McDonald v Livestock Transport (Sydney) Pty Limited

[2003] NSWCA 166

CITATION:	McDonald v Livestock Transport (Sydney) Pty Limited [2003] NSWCA 166
HEARING DATE(S):	30 May 2003
JUDGMENT DATE:	27 June 2003
JUDGMENT OF:	Meagher JA at 1; Handley JA at 2; McColl JA at 3
DECISION:	1) Appeal allowed. 2) Set aside the judgment of the District Court as to quantum. 3) Remit the matter to the District Court for a rehearing limited to quantum. 4) Dismiss the Cross-Appeal. 5) Respondent to pay the appellant's costs of the Appeal and the Cross-Appeal, but to have a certificate under the Suitors' Fund Act 1951 in respect of the costs of the appeal, if qualified.
CATCHWORDS:	DAMAGES - inconsistent reasons - inconsistent assessment of damages - whether any pre-existing disabilities, pain and suffering were subsumed by a subsequent injury - D
LEGISLATION CITED:	Supreme Court Rules Part 51 Rule 23
CASES CITED:	Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Browne v Dunn (1894) 6 R 67 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd and Another (1991) 22 NSWLR 389 Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249 Jobling v Associated Dairies [1982] AC 794 Kempsey District Hospital v Thackham (1995) 36 NSWLR 492
PARTIES :	Paul David McDonald (Appellant) Livestock Transport (Sydney) Pty Limited (Respondent)
FILE NUMBER(S):	CA 40184/02
COUNSEL:	D.G.T. Nock SC (Appellant) W.P. Kearns SC/S.A. Fonti (Respondent)
SOLICITORS:	Stacks - The Law Firm (Appellant) CKB Partners (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5446/00
LOWER COURT JUDICIAL OFFICER :	Cooper DCJ

CA 40184/02
DC 5446/00

MEAGHER JA
HANDLEY JA
McCOLL JA

Friday, 27 June 2003

Paul David McDONALD v LIVESTOCK TRANSPORT (SYDNEY) PTY LIMITED

Judgment

1 MEAGHER JA: I agree with McColl JA.

2 HANDLEY JA: I agree with McColl JA.

3 McCOLL JA:

The Appeal and Cross-Appeal

4 The appellant brought proceedings in the District Court of New South Wales seeking to recover damages in relation to injuries he alleged he suffered whilst in the respondent’s employ. The respondent was found liable for his injuries. He was awarded $37,778 by Cooper DCJ. He appeals, by leave, complaining of the quantum of damages. The respondent cross-appealed – also complaining of the quantum of damages.

5 The appellant was employed by the respondent as a horseman and truck driver. In that employ, he was required to drive a truck with a defective driver’s seat over a period of some two years between 1996 and 1998. He drove the truck between seventy to eighty hours a week transporting horses within the Sydney area, to regional New South Wales and interstate.

6 He alleged that he suffered injury to his back as a result of the defective seat. Cooper DCJ accepted that he frequently complained to the respondent about the condition of the seat. His complaints went unheeded except for one occasion when there was an ineffective attempt at repair. His Honour found that the defective seat contributed to the appellant suffering from a painful back. Although there was controversy about the extent to which this was so, the medical evidence tendered by both parties supported the proposition that the defective seat would have had some effect in causing the appellant’s back condition. In those circumstances it was not surprising that his Honour found that in failing to repair or replace the seat when its defective condition was known, the respondent breached the duty of care it owed the appellant as his employer.

7 There was no challenge to his Honour’s finding on liability. Rather, the issue both on the appeal and on the cross-appeal concerned the quantum of damages. The appellant complains that it was too little. The respondent complains that it was too much. Their respective complaints neatly underscore the fundamental inconsistency in his Honour’s reasons for judgment.

8 The controversy between the parties arises from the manner in which his Honour dealt with an incident on 9 July 1999 when the plaintiff suffered pain in his back after lifting a truck loading ramp while in the employ of a subsequent employer. His Honour held that that incident was a totally fresh injury, which completely subsumed any pre-existing disabilities, pain and suffering the appellant had suffered from the defective seat in his truck.

9 The consequence of this conclusion, according to his Honour was that the effect of the defective seat on the appellant’s medical condition ceased in July 1999. In other words, whatever the appellant suffered after that date was not a result of the defective seat, nor did the defective seat materially contribute to it. Rather, it was totally caused and contributed to by the incident of lifting the loading ramp on 9 July 1999.

10 As a result his Honour assessed the appellant’s non-economic loss in respect of the back condition attributable, on his findings to the defective seat only for the period from June 1996 until July 1999. [1]

11 Having awarded non-economic loss for the period to which I have referred, his Honour then dealt with the assessment of damages in relation to the appellant’s complaint that, as a result of the effects of the defective seat, in December 1998 he had had to stop a second job he held as a part time security officer and doorman. His Honour allowed the appellant a sum for loss of wages for the second job for the period from 1 January 1999 to 9 July 1999.

12 He then considered what allowance should be made for future diminution of earning capacity. He held that prior to 9 July 1999 the appellant had a residual work capacity and was able to continue with his work driving horse transports but that his work capacity was diminished to the extent that he was unable to continue with his second job. He then posed the following question:

“Whether (the appellant) is entitled to future economic loss in respect of the second job on the ground that his work capacity was diminished by the defective seat, or no allowance should be made in the light of his greatly increased incapacity arising out of the lifting incident in July 1999.”

13 His Honour then held, applying Jobling v Associated Dairies [1982] AC 794, that the appellant was entitled to have included within his damages an allowance for that part of his diminished earning capacity in the future as related to his inability to work as a security officer and doorman. His conclusion in this respect was based on his finding that as at 9 July 1999 and continuing indefinitely thereafter the appellant’s earning capacity was diminished by reason of the defective seat to the extent of his being unable to work at his second job.

14 As will be apparent this finding and his Honour’s finding set out in para 6 are fundamentally inconsistent. The respondent conceded as much when its counsel frankly acknowledged that it was difficult to support his Honour’s findings. That concession was properly made. The two findings cannot stand together.

15 The appellant submitted that his Honour’s second finding was such that, he should have found the injury from the defective seat continued to affect the appellant generally rather than only in relation to his diminished earning capacity in relation to his second job.

16 He further submitted that his Honour fundamentally erred in finding that the injury of 9 July 1999 was a totally fresh injury. Rather, he submitted his Honour should have considered the appellant’s loss caused by the defective seat on the basis that it continued after 9 July 1999.

17 The respondent, on the other hand, by its Notice of Cross-Appeal sought to rely upon his Honour’s finding concerning the 9 July 1999 incident to submit his Honour ought to have found that that incident was an intervening vicissitude of life which also destroyed the appellant’s ability to earn income in his second job as a security officer and doorman.

The evidence

18 After reviewing the evidence, his Honour held that he was satisfied on the balance of probabilities of the following points:

(1) This unfortunate plaintiff has a constitutionally degenerative spine, particularly at the three lower levels.
(2) Because of this he was far more vulnerable to injury from postural awkwardness than would be the case of a man in his mid 20s with a normal spine.
(3) Because of this constitutional condition the defective seat and the resulting postural strains caused a spine which was hitherto symptom free to demonstrate quite severe symptoms progressively over the period from about mid 1996.
(4) The symptomatology fluctuated. It came to a head initially on 9 July 1997 when the plaintiff was treated ultimately by physiotherapy which, whilst not completely resolving his problems, enabled him to continue with regular work duties.
(5) The condition resulting from the defective seat continued until the relapse in January 1998 due to his having to drive the truck with a defective seat for long hours to attend the Magic Millions horse sales on the Gold Coast.
(6) In February 1998 a CT scan showed prolapse of the L3-L4 discs with no nerve root compression. Dr Bentivoglio considered that this scan was unremarkable.
(7) This aggravation was due to the defective seat and kept him off work until 16 March 1998. The defective seat was replaced with a good one in about March 1998.
(8) However, the damage had already been done and the plaintiff continued to have pain and difficulties. He continued with his work up until 9 December 1998 when there was a further aggravation. He was then off work undergoing physiotherapy until 16 December 1998 and physiotherapy continued after that date.
(9) The effects of the defective seat continued up until 9 July 1999. Between December 1998 and July 1999 the plaintiff was able to keep working, albeit with continuing back pain.
(10) On 9 July 1999 the plaintiff was lifting the loading ramp door on the truck. The weight in all probabilities was over 50 kilograms. He then felt a sudden stabbing pain. Since then his condition has been very much worse than it was before that date.
(11) Dr Bentivoglio points out that the MRI scan of 3 August 19 revealed considerably more damage to the discs of the lumbar spine than were shown in the previous CT scan.
(12) The injury of 9 July 1999 caused considerably worse symptoms than the plaintiff had experienced beforehand. He was off work for some six weeks and thereafter his work capacity and general capacity have been considerably reduced.

19 These findings formed the basis of his Honour’s conclusion that the effects of the defective seat had ceased on 9 July 1999. His Honour held that the respondent had discharged the evidentiary onus to show that any aggravation of a pre-existing condition due to the defective seat had ceased by 9 July 1999.

20 The appellant criticised his Honour’s conclusion in this respect on the basis of lack of reasons. The respondent points out that his Honour’s conclusion was reached after he had referred to a considerable body of evidence in the case upon which it had relied and that his conclusion was based on that evidence. I accept that his Honour’s conclusion was expressed after his review of the evidence and that the “no reasons” ground should fail.

21 I have reviewed the medical evidence which was tendered by consent. None of the doctors were cross-examined. The medical reports do not support the conclusion that the 9 July 1999 incident was a totally fresh injury which completely subsumed any pre-existing disabilities, pain and suffering.

22 Doctor Ben Venkatesan, the appellant’s treating doctor, referred to the incident on 9 July 1999 as being “the next relapse”. Doctor Bentivoglio, a Neuro-surgeon qualified by the appellant’s solicitors first saw the appellant on 24 February 1998 and next on 3 August 1999 when he reviewed an MRI scan which revealed more damage to the discs in the appellant’s lumbar spine then had a CT scan Doctor Bentivoglio had reviewed in February 1998. He opined that the MRI findings were “quite in keeping with [the appellant’s] mechanical back pain symptoms” and that the appellant had a “significant back problem at multiple levels … contributed to by having to sit on a broken truck seat for many months”. In a report to the appellant’s treating doctor of 5 August 1999, Doctor Bentivoglio opined that the problem the appellant had with his truck seat “is a major contributing factor to this multi-level degenerative disc problem”.

23 His Honour observed that Doctor Bentivoglio did not refer in his report to the 9 July 1999 incident. He made a similar observation in relation to a report from Dr Faux, a Consultant Rehabilitation Physician who was also qualified by the appellant’s solicitors. While he did not expressly state that his interpretation of those doctors’ opinions was affected by their lack of reference to the 9 July 1999 incident, it appears from his Honour’s enumerated findings that he rejected their opinions that the appellant’s back problem was attributable to driving sitting on a defective seat. Rather, he inferred both from the nature of the pain the appellant suffered on 9 July 1999 and the results of the MRI scan that that supported his conclusion concerning the subsuming effect of the 9 July 1999 incident.

24 The appellant submitted that it was not open to his Honour to draw any adverse conclusion concerning the absence of any reference to the 9 July 1999 incident in the reports when nothing had been put to the appellant about it in cross-examination. The respondent submitted that the fact that the appellant was not cross-examined or asked in chief about the history he gave to the doctors concerning the incident of 9 July 1999 demonstrated that the parties were proceeding on common ground, namely that the history was not given to Dr Bentivoglio or Dr Faux.

25 The appellant’s submission must be correct. If it was intended to submit that the appellant had concealed the 9 July 1999 incident from two doctors in a way which materially affected their opinion of the cause of his disabilities, it was essential that that proposition be put to him in cross-examination: Browne v Dunn (1894) 6 R 67; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16. This is not a case where it was incumbent upon the appellant’s counsel to put questions in chief to the appellant about the history he gave to doctors particularly in circumstances where the appellant had clearly given the relevant history to the respondent’s doctors: cf Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd and Another (1991) 22 NSWLR 389 at 418 – 419.

26 Moreover, the respondents’ doctors who expressly referred to the 9 July 1999 incident did not regard it as a subsuming incident of the nature of that found by his Honour.

27 Doctor Rushworth, a Consultant Neuro-Surgeon qualified by the respondent who was aware of the July 1999 incident described it as an episode that aggravated the appellant’s already symptomatic back. In his opinion it was the appellant’s truck driving occupation that had caused the appellant’s pre-existing condition to become symptomatic. While he attributed the substantive proportion of the appellant’s back impairment to idiopathic degenerative disease, he nevertheless attributed a portion of his impairment to truck driving while employed with the respondent.

28 Doctor Bornstein, another doctor qualified for the respondent who it is tolerably clear obtained a history of the 9 July 1999 incident opined that the appellant had multi-level disc problems and suffered from mechanical backache and referred to the lifting incident in 1999 as an aggravation of his underlying problem. Significantly, as the appellant pointed out, the report provided no basis for a finding that the effects of the 9 July 1999 incident subsumed the pre-existing incapacity.

29 While it is true that the appellant described the nature of the pain he experienced after the 9 July 1999 incident as of a different nature to that previously experienced, no medical evidence before his Honour supported the conclusion that that incident had subsumed the effects of the defective seat.

30 I accept the appellant’s submission that there was no evidence before his Honour that could support the conclusion that the 9 July 1999 incident totally subsumed the effects of the defective seat.

Cross-Appeal

31 The cross-appeal complained that Cooper DCJ was in error in failing to find that the 9 July 1999 incident was an “intervening vicissitude of life which destroyed [the appellant’s ability] to earn income in a second job as a security officer and doorman” and in finding that he had suffered an impairment in his earning capacity after that date as a consequence of the injury caused by the use of the defective seat.

32 For the reasons I have already set out in dealing with the appeal, his Honour erred in concluding that the 9 July 1999 incident was an intervening vicissitude which subsumed any earlier injury. For that reason the cross-appeal must fail.

Conclusion

33 The evidence did not support his Honour’s conclusion that the 9 July 1999 incident subsumed the appellant’s pre-existing pathology. His Honour’s conclusion that it did has occasioned a substantial wrong or miscarriage within the meaning of SCR Pt 51 r23.

34 Counsel for the appellant acknowledged that if the appeal was successful, it would be necessary to remit the matter to the District Court for rehearing limited to quantum because of complexities relating to worker’s compensation payments the appellant was receiving. [2] Counsel for the respondent did not dispute that proposition.

35 In my view Counsel were correct in agreeing that if the appeal was upheld the case was a proper one for a new trial and that the Court should not embark upon the exercise of trying to assess the appellant’s damages for itself.

36 I would make the following orders:

1) Appeal allowed.

2) Set aside the judgment of the District Court as to quantum.

3) Remit the matter to the District Court for a rehearing limited to quantum.

4) Dismiss the Cross-Appeal.

5) Respondent to pay the appellant’s costs of the Appeal and the Cross-Appeal, but to have a certificate under the Suitors’ Fund Act 1951 in respect of the costs of the appeal, if qualified.

Endnotes:

[1] It is not clear why his Honour selected June 1996 as the commencement date for his assessment of non-economic loss as it appears to have been in early 1996 when the appellant first noticed pain apparently attributable to driving the truck with the defective seat. However, the appellant did not complain about that commencement date.

[2] See Kempsey District Hospital v Thackham (1995) 36 NSWLR 492; Franklins Self Serve Pty Ltd v. Wyber (1999) 48 NSWLR 249.

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Last Modified: 07/10/2003