prior to the accident, that he experienced the immediate onset of the pain as a result of the fall, that on returning to work his discomfort was aggravated, that the pain was made worse by all sorts of activity and that eventually the respondent felt he was quite incapable of working because of his suffering.
In cross–examination Mr Liddell was asked what his opinion would be if the history was in fact that after about a month off work, the respondent worked for about four months without discomfort. Mr Liddell said that it would not rule out the possibility that there was an injury to the disc which was eventually exacerbated by work activities, but it would be "disconcerting" and he would be less inclined to relate the subsequent discomfort to the accident. He said whether the respondent worked four months without discomfort "is really the crux of the matter". He went on to say that if the respondent did work without discomfort "then it is probable that his ongoing pain came as a result of some event that occurred after the accident".
The learned trial judge found that there was an adequate foundation in fact, supplied by the evidence of the respondent, Mrs Archer, Mr Gregson and Dr Scarr to support the opinion of Mr Liddell that the respondent's pain, discomfort and incapacity were caused by the fall.
The respondent's evidence was that he "was as fit as a mallee bull before that happened" but at all times following the accident he suffered from the interscapular pain. When he returned to work he was still very sore. He could not work to his previous capacity. He could not bend as before or perform heavy lifting. After the Christmas break his back was still sore and he finally stopped work when he had to struggle to get up after kneeling.
The evidence of Mr Gregson, a builder's labourer at the work site, supported the respondent. Mr Gregson was present when he fell. After he returned to work Mr Gregson observed that "he wasn't really fit, put it that way, he was getting around like an old man really. Lifting stuff was too much for him, you could see that anyhow, and apparently there was no light duties there for him, and the carpentry work was too heavy for him".
Evidence from Mrs Archer strongly supported the respondent's claim to have been substantially incapacitated. She described visits to his home when she would do housework and gardening for him because he could not do anything for himself around the house. Just over twelve months prior to her giving evidence on 23 June 1988, she commenced to live in his house as a housekeeper and during that period the respondent spent most of his time lying on a bed watching television. He was taking pain killers. Unfortunately neither counsel asked her when it was that she first observed that he was suffering from his back and so no evidence was given by her on that subject. As a result her evidence did not assist to supply a foundation for the opinion of Mr Liddell, in so far as it depended very much on the critical history of the few months following the accident when the respondent was back at work.
The learned trial judge found a good deal of support for the respondent's case in Dr Scarr's evidence. In some respects it did provide support but in other regards it did not. When he first saw the respondent two days after the fall, the complaints were not only of tenderness in the lower back but also of pain in the cervical spine, which is significant. X–rays showed a possible fracture through the right transverse process of the L1 and, with regard to the cervical spine, early narrowing of the C5, C6 and C7 disc spaces. Six weeks were allowed for the healing of the possible fracture and pain relief was provided. The respondent was then certified fit to return to work, with no tenderness over the lumbar spine. Medical treatment had concentrated on the possible fracture in the lower back, to that point of time.
In examination–in–chief Dr Scarr said that the respondent came back reasonably soon afterwards complaining of cervical pain, but cross–examination revealed this not to be accurate. The history after 23 September 1985, which was when the doctor certified fitness to return to work, was elicited as follows. On 12 November 1985 "his back was o.k. at that time and he presented ... for sleeping disturbance ... I would have asked him how his back was going". On 11 December 1985 the attendance was again for "sleeping disturbance". On 3 January 1986 the attendance was for a pre–existing gout condition and sleeping disturbance. On 7 January 1986 the respondent's complaint was of an injured thumb. Then on 28 January 1986 Dr Scarr's locum tenens recorded having seen the respondent and that his back was "still painful". She referred him to a specialist, Mr Law who in turn arranged physiotherapy. She also recorded that the respondent was taking Codeine Phosphate. On 21 February 1986 Dr Scarr saw the respondent when he complained of back pain. The doctor said that the complaint was mainly of cervical pain after the low back pain subsided. It therefore appears that the respondent made no complaint to his doctors of back pain after 23 September 1985 until 28 January 1986, despite four consultations and on 12 November he said that his back was "ok". On the evidence therefore he worked for a total of about three and a half months before he complained again of his back pain to his medical practitioner.
The appellant relied on the evidence of one of its directors, Mr Carroll, who was also site foreman. He gave evidence that when the respondent was back at work between 25 September and 20 December 1985, he made no complaint of pain or of inability to perform his full duties as a carpenter, and no one else said that he was not performing his full duties or that he had asked anyone else to do his duties for him. Reliance was also placed by the appellant on the evidence of a surgeon, Mr Turner, who saw the respondent on 27 March 1986 and on 1 February 1988. Although Mr Turner's opinion was primarily against the respondent, it appears that he was in general agreement with what Mr Liddell said to the effect that the history of any pain and discomfort, during the time when the respondent was back at work after his accident, was of critical importance.
The learned trial judge had the obvious advantage, not shared by this Court, of seeing and hearing the witnesses and assessing their evidence with that experience. He was entitled to accept the evidence of Mr Gregson which quite strongly corroborated and supported the history relied on, and the evidence given, by the respondent. The evidence of Dr Scarr established that the cervical spine was injured in the fall and Mr Liddell's evidence established as a probability that a condition in the cervical spine is the cause of the interscapular pain and of the respondent's obvious incapacity. There was a substantial amount of evidence supporting the respondent's case, notwithstanding certain weaknesses particularly revealed by some of the evidence of Dr Scarr, and by some of the evidence of the respondent himself which the learned trial judge referred to as exaggerated and plainly incorrect.
On balance I am not persuaded that the findings of the learned trial judge were wrong. The appeal should be dismissed.
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