Paul Bernard Farrell v Woolworths Limited
[2002] ACTCA 4
PAUL BERNARD FARRELL v WOOLWORTHS LIMITED
[2002] ACTCA 4 (19 September 2002)
CATCHWORDS
NEGLIGENCE – appeal – appeal from Master – whether impression of plaintiff as truthful was too fragile a basis on which to accept plaintiff’s account of injury – whether account of injury inconsistent with facts otherwise proved – it was.
Supreme Court Act 1933, s 32
Warren v Coombes (1979) 142 CLR 531
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306
Abalos v Australian Postal Commission (1990) 171 CLR 167
Howitt-Steven v Unisuper Ltd [2002] FCAFC 272
Wilson v Peisley (1975) 7 ALR 571 at 574
Malec v J C Hutton (1990) 169 CLR 638
Luntz, Assessment of Damages for Personal Injury and Death (4th ed) at 169-170
ON APPEAL FROM THE MASTER
No. ACTCA 4 of 2001
No. SCA 70 of 2001
Judges: Miles CJ, Crispin P and Gray J
Supreme Court of the ACT
Date: 19 September 2002
IN THE SUPREME COURT OF THE ) No. ACTCA 4 of 2001
) No. SCA 70 of 2001
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MASTER
BETWEEN:PAUL BERNARD FARRELL
Appellant
AND:WOOLWORTHS PTY LIMITED ACN 000 014 675
Respondent
ORDER
Judges: Miles CJ, Crispin P and Gray J
Date: 19 September 2002
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
The cross-appeal be allowed.
The judgment and order of the Master be set aside and in lieu thereof there be judgment for the respondent.
There be no order as to costs of the appeal or of trial unless written submissions are received within seven days.
IN THE SUPREME COURT OF THE ) No. ACTCA 4 of 2001
) No. SCA 70 of 2001
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MASTER
BETWEEN:PAUL BERNARD FARRELL
Appellant
AND:WOOLWORTHS PTY LIMITED ACN 000 014 675
Respondent
Judges: Miles CJ, Crispin P and Gray J
Date: 19 September 2002
Place: Canberra
REASONS FOR JUDGMENT
MILES CJ:
This is an appeal by the plaintiff/appellant against the quantum of damages awarded by the Master and a cross-appeal by the defendant/respondent against the Master’s finding of liability and also against the quantum of damages awarded.
It is convenient to deal first with the cross-appeal on liability. The primary facts are disputed but it is conceded on behalf of the defendant that, if proved, and vague as they were, they give rise to an inference of negligence on the part of the defendant. In that sense the situation is the reverse of that in Warren v Coombes (1979) 142 CLR 531 in which the High Court applied the principles that the advantage of the trial judge in seeing and hearing witnesses means that an appellate court will not likely interfere with the trial judge’s findings of primary fact that depend upon the credit of witnesses, but the appellate court is in as good a position as the trial judge to draw inferences from the primary facts found, including an inference that the facts show negligence on the part of the defendant. Similar statements or statements to similar effect have been made in more recent cases including State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306. In that case the High Court emphasised that an intermediate appellate court should not avoid discharging its duty by placing too much emphasis on the advantage of the trial judge. In the judgment of the majority (Gaudron, Gummow and Hayne JJ) it was said at 321 that the trial judge’s impression of a witness was “too fragile a base” to support a finding that the witness was unreliable when proper regard was given to confirmatory evidence, largely unchallenged. Kirby J, at 322, stressed the danger of attaching too much importance to the words of restraint expressed in Abalos v Australian Postal Commission (1990) 171 CLR 167 and thereby allowing those words to deflect the appellate court from its duty.
The plaintiff claimed that he was injured when he was carrying two cartons of beer in a narrow passageway between stacked pallets at the defendant’s supermarket at Mawson and hurt his back. The plaintiff was firm, as the Master said, in his recollection that the incident occurred on Australia Day 1991 near the end of an evening shift. His evidence was also firm that he received instructions earlier in the evening from a supervisor, Mrs Venn, and that he reported his injury to a Mrs Harkham at the end of the shift.
Contrary to the plaintiff’s evidence, the Master found on other and uncontrovertible evidence that Mrs Venn was on leave and Mrs Harkham did not work on that day. The evidence also established that the first time he made any allegation of an incident at work on Australia Day 1991 was when he reported back pain at work in January 1992. In the meantime he had had the opportunity to raise the matter on at least five occasions when he had consulted doctors.
When the plaintiff consulted his family doctor in February and March 1991 he made no complaint of back pain at all. When he first complained of back pain to the locum, Dr Ette, on 17 April 1991, he made no reference to an incident. The doctor’s entry reads: “Low back pain sharp on and off. Not affected by exercise. Pain in back of legs. Sore throat as well.”
The plaintiff’s only report of injury to his employer was that in January 1992, one year after the incident he alleges. At some stage he also made a complaint of back pain to Mrs Harkham, but she was unable to say whether that complaint was before or after January 1992. It was, in any event, not on or about 26 January 1991 and it was not made in reference to any particular incident.
On those facts the Master concluded as follows:
“Taking all of the evidence into account, I am satisfied that the plaintiff did in January 1991 sustain damage to the disc at L5/S1.”
In the light of the foregoing established facts, the defendant challenges the Master’s finding that the incident occurred on the day and in the way the plaintiff claimed in his evidence. The question is then, in the light of the facts otherwise established and outlined above, whether the Master’s impression of the plaintiff as a witness of truth was too fragile a basis to support the finding that the plaintiff was injured on the day he claimed and in the manner he described. The answer depends on a very fine balance. Ultimately, it seems to me that in the ordinary course of human affairs an injury like that allegedly sustained by the plaintiff would be so remarkable that in the absence of explanation it would be likely that the person suffering the injury would tell somebody about it, and in particular would mention it to a doctor when complaining of back pain some three months later. The fact that he did not mention any incident to anyone else until a year later invites real scepticism about whether it happened at all. There is an inherent improbability of the plaintiff behaving as he did if he was injured as he claimed. Bearing in mind the onus and standard of proof, I do not think that the impression he gave to the Master of being truthful was enough to overcome the improbability. In my view, there should not have been a finding of negligence. The cross-appeal against the finding of negligence should be allowed and consequent orders made.
Whilst it is not necessary to do so, it may be desirable to turn to the appeal and cross-appeal against the award of damages: Supreme Court Act 1933, s 32. See Howitt-Steven v Unisuper Ltd [2002] FCAFC 272. The key findings of fact by the Master in this regard were:
·Back pain suffered in the period commencing about April 1991 was sufficient to make the plaintiff incapable of working at all from about 1999.
·Although the plaintiff had been fit and able to return to work as a teacher, either full-time or part-time during the two years prior to the hearing, it was reasonable to regard his past loss of earning capacity as total, having regard in particular to the substantial amount of rehabilitation measures he necessarily undertook in order to minimise the need for heavy medication and in order to attempt to regain full earning capacity.
·By the time of the hearing the plaintiff was able or would soon be able to return to full-time work as a teacher.
·The plaintiff would continue to suffer pain for some period into the future for which pain management would be appropriate and at some stage effective.
·If the plaintiff were to suffer any substantial pain or any significant limitation of earning capacity in the future, and after the anticipated pain management program became effective, there would by then no longer be any causative link between the symptoms and the incapacity and injury in January 1991. On the contrary, it was likely that any such symptom or incapacity would, by that time, be referrable to underlying constitutional conditions which would have occurred in any event and without the injury in January 1991.
The challenge by both parties to the Master’s award of damages relates essentially to the Master’s findings as to the extent of the plaintiff’s incapacity for work and the relationship between any such incapacity and the injury which for present purposes will be assumed to have occurred in January 1991.
In this regard the consistency or otherwise of the plaintiff’s complaints and what he told others in the past were important, but the assessment of the plaintiff’s evidence about his condition past and present was a matter on which the Master had a real advantage. The genuineness or otherwise of his complaints was something which the Master was in a better position to assess than is this Court. Thus the Abalos principle of acknowledging the superior position of the Master in making an estimate of “the man” is more important in the appeal and cross-appeal against the award of damages than it was in the appeal against the finding of negligence. The relevant findings of the Master in relation to damages should stand unless the facts otherwise established or the uncontradicted evidence or both dictate otherwise.
The precise issue of the effect on damages of a pre-existing degenerative condition in the plaintiff’s spine was the subject of a great deal of evidence in the trial and it became the major issue in the appeal in relation to damages. However, it is necessary to recognise that these findings need to be related to his condition immediately before the alleged incident in January 1991.
The only medical witnesses who gave oral evidence were Drs Brown, Knox and Chandran in the plaintiff’s case, and Dr Rushworth in the defendant’s case. The Master did not misuse his position in seeing those witnesses when he rejected some of them and accepted the view of Dr Greenhalgh, who had not been called but whose reports and notes were in evidence. There was no compelling reason why the Master was required to accept a contrary view as submitted by the defendant. Accordingly, the Master’s conclusion as to the relationship between the injury and the plaintiff’s degenerative condition should not be set aside should the Master’s finding of negligence stand.
Luntz, Assessment of Damages for Personal Injury and Death (4th ed), at 169-170 writes:
“Where the plaintiff was almost certain to have gone through life unaffected by the thin skull or other pre-existing condition, the defendant is clearly liable for the total effect of the act on the plaintiff. On the other hand, where the pre-existing condition was of a type that would ultimately have affected the plaintiff anyway, the defendant is liable only for the acceleration brought about by the wrongful act. In the intermediate situation, viz where, although there was a fair chance that some precipitating cause other than the defendant’s act would have brought the plaintiff to the same state, this would not necessarily have occurred, the court must evaluate that chance and discount the damages accordingly.”
These principles are no different where the person is suffering from a pre-existing degenerative condition which has not yet become incapacitating. If it is established on the probabilities that the condition will or would have become incapacitating within a finite period, the fact that injury has made it incapacitating before the expiry of that period does not make the wrongdoer liable for the incapacity that was likely after such expiry without the intervention of the wrongdoing. In Wilson v Peisley (1975) 7 ALR 571 at 574 Barwick CJ said:
“The trauma of the accident for which the appellant was responsible no doubt made a present reality of that which was ever a real possibility. Thus, whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the appellant’s negligence intervened.”
Once a plaintiff has shown that the injury is productive of loss, it is for the defendant to show that some other factor has or would have taken over as the cause of the loss. Here Barwick CJ was referring to a situation when the evidence allowed only for the possibility that a latent condition might manifest itself without the defendant’s negligence. Where, as in this case, the evidence shows a probability of the latent condition becoming debilitating, adjustment must be made accordingly for the purpose of assessment of damages.
Establishing the relevant facts to which the law is to be applied in cases where a plaintiff suffers from a pre-existing degenerative condition, which in one way or another is affected adversely by injury, is seldom easy. Various terms such as aggravation, exacerbation, triggering, accelerating, and the like, nearly always figures of speech, are used to try to arrive at or explain the relationship between an injury and a subsequent bodily (or even mental) condition which would or might have reached a similar state without the injury.
To return to the appeal by the plaintiff against the inadequacy of damages, it is necessary to assume, contrary to the findings stated above, on the matter of liability, that the Master was correct in concluding that the plaintiff was injured in the way he described. It follows on that assumption that the Master was also correct in his finding that there was some causal relationship between the injury and plaintiff’s post injury condition despite the fact that the disc was degenerative. The question was for how long that relationship lasted. The case for the plaintiff on appeal was that the Master’s finding regarding the “progression and future effects” of any pre-existing condition were not supported by the evidence and that accordingly the determination regarding the cause of future disability and its effect on income-earning capacity and future cost of treatment was therefore flawed. It was also submitted that there was no evidence that the plaintiff’s capacity for full-time work would have returned to its earlier level by 1998.
The Master’s findings on the matter of the pre-existing condition as expressed in his reasons began as follows:
“[21]…I am further satisfied that the plaintiff at this time had a degenerative condition of his lumbar spine, and that this condition has continued over time, and accounts for the subsequent difficulties found at other levels.”
The Master continued:
“[22]…My finding, on all of the evidence, is that, as Dr Greenhalgh opined in 1995, the 1991 fall caused strain to the disc which was itself degenerate, and which then brought the already vulnerable disc much closer to prolapse, which probably occurred, on my findings, during the course of normal lifting duties. I am satisfied that the January 1991 incident, for which the defendant is liable, rendered symptomatic a previously asymptomatic degenerative spinal condition, and brought the disc at L5/S1 to the point where it subsequently prolapsed under normal activities.
…
[35]The plaintiff will, on all of the evidence, continue to suffer from ongoing back pain. I am satisfied, however, that a very large proportion of this for the future is attributable to the underlying degenerative condition. I am satisfied, on all of the evidence, that the incident at work in January 1991 has brought on his chronic back condition many years earlier than it would otherwise have occurred, and I attribute the bulk of his problems to date to the accident, but over time I am satisfied that he would have come to this condition even had the 1991 industrial accident not occurred. I must therefore assess him as a young man brought to significant and chronic back problems attributable to a disc rupture, but also as a person with an underlying condition which would have eventually come to this in any event.”
The conclusion appears to me inescapable that the plaintiff’s underlying degenerative condition was such that, without injury as he claimed in about 1991-1992, he was nevertheless at risk of some incident of a similar and not necessarily less severe nature, likely to occur in the ordinary course of his life and giving rise to similar aggravation or hastening of degeneration. The greater difficulty was in deciding when this would happen or would have happened. The Master took the view that it would have happened at some time before the hearing, yet ordered the whole of what was claimed for the past and also something for what was claimed in the future for loss of earning capacity.
In my view, there was no way on the evidence that any firm conclusion could be reached about the time when it would have been likely that without injury the process in the plaintiff’s spine would have degenerated to the extent that there was a prolapse of the disc at the L5/S1 level (or other disc). The Master’s conclusion was simply that he was satisfied that a prolapse or something like it would have occurred at some time in the past but he was not satisfied that it would have been so long in the past that he was prepared to reduce the value of the past loss of earning capacity below the value of a loss which continued up to the date of the hearing.
The finding that the effect of the injury sounded in damages for past loss of earning capacity and the incurring of out of pocket expenses to the date of hearing is, on the face of it, inconsistent with the finding that by the time of the hearing the plaintiff’s condition was such as it would have been even without the injury. However, allowing for a certain amount of looseness of expression in relation to what were no more than hypothetical circumstances, I think that the Master’s approach should be taken to have been along the following lines:
·The defendant bore the onus of establishing that the injury’s effect had ceased or would cease to be a contributing cause to the plaintiff’s compensable condition.
·The defendant had shown that the injury had been a contributing cause of the plaintiff’s symptoms and incapacity from the time of injury and that the processes that gave rise to those symptoms and incapacity also led to a disc prolapse by January 1992.
·The underlying degeneration was such that a disc prolapse was probably inevitable regardless of the injury. However the Master was not satisfied that the defendant had shown that a prolapse without injury was likely before a date some two years after the hearing.
·Even though without injury the prolapse was not likely to have occurred prior to the hearing, the consequences of the injury as they had been prior to the prolapse were likely to continue up to the hearing and for some two years thereafter. Therefore, the likelihood of the prolapse occurring without injury but before the hearing did not allow the defendant to escape the consequences of damaging the plaintiff’s spine, short of causing a prolapse.
It follows that the Master’s assessment of damages has not been shown to have proceeded on a false basis either as submitted on behalf of the plaintiff or as submitted on behalf of the defendant. Even if the Master has not been shown to be in error in his finding as to liability, he has not been shown to be in error with regard to his assessment of damages. The appeal and cross-appeal on damages should both be dismissed.
However, for reasons already given, my view is that the finding of negligence was erroneous. The cross-appeal on liability should therefore be allowed, the judgment of the Supreme Court be set aside and in substitution there should be judgment for the respondent defendant. I would not make an order for costs without further submissions.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.
Associate:
Date: 19 September 2002
IN THE SUPREME COURT OF THE ) No. ACTCA 4 of 2201
) No. SCA 70 of 2001
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MASTER
BETWEEN: PAUL BERNARD FARRELL
Appellant
AND:WOOLWORTHS LIMITED (ACN 000014675)
Respondent
Judge: Miles CJ, Crispin P and Gray J
Date: 19 September 2002
Place: Canberra
REASONS FOR JUDGMENT
CRISPIN P
I agree with the Chief Justice that the appeal should be dismissed, the cross-appeal allowed, the verdict in favour of the appellant who is the appellant/cross respondent in these proceedings set aside and, in lieu thereof, a verdict entered for the respondent. However, since I have approached the matter somewhat differently, I should indicate my own reasons for these conclusions.
Like the Chief Justice, I have concluded that the Master’s impression of the appellant’s credibility was too fragile a basis to support the finding of negligence. In my opinion, once the Master had rejected the appellant’s evidence that the incident occurred near the end of his shift on Australia Day 1991, there was no adequate basis for finding that an incident of the kind described by the appellant had nonetheless occurred and that it had done so at a time sufficiently proximate to that date to fall within the description “about 26 January 1991”.
Despite the Master’s finding that he was generally impressed with the appellant as a witness of truth, he was impelled to find that the appellant had been mistaken about some of his recollections of the incident. Those “mistakes” were not about small matters of detail but went to the heart of the incident having occurred. They included the time of the shift that he worked, the person who instructed the work, the fact of reporting the incident on the day he said it happened and not working for a week after the incident.
Nevertheless, the Master said that he was satisfied that the incident as described by the appellant did occur at or about the date deposed to by the appellant. He does not point to any other extrinsic support for this conclusion. There is no confirmatory evidence from any contemporaneous source to the appellant’s assertion. The only additional support seems to be derived from his observation in [13] of his judgment.
“I should note that the defendant did not ever put to the plaintiff that the trip and fall incident never occurred.”
It would have been quite wrong to reason that by not putting a circumstance to the appellant in cross-examination one could more readily accept that the incident occurred. But if that is not the purpose, there is no reason why the comment that the Master included in his judgment should have been made.
In fact, the cross-examination of the appellant proceeded quite carefully in seeking to commit the appellant to a specific incident at a particular time accompanied by whatever were the extrinsic circumstances upon which the appellant sought to rely. Such an approach does not call for the appellant to be asked if the incident happened at all. It presupposes that if the incident did not happen as the appellant described it, then it did not happen. There is no reason why it should be of note that it should be put in cross-examination that the incident never occurred.
This is some indication that the Master allowed an extraneous consideration to influence his assessment of the appellant’s credibility and its interaction with the extrinsic facts. Such a conclusion very much negates that understandable deference that an appeal court might give to a primary Judge’s finding of credibility and its effect on the other evidence generally.
The appellant had stipulated Australia Day 1991 as the date of the incident in particulars provided during the following year and in cross-examination agreed that he had been sure “back in 1992” that the incident had occurred on that day. Furthermore, even when it was suggested to him that he had had no time off work immediately after Australia Day but had worked on each of the next seven days, he rejected the proposition that he might be mistaken about the events of Australia Day 1991 and affirmed “that was the period where I tripped over and I hurt myself and reported it”. Yet his evidence as to the occurrence of an accident on that day was plainly incorrect.
It was, of course, possible that the appellant was merely mistaken as to the precise date of the accident and that an incident of the kind he described had occurred on some other day in January 1991. However, the fact that his evidence had been demonstrably incorrect in one significant respect plainly required that other aspects of it be scrutinised with care. In particular, it was necessary to consider whether there was any other evidence that supported the hypothesis that he had injured his back in an accident at work during January 1991. Regrettably, his claims of reporting such an accident and of the subsequent deterioration in the condition of his back throughout the balance of the year received little support from contemporaneous records and other evidence.
The appellant made no written report of the injury.
The appellant claimed to have reported the injury to Mrs Harkham at the end of his shift on Australia day in January 1991 but she gave evidence that, whilst he had told her of an accident he had had at work, that accident had occurred at the end of January 1992 and that his complaint had related to back pain after unloading a pallet of wine and champagne.
The appellant denied injuring his back in January 1992 but his evidence about that issue was also incorrect. He had completed an accident report on 30 January 1992 and on the following day had consulted Dr Greenhalgh and told him that his back had been sore for the previous week after doing heavy lifting at work.
Mrs Harkham also said that there had been another occasion upon which the appellant had complained to her of having experienced back pain and that she had been unable to say whether that complaint had been made before or after January 1992. However her evidence that that had occurred during the daylight hours of a sunny day was not challenged in cross-examination and the appellant claimed that he had reported the incident to her at the end of his shift which concluded at 9.00 pm. Furthermore, the appellant said that the incident had occurred on a Saturday and Mrs Harkham said that as the Administration Manager she had worked only Monday to Friday and had never worked on weekends.
Similarly, whilst the appellant claimed to have complained to Ms Venn in January and/or February 1991 on at least three occasions, Ms Venn was adamant that he had never made any complaint to her of injury or of having a bad back. She also maintained that if any employee had done so she would have recorded it in her diary and arranged for the employee to fill out the appropriate forms. Her diary contained no relevant entry.
The appellant’s description of the problems he experienced with his back during 1991 suggested that, whilst not immediately disabling, they had had a significant impact upon his activities and enjoyment of life and that his condition had deteriorated throughout the years. He said:
My back always hurt, working at Woolies – lifting the boxes. Every time I worked I would be sore. Throughout, obviously lectures at uni, as the year progressed, it would hurt with excessive sitting, and then lifting at work. Then it would hurt if I pushed myself sport-wise. Running would hurt, standing for long periods of time would hurt. And it just seemed to get worse and worse.
Yet whilst the appellant saw Dr Greenhalgh, his family doctor, on five occasions during 1991 he mentioned back pain only once and then gave no history consistent with his account of injuring his back by tripping and falling whilst at work.
On 28 February the appellant had apparently complained to Dr Greenhalgh of “tightness in chest while running”. He apparently made no mention of any discomfort in his back and the fact that he had been running suggests either that his back had not then been injured or that he had suffered only minor or transitory discomfort.
On 27 March the appellant complained of a sore throat but did not mention a sore back. The only complaint which he made of back pain is recorded in the notes of a locum, Dr Ette, taken on 17 April 1991 which included the statements, “Lower back pain sharp on and off, not affected by exercise. Pain back of legs. Sore throat as well” and “Back muscle spasm L side”. As mentioned earlier, the appellant apparently did not mention the alleged accident and the statement that the pain was not affected by exercise was not supportive of the contentions he advanced during his evidence. Indeed, he explained in evidence that Dr Ette had attributed his symptoms to aches associated with ‘flu.
Furthermore, despite the appellant’s claim that his condition “just seemed to get worse and worse”, he made no complaint of back pain when he saw Dr Greenhalgh on 27 July 1991 about headaches though he did mention a head injury sustained three months earlier. Nor did he complain of back pain when he saw him again on 28 October 1991.
The appellant conceded in cross-examination that he had had no treatment for his condition during 1991.
It is true that the appellant’s wife gave evidence of him complaining of back pain as early as February 1991 and of him no longer participating in sports such as squash and netball. However she did not suggest that the pain had been substantially disabling. When asked whether she had noticed any other restriction on his activities during 1991 she said:
Not that I recall. Socially, we – he – we sometimes participated in social activities together or separately, but nothing major other than having a sore back occasionally; commenting on that. If I asked how it was, he would tell me that it was sore.
She said however that the appellant’s condition got markedly worse during 1992. She then went overseas and didn’t see him again until mid 1994. When she saw him again she “couldn’t believe the difference in his movement”. She said that he was stiff, complained a lot and moaned when getting up from chairs.
Whilst this evidence provided some support for the appellant’s claim of experiencing back pain during 1991, it did not suggest that his condition had deteriorated throughout that year or that he had been suffering from symptoms of such severity that they could only have been explained by an accident of the kind alleged. As mentioned earlier, Dr Ette, the only medical practitioner to whom the appellant mentioned back pain during 1991, examined him in April but apparently thought that the pain was due to muscle spasm and, on the appellant’s account of the consultation, thought that this condition was associated with ‘flu. Furthermore, whilst Ms Farrell gave evidence that when she moved to Canberra in mid February 1991 the appellant was unwilling to help her unpack because of soreness in his back, he apparently made no complaint of such soreness when he consulted Dr Greenhalgh on 28 February 1991 about “tightness in chest while running”.
It is also true that in his report of 3 December 1992 Dr Greenhalgh mentioned that the history given to him during the consultation on 31 January 1992 had included some reference to back pain in early 1991:
He said he had had a similar condition also while at work approximately one year ago. However this time it was worse with marked stiffness in the back and also some pain in the right leg extending down to the ankle.
However, this history contains no hint of any complaint of continuing symptoms leading up to the further and apparently more severe episode of pain in January 1992, let alone a pattern of constant deterioration in his condition during the intervening period.
Viewed overall, there is little to support the hypothesis that the appellant had suffered the accident he described in or about January 1991 and much to suggest that that was unlikely. It seems highly improbable that he would have endured pain and disability of the level described for a full year without seeking treatment or, apparently, even seeking medical advice, especially if, as he suggested, the condition showed no sign of improvement but just seemed to be getting worse and worse. This suggests either that any accident of the kind alleged had occurred much later or that he had exaggerated the extent of his symptoms.
In my opinion the Master’s impression as to the sincerity of the appellant’s evidence was insufficient to dispel either of these possibilities. The accident had allegedly occurred more than a decade before the appellant gave evidence. It had not been disputed that he suffered from a long standing degenerative spinal condition and that by the time he gave evidence in June 2001 he had been experiencing chronic and disabling pain for several years. It would not have been surprising if he had looked back on his employment with the respondent prior to the onset of this disabling pain and attributed it to the physical demands of his job. Furthermore, the appellant was still only 29 years of age and it would not have been surprising if his memory of a particular incident and the nature and extent of symptoms he had allegedly experienced when only 19 years old had no longer been entirely accurate. The intervening years had been eventful. He had suffered further deterioration of his spinal condition, had married, completed university, embarked upon a teaching career and struggled to sustain employment in the face of chronic and potentially disabling pain. In these circumstances some fallibility of memory of events that occurred so long before would be understandable. He may have recalled having an accident on Australia Day in 1991 but, if he did so, he was plainly mistaken. Equally, he may have recalled the course of events that ensued throughout the balance of that year and early 1992 unfolding in the manner he described. However, there was no compelling reason to believe that his memory, at least as to the timing of those events, was any more reliable than his memory of when any such accident occurred. His memory of these events, even if honestly recounted, would in my view have been insufficient to support a finding that he had suffered worsening symptoms of the kind described throughout the ensuing year. At the very least, the vulnerability of his memory of relevant events had been demonstrated, there was little other evidence to support such a finding and his account of suffering those symptoms without seeking medical advice or treatment was inherently implausible.
If the appellant did experience such symptoms then it seems much more likely that any such deterioration occurred subsequently. However, he had linked the onset of those symptoms to the occurrence of the accident and if they did not commence in early 1991 then there was no real reason to conclude that the accident had occurred in or about January of that year. Hence, in my opinion, the evidence did not support such a finding.
Furthermore, even if the appellant did have an accident in January 1991, the limited evidence of the pain and deterioration during 1991 would have provided little basis for concluding that the accident had any causal influence upon the subsequent prolapse of the disc at the L5/S1 level of his spine.
I am also unable to accept that the evidence of Dr Greenhalgh supported a finding that the accident disrupted the disc at L5/S1 level of the appellant’s spine so that it was vulnerable to the subsequent prolapse.
The relevant findings as to causation of this injury were as follows:
17. Following the report of back pain at work in January 1992 the appellant attended his general practitioner. Dr Greenhalgh’s report of 3 December 1992 say [sic] that the appellant:
“. . . consulted me on 31.1.92 and stated that his back had been sore for the previous week after doing heavy lifting at work. He said that he had had a similar condition also while at work approximately one year ago. However this time it was worse with marked stiffness in the back and also some pain in the right leg extending down to the ankle.”
18. Dr Greenhalgh suspected muscular ligament strain, and prescribed anti-inflammatories, but sent him for x-ray, which showed congenital narrowing of L5/S1 with spondylolisthesis. He continued to present during the early part of 1992, and was sent for an MRI scan which showed on 4 May 1992 an L5/S1 disc lesion. He was treated with physiotherapy.
19. Since this time the appellant has been under regular medical attention in relation to his spine. There is common ground between experts called for the appellant and the defendant that the appellant has a lower spine that is prone to degeneration. Dr Chandran, to whom the appellant was referred for treatment and opinion in September 1992, advised conservative treatment in the early stages before eventual surgery, but has been of the view, at least since his report of September 2000, that surgery is inappropriate because, as well as the disc disruption at L5/S1, there is also disruption at L4/5. This latter condition is, I am satisfied, in no way accident related.
20. The early view of the appellant’s general practitioner was that the disc disruption found at MRI in May 1992 was caused by the strain of lifting boxes at work in January 1992. In subsequent reports he has varied this view, and accepts that the January 1991 incident, and his history of pain during 1991, leads to the conclusion that the disc was disrupted in the January 1991 incident. This question was in many respects the real issue between the parties at the hearing of this matter, and extensive medical evidence was tendered, and doctors were cross examined at length.
21. Taking all of the evidence into account, I am satisfied that the appellant did in January 1991 sustain damage to the disc at L5/S1. I am further satisfied that the appellant at this time had a degenerative condition of his lumbar spine, and that this condition has continued over time, and accounts for the subsequent difficulties found at other levels. In many respects my conclusions mirror the view of Dr Greenlegh [sic – Greenhalgh] in his report of February 1995 where he accepted that the January 1991 incident damaged the disc, but said:
“However it would not be likely to cause disc damage in a normal, healthy, fit twenty year old but if there was a pre existing weakness or degeneration of the lumbar sacral disc then disc damage from this sort of injury would be more likely. The damage would be to the extent of probable strain of the posterior disc capsule, however his symptoms at this time were not consistent with rupture or protrusion of the disc.”
22. The defendant’s case is that no disc damage was caused by the 1991 incident, as the symptoms associated with disc damage were not present in 1991, but clearly were present and are evidenced by regular medical attendances from January 1992. I am satisfied that the disc lesion as observed in May 1992 was not brought to that state immediately upon the accident of January 1991, as if it was ongoing sciatica, as reported from January 1992, would have been expected to be present. My finding, on all of the evidence, is that, as Dr Greenlegh[sic] opined in 1995, the 1991 fall caused strain to the disc which was itself degenerate, and which then brought the already vulnerable disc much closer to prolapse, which probably occurred, on my findings, during the course of normal lifting duties. I am satisfied that the January 1991 incident, for which the defendant is liable, rendered symptomatic a previously asymptomatic degenerative spinal condition, and brought the disc at L5/S1 to the point where it subsequently prolapsed under normal activities.
Dr Greenhalgh did not give evidence orally and in my opinion his reports do not really support these conclusions. It is true that in his earlier reports, dated 3 December 1992 and 2 December 1993, he expressed the opinion that the disc prolapse was caused by heavy lifting at work during January and February 1992. However, his report of 8 February 1995 does not reveal that he had changed his view or accepted that a history of an incident in January 1991 and pain in 1991 warranted a conclusion that the L5/S1 disc had been disrupted by an injury sustained at that time. The only definite opinions offered in that report concerning the causation of the damage to that disc were as follows:
MRI scan on 4th May 1992 L5/S1 disc protusion (sic) with dehydration consistent with long standing degeneration.
It is impossible to say how long the long standing degeneration had been there but the presence of one Smorl’s node and two dehydrated prolapse disc in a twenty year old would suggest problems of more than one years duration. The narrowing of L5/S1 noted on the x-ray could quite likely [have] been congenetial [sic], ie present at birth. This is a quite frequent x-ray finding.
Strenuous lifting in late 1992 aggravated previous back condition and in fact caused the L5/S1 disc to prolapse approximately one week before consulting me.
The presupposed narrowing of L5/S1 would be longstanding and would predispose to disc prolapse.
The report also noted that whilst there had been no history of specific injury over the years, the appellant had played rugby union football.
The passage quoted by the Master immediately followed the statement that it “is possible” that the type of accident apparently suggested in a letter from the appellant’s solicitors “could have caused damage to the lower back muscles, ligaments, joints or discs”. Dr Greenhalgh had earlier made the point that he had not been given such a history by the appellant and this statement merely acknowledged the hypothetical possibility that injury to the lower spine could have been caused in this manner. In this context, the reference to disc damage being more likely if there had been pre-existing weakness or degeneration plainly meant that such an occurrence would have been more likely than in the case of a 20 year old man without such a pre-existing condition. It did not mean that the possibility acknowledged in the previous sentence should be elevated to a probability. Similarly, the reference to “probable” strain of the disc capsule meant only that if damage were caused in such a manner it would probably extend to strain of the disc capsule.
The comment most supportive of the appellant’s claim was that, if back pain often came on during 1991 whilst lifting at work, it would have “aggravated his back condition”. However, the report does not state that any such aggravation would have involved damaging the L5/S1 disc and it contains nothing to suggest that it would have brought the disc closer to prolapse.
The report does convey Dr Greenhalgh’s opinion, based on the history provided by the appellant’s solicitors, that “the incident of 26 January 1991 in all probability aggravated the (long standing degenerative disease of the lumbar spine) by straining the L4/5 disc”. However, Dr Chandran, the appellant’s treating neurosurgeon, gave evidence that he had seen no change in the L4/L5 disc in 1992 and that “whatever has happened, happened subsequently”. Furthermore, the Master was satisfied that the condition of this disc was not related to the accident. It was the disc at L5/S1 that he found had been brought to the point where it subsequently prolapsed and it is that condition which is apparently responsible for the disabling symptoms from which the appellant suffers.
Dr Greenhalgh’s subsequent reports of 2 February 1996 and 14 August 1997 did not contain any expression of opinion concerning this issue.
Accordingly, I have been obliged to conclude that Dr Greenhalgh’s opinions did not support the Master’s finding as to the causal link between any accident in January 1991 and the appellant’s continuing pain and disability.
Dr Chandran said that either an incident of the kind which the appellant had claimed occurred on 26 January 1991 or an episode of heavy lifting could have caused the disc injury and that one would have to rely upon the symptoms that were present after the incident. However, as I have mentioned, the history given to Dr Greenhalgh suggested that the symptoms were worse after the incident in January 1992 than after any accident in January 1991. That is consistent with the paucity of complaint about the earlier incident and the appellant’s failure to obtain any treatment during 1991. Hence, Dr Chandran’s evidence is insufficient to support the finding as to causation.
There was other medical evidence to suggest that an incident on 26 January 1991 was responsible for the appellant’s continuing pain and incapacity but, in each case, it seems to have been predicated upon the history of pain and deterioration suggested by the appellant which was, in my opinion, too unreliable to support such a finding.
Despite a fresh reappraisal of this issue, I think that the difficulties to which I have adverted preclude a finding in his favour. Accordingly, even if the finding of negligence had proven sustainable, I would have found that the damages had been excessive and that only a modest amount should have been awarded for some back pain of uncertain severity and duration during early 1991.
The appellant is entitled to considerable sympathy. He has suffered much and continues to be significantly disabled by chronic pain. However, sympathy for one person does not justify an order requiring another to pay damages. A person claiming damages must prove that the defendant was guilty of a duty of care and that the injuries and disabilities for which compensation is sought occurred as a consequence of that breach. The predominant cause of the appellant’s pain is a long-standing and possibly congenital spinal condition. It is true that the condition was aggravated by a prolapse of the L5/S1 disc but the prolapse followed heavy lifting at work in January 1992 and he did not claim that this incident involved any breach of a duty of care owed to him by the respondent. His claim was based upon the contentions that he had an accident on 26 January 1991 and that the prolapse of the disc at L5/S1 was at least partially attributable to disruption of the disc caused by that accident. In my opinion the evidence did not support either of these contentions. Hence, the cross-appeal must be upheld.
I certify that the preceding paragraphs numbered twenty-four (24) to sixty-five (65) are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.
Associate:
Date: 19 September 2001
IN THE SUPREME COURT OF THE ) No. ACTCA 4 of 2002
) No. SCA 70 of 2001
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MASTER
BETWEEN: PAUL BERNARD FARRELL
Appellant
AND:WOOLWORTHS LIMITED (ACN 000014675)
Respondent
Judges: Miles CJ, Crispin P and Gray J
Date: 19 September 2002
Place: Canberra
REASONS FOR JUDGMENT
GRAY J
I agree with Crispin P.
I certify that the preceding paragraph numbered sixty-six (66) is a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 17 September 2002
Counsel for the appellant: Mr G Lunney
Solicitor for the appellant: Macphillamy Donald
Counsel for the respondent: Mr R Williams, QC
Solicitor for the respondent: Blake Dawson Waldron
Date of hearing: 28 March 2002
Date of judgment: 17 September 2002
Key Legal Topics
Areas of Law
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Negligence & Tort
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Civil Procedure
Legal Concepts
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Appeal
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Causation
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Duty of Care
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Negligence
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Remedies
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Vicarious Liability
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