Leppington Pastoral Co Pty Ltd v Juweinat - [2002] NSWCA 228

NEW SOUTH WALES COURT OF APPEAL

CITATION: Leppington Pastoral Co Pty Limited v Juweinat [2002] NSWCA 228

FILE NUMBER(S):
40826/01

HEARING DATE(S): 1 July 2002

JUDGMENT DATE: 16/07/2002

PARTIES:
Leppington Pastoral Co Pty Limited v Nabil Juweinat

JUDGMENT OF: Stein JA Davies AJA Foster AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 1402/00

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
G.F. Little SC with S.M. Kettle (Appellant)
G.B. Hall QC with R.B. McCloghry (Respondent)

SOLICITORS:
Hunt & Hunt (Appellant)
Eugene Lepore & Associates (Respondent)

CATCHWORDS:
Torts
Negligence
Liability
Damages
Worker suffered sciatic back as a result of three incidents
Where damages required to be assessed separately for each incident

LEGISLATION CITED:
Workers Compensation Act, sections 151E, 151F, 151H

DECISION:
Appeal dismissed with costs
Cross appeal dismissed

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40826/2001
STEIN JA
DAVIES AJA
FOSTER AJA
Tuesday 16 July 2002

LEPPINGTON PASTORAL CO PTY LIMITED v NABIL JUWEINAT

JUDGMENT

STEIN JA: I agree with Davies AJA.
DAVIES AJA: This is an appeal from the judgment of a Judge of the District Court, his Honour Judge Delaney, in which his Honour awarded damages of $181,397.44 to the present respondent, Nabil Juweinat, who had suffered an injury or injuries to his back during the course of his employment with the appellant, Leppington Pastoral Co Pty Limited.
Mr Juweinat, a welder, had been working with the appellant for less than twelve months when, during April and May 1999, he suffered pain and discomfort as a result of three incidents in which he lifted or assisted to lift heavy articles. As a result of the injury or injuries which he incurred during these incidents, Mr Juweinat suffered a permanent disability which has rendered him unable to perform heavy work, and which has, effectively, precluded him from carrying on his employment as a welder.
The first issue raised by the appellant is whether there was negligence on its part which contributed to the incidents in which Mr Juweinat was injured. This issue has been the subject of lengthy written submissions but was not the subject of further elaboration in oral argument. The written submissions point to the fact, inter alia, that the appellant provided lifting devices such as a forklift, a hand lifter and a trolley and that there were other workers available on the site who, it was said, would have been available to help Mr Juweinat.
The compelling factor in favour of Mr Juweinat’s case is that the evidence made it clear that heavy weights had to be moved and lifted and there was no particular system in place to ensure that workers were not injured. No training was given to them, and there was no supervision to ensure that workers did not lift weights which provided a risk to their backs. Evidence was given that, in the first incident, Mr Juweinat lifted a heavy v-shaped metal structure. In the second incident, he helped another employee move a wall oven, which Mr Juweinat estimated to be close to a hundred kilograms. In the third incident, Mr Juweinat assisted one of the principals move a steel beam weighing between eighty and one hundred kilograms.
Dr Anne Wyatt, an occupational health and safety consultant gave evidence on behalf of Mr Juweinat. She said that the risk of back injury increases significantly with objects above the range of sixteen to twenty kilograms and that, as weight increases from sixteen up to fifty five kilograms, the percentage of healthy adults who can safely lift, lower and carry the weight decreases. Dr Wyatt said that manual handling intervention programs were readily available and that employers in New South Wales were required to implement the Occupational Health and Safety (Manual) Handling Regulation 1991. She said that there was no evidence that the appellant had carried out the risk assessments and implemented the risk control measures required by the Manual Handling Regulation and by the National Manual Handling Standard and Code of Practice.
The trial judge accepted this evidence. It was not contradicted by either lay or expert evidence called on behalf of the appellant. His Honour was entitled to hold, as he did, that the appellant had failed to institute a proper system to ensure that its employees were not injured through the lifting and handling of heavy weights. This challenge to his Honour’s judgment fails.
The second aspect of the appellant’s appeal is the issue of damages. It was submitted that a principle enunciated by Handley, Beazley and Stein JJA in Woolage v The State of New South Wales [2001] NSWCA 256 was not applied in his Honour’s judgment. It should be noted that the judgment in Woolage was not issued until after the trial Judge had given his judgment. Morever, the case before the trial Judge was not litigated on the basis outlined in Woolage.
In Woolage, the plaintiff had suffered injury in two separate but identical incidents when a desk chair mounted on casters had moved away from him as he was about to sit down. In each case, he fell on the floor, landing on his coccyx. The statement of claim in that case is not set out in the judgment on appeal. In par 7, Beazley JA, with whom Handley and Stein JJA agreed, said:
“However the appellant sustained his injuries in two separate accidents, giving rise to two separate causes of action. He sued in respect of those separate causes of action and was entitled to separate awards in respect of each cause of action, assuming that each injury was compensable.”
The Court of Appeal set aside the judgment below on the ground that only one assessment of damages had been made, whereas the plaintiff was entitled to separate awards in respect of each cause of action. Their Honours held that the global award was incompatible with Part 5 of the Workers Compensation Act 1987 (“the Act”) and in particular Section 151G and H.
The submission in the present appeal is that, as Mr Juweinat relied upon three incidents, he necessarily relied upon three causes of action and that damages should have been assessed separately, in which case he would not, in respect of any cause of action, have reached the minimum degree of disability for which Section 151H of the Act provides.
In order to consider this submission it is necessary to consider the provisions of the Act in some greater detail. The following provisions are relevant:
“151       Common law and other liability preserved
This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides.
151E       Application – modified common law damages
(1)This Division applies to an award of damages in respect of:
(a)          an injury to a worker, or
(b)the death of a worker resulting from or caused by an injury,
being an injury caused by the negligence or other tort of the worker’s employer.
151F       General regulation of court awards
A court may not award damages to a person contrary to this Division.
151H      No damages unless permanent impairment of at least 15%
(1)No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%.
…..
(3)In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury.
(4)the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
It will be noted that none of these sections refers to “a cause of action”. The sections speak rather of “an injury” or “the injury”.
Very often there are available to an injured employee a number of possible ways in which the employee may frame the case which the employee wishes to put. Framed in one way, the result may legally be more beneficial to the employee than if framed in another. That was made clear, for example, in Zickar v MGH Plastic Industries Pty Limited (1995) 187 CLR 310, where it was held that an employee, who had suffered an injury falling within the terms of par (a) of the definition of injury in the Act, was entitled to make a claim for compensation in reliance on that paragraph notwithstanding that the injury also fell within par (b) of the definition of injury, a paragraph which required employment to be a contributing factor. At 328, their Honours, Toohey, McHugh and Gummow JJ, said:
“The appellant says that if there is personal injury as described in par (a) the inquiry need proceed no further. If there is not personal injury as described he must rely on par (b) in which case the question of employment as a contributing factor has to be considered. But, he says, the two paragraphs are not mutually exclusive, nor is par (b) to be read as limiting what otherwise would be within the reach of par (a); they simply provide two bases upon which a claim may succeed. The respondent answers that this approach involves an unwarranted fragmentation of the definition of injury. The definition must be read as a whole and if the worker has contracted a disease (and an aneurism is a disease) the worker must establish employment as a contributing factor.”
At 334, their Honours concluded:
“But the present case is not one of an autogenous disease. Or, to put it more accurately, it is not an autogenous disease upon which the appellant relies. It may be accepted that the aneurism was an autogenous disease but the appellant’s claim to person injury within par (a) is based on the rupture which occurred. From Dr Stening’s evidence, it is clear that the rupture of the aneurism was not inevitable and further that the rupture may have been minor, allowing the appellant, after treatment, to return to his previous occupation. If there was no rupture there would be no event answering the description of personal injury and the appellant would be driven to rely upon par (b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury.”
Kirby J, the other member of the Court in the majority, expressed the same conclusion when he said at 351-2:
“No longer is there a dichotomy between ‘personal injury’ in its full sense and ‘disease injury’ within the additional part of the definition. A worker is entitled to succeed if he or she can bring a claim within either head of recovery. Logically, the first question to ask, including in cases which might otherwise be classified as manifestations of a ‘disease’, is whether, notwithstanding that manifestation, the case falls within the primary definition of ‘injury’ as a ‘personal injury arising out of or in the course of employment’. In that context the word ‘injury’ should not be given a narrow meaning. It should have an ample application, in no way read down because Parliament, additionally, has provided a separate head of recovery for cases of work related diseases.”
The crux of their Honours’ judgment was that the worker was entitled to claim for the rupture of the aneurism, which had occurred at work, notwithstanding that the aneurism itself was part of an autogenous disease, to which the employment had not contributed.
In the present case, examinations in November 1999 showed that Mr Juweinat had suffered a disc bulge into the L3/4 right intervertebral foramen and that at the L4/5 level there was a broad based posterior disc bulge present. However, neither disc bulge affected or impinged upon a nerve root. The medical practitioners on both sides were in general agreement that Mr Juweinat suffered in the three incidents muscular ligamentous or soft tissue lesions. The general medical practitioner, Dr N. Romeo, described Mr Juweinat’s condition when he said:
“In summary, Nabil Juweinat had developed a sciatic back injury after lifting at work”.
Dr J.S. Scougall, orthopaedic surgeon, reported that Mr Juweinat had chronic soft tissue lesions in his low back and that those lesions were the cause for his back pain and the probable cause for the pain of rather ill-defined distribution in his legs. Dr Scougall noted that Mr Juweinat had made a recovery from two earlier documented episodes, in the late 1970s and in 1984, and said that:
“I believe it is very probable that subclinical, asymptomatic pathology, due to those episodes, was present prior to his commencing work at Leppingtons”.
Dr Scougall reported that:
“In regard to the cause for those low back lesions, the findings are consistent with the three episodes that had occurred at work, the first in March 1999 and the next two being as described above, being substantial contributing factors for the development of those low back lesions.”
Dr J.G. Bodel, an orthopaedic surgeon who reported to the appellant’s solicitors, said:
“This patient has had recurring episodes of pain in the back and he first had a significant injury in 1988. There was evidence of disc pathology at L4/5 at that time. The more recent investigations however show additional pathology at L3/4 and L4/5 and this has probably occurred in the accidents that happened at work in early 1998.
The patient has no objective sign of nerve root involvement at the moment and I would not recommend surgery.
The patient is not fit for work that requires repetitive bending, twisting or heavy lifting but he is fit for moderate manual tasks with a 12 kilogram lifting limit.
….
Long term he has a somewhat guarded prognosis.”
Dr R. Mellick, a consultant neurologist, who reported to the appellant’s solicitors said, inter alia:
“The symptoms described to me by Mr Juweinat came on during the lifting tasks as described above. The episodes of pain in 1999 occurred on a background of previous back pain resulting in three months absence from work in 1988.
….
It is likely that the pain he suffered between March and May 1999 was of a muscular ligamentous origin.
….
The existing clinical picture is that of a chronic pain syndrome without any diagnostic signs. The radiological findings do not identify any structural spinal abnormality resulting from a traumatic incident. The features which are evident in the MRI scan are age-related.”
Dr P.D. Clouston, a neurologist, who reported to the appellant’s insurer, also diagnosed a lumbar back sprain or soft tissue strain.
In substance, what Mr Juweinat suffered as a result of the three incidents at work was, as Dr Mellick described it, a chronic pain syndrome without any diagnostic signs. The medical reports spoke of musculo-ligamentous lesions or soft tissue lesions. Specific lesions were not identified and, presumably, were not identifiable. The doctors agree that there was underlying pathology, particularly as a result of trauma in 1988 or thereabouts, and that the further trauma which occurred in the three incidents in the appellant’s employment exacerbated the condition, making it symptomatic.
In my opinion, Mr Juweinat was entitled to claim as the injury for which he sought compensation the condition which resulted from the three incidents in the appellant’s employment.
Turning to the statement of claim, it appears that Mr Juweinat did make that claim. Although in paragraph 3 the statement of claim separately specified the three incidents relied upon, paragraph 4 alleged that, in the course of the employment, the nature and conditions of employment involved heavy and repetitive bending, carrying and lifting. Paragraph 5 listed particulars of negligence which were not differentiated as between the three incidents.
Paragraph 7 listed injuries. Again these were not separated as between the three incidents. In the statement later served pursuant to Part 9 Rule 27 of the Supreme Court Rules, the particulars of injuries and of continuing disabilities also did not distinguish in any way as between the three individual incidents at work. Although the particulars referred to the disc bulges, they also gave details of the respondent’s continuing disabilities. The medical evidence did not relate those disabilities to the disc bulges.
The case put on behalf of Mr Juweinat in the pleadings and at the trial was that he suffered an injury in the nature of chronic back and leg pain to which the three incidents at work contributed. That was how the claim was put at the trial and that was how the claim was dealt with by both parties during the trial, and by the trial judge in the course of his judgment. If Mr Juweinat suffered distinct injuries from distinct incidents at work, these distinct injuries were not identified. Senior counsel for the appellant conceded that the evidence was in “a totally unsatisfactory state” if the Woolage principle was to be applied.
In the circumstances, the challenge based on Woolage must fail. This was not a case in which damages for separate injuries were sought in reliance upon separate causes of action.
A late cross appeal, filed on the morning of the hearing, challenged his Honour’s assessment of damages. Mr G.B. Hall QC, senior counsel for the respondent, contended that his Honour erred in allowing a “cushion” of $75,000 for future economic loss. Mr Hall contended that his Honour found that the respondent had recovered from his earlier injuries and, as a result of the three incidents in his employment with the appellant, was incapacitated for work for 16.5 years, when he would attain the age of sixty five. Mr Hall submitted that an allowance of $249,517 should have been discounted by the usual 15 percent for vicissitudes. He submitted that the appellant had had the onus of establishing that Mr Juweinat’s pre-existing condition would have become symptomatic and disabling absent the three incidents in the appellant’s employment.
However, the medical reports show that Mr Juweinat had ongoing pathology as a result of earlier trauma, and, although the pathology was asymptomatic, it was continuing. His Honour was entitled to conclude that the respondent’s age and his back weakness contributed to the incidents. This is particularly so as the second and third incidents involved the lifting of articles by two people, one of whom was Mr Juweinat. There was no evidence that the other person involved in the lifting found difficulty with the task. His Honour was entitled to conclude that it was improbable that the respondent would continue working to age sixty five doing the type of work he was doing in the appellant’s employment. He was also entitled to take into account the fact that the respondent did not take steps to ensure that his back was not put at risk. The respondent did not resign from the appellant’s employment or from a subsequent employment which he obtained. In both cases the employer took the step of dismissing him.
As the allowance for future economic loss had to be made either by way of a buffer or by reference to a very substantial discount, it is difficult for an appellate court to interfere with the discretionary judgment of the trial Judge. There is no firm basis for a finding that his Honour erred. It can be seen from the allowance made for future economic loss that his Honour considered that Mr Juweinat was of an age when, with his underlying pathology, he was close to the end of his career in the field in which he worked. That conclusion was consistent with the evidence given by Dr Wyatt as to the effect of age on the lifting of weights and with the evidence given of Mr Juweinat’s underlying pathology.
In all the circumstances, I am not satisfied that his Honour’s allowance for future economic loss erred.
Mr Hall submitted that his Honour should have allowed 35 percent and not 30 percent of a most extreme case for non economic loss. The difference between the two percentages is too small to justify interference with his Honour’s assessment. I am not satisfied that his Honour erred in this assessment.

Mr Hall contended that the trial Judge’s allowance of $3,000 for future out of pocket expenses was inadequate. He contended for an allowance of $10 to $15 multiplied by 845 would be appropriate. However, the sum which his Honour allowed was a substantial sum. The only relevant evidence before him was that Mr Juweinat required ongoing therapy and would benefit from an exercise program. The evidence did not place any monetary sum upon this therapy. In my opinion it has not been shown that his Honour erred.
Mr Hall also raised a number of minor issues when he said the trial Judge erred in the assessment of damages. It should be noted however that his Honour gave an ex tempore judgment in which he outlined the principles upon which the verdict and judgment should be based. He asked counsel to calculate the precise sum to be awarded. He was informed by counsel that that sum was $181,397.44. His Honour gave judgment for that sum and reserved liberty to apply to alter the figure if found to be incorrect. Neither party applied pursuant to that reservation of liberty.
The minimum sums for which Mr Hall contends are:

Out of pockets	$ 1,000
Superannuation benefits	$ 21,034
Interest on past economic loss	_____705 _$22,739

All these sums are less in total than a sum of $33,600 which Mr Hall concedes should have been taken into account as worker’s compensation benefits paid by the appellant’s insurer.
It follows that there would be no justification for adjusting the sum awarded by the trial Judge. This is no doubt the reason why no application was made to the trial Judge pursuant to the liberty to reserve. I should repeat the point that the sum awarded was calculated by counsel, not by the trial Judge, and his Honour gave the parties liberty to return to him if, on reflection, it appeared that the calculation required correction.
For the reasons I have given, I am of the view that the appeal should be dismissed with costs. The cross appeal should be dismissed. As the notice of cross appeal was served at such a late stage and involved the appellant in no extra costs, I would make no order as to costs with respect to it.
FOSTER AJA: I agree with Davies AJA.

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LAST UPDATED: 17/07/2002