Maryborough City Council v Warner
[1998] QCA 392
•24/11/1998
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 3146 of 1998
Brisbane
[City of Maryborough v Warner]
BETWEEN:
THE COUNCIL OF THE CITY OF MARYBOROUGH
(Defendant) Appellant
AND:
LESLIE JOSEPH WARNER
(Plaintiff) Respondent de Jersey CJ McMurdo P White J
Judgment delivered 24 November 1998
Separate reasons for judgment of each member of the Court each concurring as to the orders made.
APPEAL DISMISSED WITH COSTS TO BE TAXED
CATCHWORDS: NEGLIGENCE - damages - quantum - found totally incapable of
working - conflicting expert opinions - gap in reasons for judgment
House v. The King (1936) 55 CLR 499
Norbis v. Norbis (1986) 161 CLR 513
Calder v. Boyne Smelters Ltd [1990] 1 Qd R 325Counsel: Mr P. Keane Q.C. for the appellant.
Mr J. Webb for the respondent.Solicitors: Bain Gasteen as town agents for Bell Dixon Butler for the appellant.
R.J.Suthers for the respondent.IN THE COURT OF APPEAL [1998] QCA 392 SUPREME COURT OF QUEENSLAND Appeal No. 3146 of 1998
Brisbane
Before
de Jersey CJ McMurdo P White J
[City of Maryborough v Warner]
BETWEEN:
THE COUNCIL OF THE CITY OF MARYBOROUGH
(Defendant) Appellant
AND:
LESLIE JOSEPH WARNER
(Plaintiff) Respondent
REASONS FOR JUDGMENT - de JERSEY CJ
Judgment delivered 24 November 1998
1 The learned District Court Judge who conducted the trial of this claim for damages for
negligence in the workplace concluded that the respondent suffered “some insult to his spine”, leading
to the acceleration, by some five to seven years, of an incapacity for work - which would otherwise
have ensued because of natural degenerative changes. The respondent had been employed as a
labourer by the appellant council. The events giving rise to his injuries were not startlingly suggestive
of liability: using a pick while adopting an awkward stance in a confined space, shifting bulky and
“perhaps weighty” portable traffic bridges, rolling up barricades, trowelling concrete in conjunction
with a kerbing and channelling machine. But the appellant admitted liability, and it fell to the judge
only to assess quantum.2 The learned judge heard evidence from three doctors. After an apparently close analysis,
he said that he “largely preferred” the opinions of Dr MacFarlane. Dr MacFarlane took the view
that the respondent had suffered a 5 per cent overall disability, of which half could be related to his
work, the other half being “due to age and degenerative change”. (The respondent was 41 years
old when injured.) The difficulty about the case arises because although Dr MacFarlane said quite
plainly that the respondent “is fit for light to medium manual work” (with the qualification that it would
be reasonable for him to seek lighter work in the future), and the judge quoted these parts of Dr
MacFarlane’s reports in his judgment before saying he largely preferred Dr MacFarlane’s opinions,
the judge went on to assess damages on the basis that for that five to seven year period (his Honour
selected six years) the respondent was, because of these injuries, rendered totally incapable of
working.
3 The judge awarded $65,500 for past economic loss including interest, and $85,000 for the
future (based on the 3.6 years of the six years still to run as at the date of trial). He also allowed
$22,000 for pain and suffering. The ground of appeal is that the amount of each of those
components is manifestly excessive, beyond the limits of a sound discretionary judgment. As the
case was argued, Mr Keane, QC, who appeared for the appellant, contended that the maximum
amounts which should have been allowed were, respectively, $20,000, $20,000 and $12,000.
4 If the judge was right to assess damages on the basis of a total incapacity for work for those
six years, referable to these injuries, then the basis for the challenge to the assessment disappears
- subject perhaps to some muted quarrel with the amount allowed for pain and suffering. I should
say at once that if the judge was right in that way, then the allowance for pain and suffering is not,
in my view, susceptible of real challenge. What emerged as the real issue on the appeal is indeed
whether the judge was right to proceed on that basis.
5 The only support for a conclusion that the respondent was incapacitated for work over that
period comes from the respondent’s own evidence, which the judge fully accepted, read with the
evidence of one of the specialist doctors, Dr Watson. Dr Watson took the view that the
degenerative change was located elsewhere than the region of the respondent’s disabling pain. That
doctor was therefore content to attribute the incapacity, which he regarded as permanent, to the
injuries sustained at work. On the other hand, Dr MacFarlane, whose evidence the judge said he
“largely preferred”, saw those injuries as merely having accelerated a disability which would have
eventuated anyway because of natural degeneration, over some five to seven years, but significantly
that doctor regarded it as a limited disability anyway. As he put it, in his written report:
“He is fit for light to medium manual work. In the future however it would be reasonable for him to seek lighter jobs than he has done previously. He is however fit for factory work, work in the meatworks on a labouring basis, possibly driving the cattle through the yards, as a storeman packer or driving a truck.”
6 When questioned at the trial, Doctor MacFarlane gave this evidence on which the judge has
at least partly relied:
“What has then been the effect of these incidents on that scenario? I believe that it has brought forward the time in which he has to do lighter work by some years. Possibly in the vicinity of maybe five to seven years.”
7 Yet, as has been seen, the judge assessed damages on the basis that these injuries had
destroyed the capacity for work for six years, excluding any capacity for “lighter work”. Mr Webb,
who appeared for the respondent, sought to explain this by reference to his Honour’s having only
“largely” accepted Dr MacFarlane. Mr Webb submitted that his Honour is to be taken as having
rejected Dr MacFarlane’s view that the respondent remained able to do “lighter work” - or indeed,
he would add, in terms of the report, light to medium manual work, factory work, labouring work in the meatworks, possibly driving cattle, as a storeman packer, or truck driving.
8 These possibilities were put to the respondent during his examination, and he virtually
excluded them. As I have indicated, the judge accepted the evidence of the respondent. The
respondent relies additionally then on the following evidence of Dr Watson, available to this extent,
it was contended, because the judge only “largely” accepted the evidence of Dr MacFarlane:
“He has had a lifetime of increased thoracic kyphosis with stiffness but with he claims no pain until the specific incidents described. Each of the separate earlier such accidents settled with physiotherapy in time (days to a week or two) with only ongoing stiffness. The last incident has caused chronic ongoing painful disability.
The presence of the cervicodorsal region pain is common in association with symptomatic dorsal kyphosis due to the increased scoliosis to compensate for the inferior kyphosis and consequently the increased strain placed upon the junctional area. The longstanding kyphosis would certainly have predisposed him to the development of a chronic strain pattern at the apex of this spinal curve but there is nothing from the radiological reports that I have seen which suggest that there was a degenerative change at this level sufficient to be a major predisposition and I feel that once there was a suggestion of the development of intermittent problems that he should have been protected from further repetitive bending and twisting activities which could theoretically have aggravated the problem.
There is no surgical solution and I doubt that any specific conservative measure will influence the natural history of his pain problem which will now as likely deteriorate with time as improve and it is highly likely that it will prevent him undertaking any meaningful physically orientated employment in the future.”
9 As will be seen, Dr Watson excluded any residual capacity for even light work, and thereby
differed from Dr MacFarlane. Although his Honour quoted Dr MacFarlane’s contrary opinion on
this aspect before saying he largely preferred his views, he made no reference at that point in his
judgment to Dr Watson’s different view.
10 If the appellant’s contention were to prevail, the allowance made for these three components
should be reduced substantially. But I have reached the view that to disturb the judgment would be
inconsistent with the approach this appellate court should take. That is because there is evidence,
which the judge has not clearly rejected, which sufficiently supports his judgment.
11 The residual query in the case concerns his Honour’s stated preference for the evidence of
Dr MacFarlane, the judge’s reliance on Dr MacFarlane’s evidence as to the five to seven years
acceleration - without, however, adding the doctor’s specific reference to a residual capacity for
lighter work, and the judge’s failure to deal directly in his judgment with what has emerged as the
critical issue on appeal: whether his Honour did indeed intend to accept Dr Watson’s view that the
respondent was totally incapable of working, while rejecting Dr MacFarlane’s view as to there being
some residual capacity, although he “largely” nevertheless preferred Dr MacFarlane’s opinions.
12 It is unfortunate that his Honour did not expressly deal with this point. I have considered
whether we should remit the case to the judge for further elucidation of his reasons. I am satisfied,
however, that to do so would simply increase the appellant’s costs unnecessarily, because I am
confident his Honour would, if asked, confirm reliance on that evidence from Dr Watson - and that
was a course open to him. That circumstance must therefore be determinative of this appeal against
the appellant. I am confident that the judge must have relied in that regard on the evidence of Dr
Watson because it provides the only justification for the one ultimately unclear aspect of an otherwise
apparently careful judgment. I am therefore prepared to accept that the judgment is saved, in effect,
by the judge’s reference to (only) “largely” having accepted the opinions of Dr MacFarlane.
13 The case illustrates the need for reasons for judgment which cover all possibly contentious
points. The gap in these reasons has led to waste of the appellant’s time, money and effort. That
could have been avoided had this issue been covered in the judgment, or indeed had counsel at the
trial - as the judge invited - adverted at once to the deficiency. I say “at once”: there would no doubt
have been no difficulty with the parties approaching the judge even subsequently, after mature consideration of the reasons for judgment, for elucidation on the point, prior to the appeal being
progressed. I am sure his Honour would then have obliged with the further necessary explanation.
14 But my having said that, the appeal must in the result be dismissed, with costs to be taxed.
Hearing Date: 16 November 1998 IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No.3146 of 1998
Brisbane
Before
de Jersey CJ McMurdo P White J
[City of Maryborough v Warner]
BETWEEN:
THE COUNCIL OF THE CITY OF MARYBOROUGH
(Defendant) Appellant
AND:
LESLIE JOSEPH WARNER
(Plaintiff) Respondent
REASONS FOR JUDGMENT - WHITE J
Judgment delivered 24 November 1998
The respondent sued the appellant for damages for negligence in respect of a number of work
related incidents from 1993 to 1995. Liability was not in issue at the trial.
The respondent, who was born in 1954, had been employed by the appellant as a labourer for
about six years and had previously generally found his employment in the labouring field. In a series of
incidents between 1993 and 1995 he had experienced pain in the top of his back in the area between
his shoulder blades whilst working. He had several weeks off work in respect of the earlier incidents and was able to return to his previous duties after rest although experiencing some intermittent pain. He
experienced much more severe pain after the fourth incident in November 1995 and although he
attempted to return to his employment he found the work too heavy and has not worked since. He had
suffered from degenerative changes in his thoraco-lumbar spine and from thoracic kyphosis,
symptomless until 1991 when he experienced some episode at work not the subject of a claim in these
proceedings, which was productive of temporary mid thoracic pain.
The learned trial judge was in receipt of reports from three medical specialists, each of whom
gave evidence by telephone at the trial. They were not in agreement in respect of a number of important
matters about the respondent. His Honour accepted the respondent’s evidence completely and in
particular that he had been unable to work, in effect, since the last incident. His Honour said that he
“largely” preferred the evidence of Dr MacFarlane, an orthopaedic specialist. He rejected the opinion
of Dr Khursandi, also an orthopaedic specialist, about the respondent’s injuries and the consequences
of them. Although he did not say so expressly, there is an impression that his Honour may have
accepted the opinion of Dr R Watson, a specialist in rehabilitation medicine.
The learned trial judge concluded that the respondent was totally incapacitated for work from
the end of November 1995 contrary to the opinions of Dr MacFarlane (and Dr Khursandi), but
consistently with that of Dr Watson and it is this approach which founds the appellant’s contention that
the award of damages is manifestly excessive. Dr MacFarlane suggested that the respondent’s disabling
symptoms had been advanced by between 5 and 7 years by the work related injuries from what would
otherwise have been the course of his naturally occurring spinal disease. On this evidence his Honour
assessed the respondent’s damages for pain and suffering at $22,000, his past loss of income at
$60,000 and his loss of future earning capacity for 3.63 years (taking a median period of 6 years from
November 1995) at $85,000.In order to consider the appellant’s submission that his Honour fell into error in finding that the
respondent was totally disabled for work it is necessary to examine the evidence of the three specialists.
Dr Khursandi concluded that the respondent’s ongoing problems were referable to the
degenerative disease in his spine and not to the work related injuries essentially because the x-ray
evidence of degenerative disease was quite significant. He wrote:
“In my opinion, the symptoms Mr Warner presented with on 15/11/95 were transient and brought on by the aggravation of his pre-existing degeneration of the thoracic spine, due to the accident of 1/11/95. I am also of the opinion that this aggravation would have been temporary and anticipated its resolution within a month of onset.
With regard to his prognosis, because of the degeneration of his spine, one cannot rule out the possibility of him developing recurrent back aches if he continues with his job as a concreter or any other profession which involves heavy manual duties such as using a shovel, digging, bending forwards and lifting heavy objects and driving heavy vehicles over long distances.” (exhibit 7)
His Honour rejected this opinion in light, he said, of the opinions of Dr MacFarlane and Dr Watson.
Dr Watson observed of the pain experienced by the respondent that it was located in the middle
of his longstanding dorsal kyphosis and to a lesser extent at the back of his neck. Neither of these areas
showed degenerative change on x-ray - that was in the lower thoracic spine. Dr Watson noted that
although the lordosis in the respondent’s neck would predispose him to lower neck pain, that pain only
became manifest after he experienced mid thoracic pain from the work incidents and was unlikely to
have caused a major problem. He concluded that the kyphosis predisposed the respondent to the onset
of pain but that his work circumstances caused it.
His Honour regarded Dr Watson’s report as the most comprehensive of those before him. He
noted that Dr Watson concluded that it was “highly likely that it [the natural history of his pain problem]
will prevent him undertaking any meaningful physically orientated employment in the future”.
His Honour noted that Dr MacFarlane expressed a different view. His diagnosis was of a
chronic strain or sprain of the vertebrae of the left scapular together with mild osteo-arthritis of the
thoraco-lumbar spine and mild curvature of the thoraco-lumbar spine and a mild kypho-scoliosis. He
expressed the opinion, referred to by his Honour, that most of the respondent’s problems were
degenerative and any disability related to work was small. He assessed the respondent’s overall
disability at 5% of the whole person of which possibly half could be attributed to his work with the
remainder due to age and degenerative change. He noted that some of the respondent’s pain was due
to the curvature of his spine, not work related.
His Honour noted Dr MacFarlane’s opinion that the respondent was then fit for light to medium
manual work and that in the future it would be reasonable for him to seek lighter jobs. He did not refer
to the passage in his report immediately following in which Dr MacFarlane suggested that the
respondent was:
“... however fit for factory work, work in the meat works on a labouring basis, possibly
driving the cattle through the yards, as a store man packer or driving a truck.”
What his Honour seized upon was Dr MacFarlane’s evidence that without the work-related injuries he
would have expected him to continue concreting for some years but not to age 65 because of the
degenerative changes in his spine. In his later years Dr MacFarlane would have expected him to have
given up concreting and to have gone on to lighter work. He suggested that the effect of the work-
related injuries had been to bring forward the time at which he would have to do lighter work by some
years, possibly in the vicinity of 5 to 7.
His Honour noted that in evidence Dr MacFarlane agreed that initially he would have expected the strains to have recovered with rest and some treatment such as physiotherapy, but that since he hadhad several incidents it had become “a more permanent matter”.
It is convenient to summarise medical evidence which was to the following effect:
Dr Khursandi
• The respondent had suffered a temporary aggravation of the pre-existing degeneration of his thoracic spine by the November 1995 incident which would have settled after about a month and thereafter his symptoms were wholly referable to the natural progression of his disease. • He should avoid heavy labouring work in the future. Dr MacFarlane
• The respondent had suffered a strain or sprain of the vertebral muscles of the left scapula. • Most of his problems were degenerative and any disability relating to work was small. • Half of his present disability of 5% of the whole person was attributable to his work. • The accidents at work had advanced the symptoms of his disease by 5 to 7 years. • He was fit for light to medium work, which he specified, with light work in the future. Dr Watson
• The respondent’s symptoms were referable to work related injuries operating upon his kyphosis not a degenerative disease in his lower thoracic spine. • He was incapable of any physical work.
His Honour concluded that it was very difficult to resolve the differences between the experts. His Honour had put to one side Dr Khursandi’s opinion which he was entitled to do. He was then faced with two conflicting opinions as to the basis for the respondent’s pain. “At the end of the day”
he “largely prefer[ed] the opinions expressed by Mr MacFarlane”. He concluded that in the four
incidents with which he was concerned there had been some insult to the respondent’s spine which
resulted in him suffering the problems which he then did without specifying the mechanics of how that
occurred. Relying on Dr MacFarlane’s evidence he concluded that these problems occurred earlier
than otherwise would have been the case. Contrary, however, to Dr MacFarlane’s opinion, his Honour
held that:
“... he has been, in my view, rendered virtually unable to work since that time and that
in itself is 5 to 7 years earlier than may otherwise have been the case.”
His Honour does not state that he rejected Dr MacFarlane’s opinion on this matter or why. He
does not say that he accepted Dr Watson’s opinion in respect of the respondent's capacity to work.
He did accept the respondent’s evidence that he had tried to look for work of the kind mentioned by
Dr MacFarlane on a number of occasions but either could not find particular work or was unable to do
it or rejected it out of hand as something which he could not do.
Since his Honour expressly accepted the respondent’s evidence that there was no available
work which he could perform and described him as totally incapacitated for work, he must be taken
to have rejected Dr MacFarlane’s opinion that there was a range of medium to light manual work which
he could carry out. In the end, it must, I think, be assumed that his Honour was supported in this
conclusion by Dr Watson’s opinion. To approach the resolution of the issue in that way was not
unreasonable in the sense considered in House v The King (1936) 55 CLR 499 although it has made
the resolution of the appeal more difficult. Neither does his Honour's judgment reveal “the existence
of an error, whether of law or fact” per Mason and Deane JJ in Norbis v Norbis (1986) 161 CLR 513
at 519.
Accordingly it seems to me that the appeal must fail. In that result, although the amount awarded
for pain and suffering is on the high side, and the discounting for contingencies modest, it was not outside
the exercise of a sound discretionary judgment and ought not be altered, Calder v Boyne Smelters Ltd
[1990] 1 Qd R 325.
I would agree with the orders proposed by the Chief Justice that the appeal be dismissed
with costs.
0
2
0