Roffario Rocca v Neil William Bald No. SCGRG 93/3 Judgment No. 4148 Number of Pages 9 Negligence Damages

[1993] SASC 4148

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2), DUGGAN(1) AND DEBELLE(3) JJ

CWDS
Negligence - proof of negligence - Respondent passenger in a truck being driven over a speed hump - challenge to finding that the sudden jolting caused back injury - conflicting views of medical witnesses - finding of trial judge upheld.
Damages - general principles - Respondent 55 years of age - pre-existing back injury - determination of numerical value of 10 for non-economic loss upheld - awards of $12,000 and $25,000 for past and future economic loss respectively upheld.

HRNG ADELAIDE, 12 July 1993 #DATE 1:9:1993
Counsel for appellant:     Mr M Frayne
Solicitors for appellant:    Finlaysons
Counsel for respondent:     Mr H Abbott
Solicitors for respondent: Wallmans

ORDER
appeal dismissed.

JUDGE1 DUGGAN J The respondent, who was 55 years of age at the time of trial, was injured when he was travelling as a passenger in a truck being driven by the appellant. Both were working in the course of their employment with the Engineering and Water Supply Department at the time of the incident. It was alleged at trial that the appellant drove the truck negligently while driving over a speed hump just inside the entrance of the department's depot at Thebarton. The appellant has appealed against the finding that he was liable in negligence and has also claimed that the award of damages is manifestly excessive. 2. According to the evidence the speed hump is located approximately 10 feet in from the entrance gate to the depot. It is made of a heavy moulded material and is about six centimetres in height. Both the appellant and the respondent referred to the difficulty in driving over it in a heavy truck. The appellant said that it occasioned discomfort to the occupants of the trucks on almost every occasion that it was traversed. He said:
     "A. The hump was high or the truck seemed to be too bulky,
    too heavy to be able to get over the top and you've got to exceed
    the speed to be able to get over it. You just don't crawl over.
    You have the back wheel, you have to accelerate to get over the
    hump.
     Q. And what was the way in which you drove over that hump with
    your crane truck generally?
     A. Well, you approach the stop sign, you stop. You get in
    first gear, you go over the hump with your first wheel and the
    rear wheel appeared to be more rushed to get over because you have
    to accelerate a little more to get over the back wheel. That's
    the only way you can approach it." 3. The learned trial judge found that the truck weighed between five and six tonnes. The respondent was seated in the passenger seat in the cabin. The vehicle was driven at a maximum of 9 kilometres per hour over the hump. The front wheels crossed at the same time, but then the appellant accelerated and turned the vehicle in a sudden movement to the right. This caused the rear wheels on either side to pass over the hump at different times resulting in two separate and severe jolts. The respondent was forced first to the right and then to the left, hitting his head on the passenger side window. The sideways movement caused immediate pain. 4. No challenge was made to these findings. However the appellant argued that although the risk of injury being caused in this manner was not far fetched or fanciful, it was nevertheless small and the injury was the result of misadventure, not negligence. 5. There can be no doubt that a reasonable man in the position of the respondent would have foreseen that driving over the hump in the manner in which the respondent did involved a risk of injury to passengers. On the appellant's own evidence he was aware of the difficulty in negotiating the obstacle. The appellant agreed in evidence that the safe way to go over the hump was to ensure that the vehicle travelled in a straight line at right angles to the hump and at a low speed. This is what a reasonable man would have done in response to the risk which was apparent. Unfortunately it was not done in this way on the present occasion and the combination of the heavy truck, the height of the obstacle, the speed of the truck and the direction of travel resulted in injury. In my view the respondent made out a clear case of negligence and the trial judge's finding on liability must be upheld. A ground of appeal alleging that the learned trial judge should have found the respondent guilty of contributory negligence was not pressed. 6. The ground of appeal directed to the issue of damages alleges that the assessments under all heads of damage were manifestly excessive. Before dealing with this ground it is necessary to say something more about the accident and its consequences. The respondent said that the lurching of the vehicle threw him sideways to the left and his head hit the passenger's side window with some force. He said he felt an immediate pain in the lower back at about the level of his belt. He said his back "sort of paralysed for a minute". 7. He then felt pain in his right buttock which continued on down to the side of his right ankle. He said the pain was intense and he lowered himself to his knees. He drove home in agony. 8. According to the respondent's evidence he was off work for approximately a week and he then went back onto light duties. He has been on light duties continuously since the incident. He stated that his continuing back problems resulted in him taking off a total of approximately 12 months from work in the period of a little over four years from the time of the incident to the date of trial. He stated that after a period of six months he felt pain in his left leg. The pain in the right leg has abated to the point where he feels it only now and then when he has been standing for a long time. He said the pain in the left leg is there most of the time, although it varies in intensity. As for the back pain it has been present since the time of the incident and he is conscious of it at all times. 9. The respondent consulted his general practitioner, Dr Fisher, on 18th July, 1988. After receiving the results of x-rays which he had ordered Dr Fisher was of the view that the respondent had a degenerate condition of the lumbo-sacral spine which preceded the accident. This was a view shared by the other medical experts who gave evidence on the topic. According to Dr Fisher a subsequent CT scan confirmed a disc prolapse at the L4/5 level. The report on the scan referred to a central disc protrusion with extension to the left side which "is almost certainly involving the left side at the L5 nerve root". It was Dr Fisher's view that the incident in July 1988 had aggravated the respondent's pre-existing condition. However in cross-examination Dr Fisher conceded that whereas the back pain with right-sided symptoms might be related to this incident, the left-sided symptoms may have resulted from an incident which took place on the respondent's return to work. 10. Dr Fisher referred the respondent to Mr Teague, an orthopaedic surgeon, who first saw the respondent on 4th January, 1989. After viewing the x-rays and considering the report on the CT scan Mr Teague diagnosed a mildly compressive sciatica subsequent to disc degeneration and a mild L4/5 prolapse. He thought it significant that the respondent's back problems had increased markedly since the date of the incident and he regarded it as an important incident in the events leading to the respondent's present condition. However in cross-examination he agreed that if the left-sided symptoms first arose six months after July 1988 then he would not relate them to the truck incident. 11. Mr Jose, another orthopaedic surgeon, was called by the appellant. He stated that the respondent had advanced lumbo-sacral disc degeneration which had been present for some years before the subject incident. He said the central bulge at the L4/5 level was quite minor and he was of the view that there was no evidence of compressive type sciatica. In this respect he differed from the view expressed by Mr Teague. He agreed that the respondent has lateral recess stenosis but he attributed the pain in the left leg to irritation of the left S1 nerve root and thought that this was more likely to be the result of degenerative changes in the apophyseal joint on the left side. Mr Jose was asked about the respondent's symptoms and whether they could be associated with the truck incident:
     "Q. If the history Mr Bald has given of the symptoms he
    experienced immediately after the twisting incident is that he
    experienced excruciating pain in his right buttock and then a band
    of pain from his knee down the lateral side of his calf and into
    his foot on the right side, what would your opinion be as to the
    mechanics of what had happened at that twisting incident?
     A. I believe he strained an arthritic joint in his back that
    gives him back pain. Certain patients will complain of a referred
    type of pain down the leg. In this case it would have to be from
    the right facet joint, not the left.
     Q. And if symptoms in the right leg as opposed to the left leg
    persisted for some six months after the accident and thereafter
    symptoms in both legs and then the left leg became more
    predominant, would you connect the accident to his current
    condition?
     A. Not with the pre-existing state of his back.
     Q. Why is that?
     A. That can happen at any time with a person with his back in
    that condition." 12. In the light of Mr Jose's evidence and the concession made by Mr Teague in his cross-examination the learned trial judge reached the conclusion that the left-sided symptoms which arose some six months after the accident were more likely the result of either another incident or a continuation of the degenerative process. But what is of more relevance to the present appeal is whether the pain in the lower back which the respondent claims has been the most prominent symptom since the date of the incident can also be said to arise from some cause unconnected with the motor vehicle incident. The finding by the trial judge that it is causally related to that incident is challenged by the appellant and forms the basis of the complaint that the award of damages is excessive. 13. According to the evidence of the respondent the pain in the lower back which he felt as soon as he was jolted in the truck has continued in varying degrees of severity up to the present time. Dr Fisher confirmed that it has been the subject of constant complaint by the respondent. Furthermore the trial judge accepted the respondent as an honest witness who has resisted some medical advice that he should cease working. 14. I have pointed out that there was clear evidence of a pre-existing degenerative condition in the lumbo-sacral region and this had given the respondent some trouble prior to the accident, although it had not been anywhere near as serious as his present persistent backache. There can be no doubt that the truck incident resulted in some spinal disturbance. In his report of 24th April, 1992 Mr Jose said: "This man had an incident which stirred his already degenerate back up in July 1988. Whether this isolated incident has materially accelerated his problem is very difficult to judge or whether the current situation is merely an expected progression of the degenerative disc disease that is well established here." 15. However the appellant contends that the back pain and right leg pain experienced in the period of six months immediately following the truck incident was overtaken by pain and discomfort emanating from the respondent's pre-existing condition and that any injury received in the incident ceased to have any effect after the six month period. 16. Whilst recognising that it was for the respondent to prove his case, it must be acknowledged that the only evidence positively discounting the truck incident as the cause of the present back injury is that of Mr Jose. He said that there was no feature in the radiological examinations which pointed to an accident as opposed to degeneration. His views are summarised in the following passage quoted in the learned trial judge's reasons for decision:
     "Q. If he carried on with his normal job from 1976 when this
    earlier incident occurred, with occasional backache after some
    strenuous work, and he carried on with his normal sporting
    activities and other activities around the house, but that
    immediately after the accident in July 1988 he felt very severe
    back pain and constant back pain and has felt ever after, would
    you say that the July 1988 incident must have had something to do
    with that?
     A. I wouldn't agree that an incident such as that would be
    likely to produce such a symptomatic acceleration. After all, you
    have to ask yourself what has been done to produce that, whether
    the x-ray taken the day before would look the same as the x-ray
    taken the day after. It is not as though he suffered any
    compression fracture. He has not suffered any nerve root damage.
    You are relying entirely on a symptom.
     Q. If you assume there was this sudden onset of constant back
    pain as from this incident, surely that incident must have had
    some effect, to produce this?
     A. If you take his symptoms at face value, I might agree, but
    we like to see objective facts.
     His Honour Q. If we accept, as a fact, that Mr Bald is seated
    in this truck, he was jerked quite violently, first to the right,
    then to the left, and instantaneously felt agonising pain in his
    lower back or around the belt line, and pain in the right leg,
    what would cause that to a man with his back?
     A. I think the force of all manipulation of the lumbo-sacral
    joint, in much the same way as perhaps some manipulative therapist
    or a chiropractor gives a back a twist, they get a sudden pain,
    then usually, or often, they will improve. I don't think it is
    often that they are worsened so that I think he strained the facet
    joints at that time. More particularly the right, if it went down
    the right leg.
     Q. That is the interesting thing because, in his evidence, he
    has said that those pains persisted for about six months and he
    still has them from time to time, but they persisted in an
    unpleasant form for about six months, then it became more the left
    side?
     A. He has evidence in his x-ray that his left side nerve root
    could be irritated and that could account for the sciatic pain,
    but I don't believe coming on six months later you can attribute
    that to the accident. You have to attribute it to the natural
    progression of these degenerative changes which is the course of
    these changes.
     Q. I see that point but what concerns me is that taking Mr
    Bald's evidence at face value, you are sitting in a vehicle and
    you are symptom-free, and then something happens and you get this
    quite exquisite agony, it is fairly self-evident, I would have
    thought, that something happened to get it going?
     A. I think it gives them temporary pain and they almost
    certainly have temporary swelling of the joint involved. Looking
    at it another way, if you have a person with perhaps a stiff
    finger joint from football or whatever, and someone happens to
    knock it or push that further, it swells a little, it is sore for
    a while and it settles back to what it was previously. This is my
    own interpretation.
     Q. I am safe in assuming, I think, that if nothing else ensued
    from this incident in July of 1988, he certainly had a stretching
    or a back straining which brought about the right-sided problems?
     A. Yes, I would agree with that.
     Q. That is the minimum
    starting point, if we accept him at face value?
     A. Yes.
     Q. What if it were the case that he didn't get back to the
    pre-accident level, as is I think what you say the normal course
    would be?
     A. This you are measuring entirely on symptoms, not on signs
    and, as I mentioned, we work on objective signs. Certainly his
    back is capable of giving him symptoms, whether it came back to
    what it was going to be before is difficult to judge. The strain
    on his right facet joint, which I would assume he had, obviously
    probably settled. And there may well have been something else he
    had done to upset his left facet joint at perhaps a later date." 17. After quoting this passage his Honour went on to say: "Mr Cornish is the only medical witness who resists that line of reasoning completely. I have read and re-read what Mr Cornish has to say but, in the end result, I cannot accept him in this very important aspect of the case." 18. In order to understand this comment it is necessary to refer to an earlier observation by the trial judge as well as to Mr Cornish's evidence. Earlier in his reasons for decision the trial judge said:
    "The Plaintiff's medical advisers decided to seek a second
    opinion about the Plaintiff's back and other problems from Mr B.L.
    Cornish, who is a very well-known Orthopaedic Surgeon. Mr.
    Cornish was called and his evidence was very favourable to the
    Plaintiff. I am afraid that Mr Cornish's evidence went against
    the general thrust of the other medical evidence in one important
    way and I must say that I found that aspect of his evidence to be
    unconvincing. I do not mean to denigrate Mr. Cornish by saying
    that, I mean simply that I prefer the other evidence to his on
    that topic." 19. The particular issue referred to by the trial judge was that concerning the late onset of the left-sided pain. Mr Cornish refused to accept that this was due to some cause other than the truck incident. He said that a disc at the L4/5 level which is centrally placed has the capacity to affect either side of the body and that it can go on doing so in a variable manner for a long time. He associated the pain on both sides with the truck incident. This was the aspect upon which his evidence was rejected and the "line of reasoning" resisted by Mr Cornish and referred to by the trial judge after quoting from Mr Jose's evidence was confined to that issue. It follows that the trial judge must not be taken as agreeing with every proposition put forward by Mr Jose in the quoted passage simply be reason of his comment relating to the evidence of Mr Cornish. 20. The appellant has placed considerable reliance on the learned trial judge's comment in his reasons for decision: "I thought that Mr Jose was inclined to be a little dismissive of the Plaintiff's complaints but, in the very important areas of dispute, I found his testimony to be impressive and compelling." 21. It was argued that this amounted to an acceptance of Mr Jose's evidence in all matters of medical dispute including the cause of the respondent's present back problem. I cannot agree with that view. The trial judge made similarly broad statements in dealing with the evidence of other medical experts. He said he had no hesitation in accepting Dr Fisher's evidence and he said of Mr Teague: "I found some of Mr Teague's responses to questions a little difficult to comprehend but I accept what he says." 22. His Honour nevertheless went on to disagree with specific opinions of both witnesses. 23. It is perhaps surprising that after making the general comment about Mr Jose's evidence, the learned trial judge did not make specific mention of the fact that he did not accept his evidence as to the cause of the respondent's present back condition. But that must be the effect of what he did. He clearly understood the relevance of Mr Jose's evidence on this issue and in his judgment he cited a passage from that evidence which encapsulated the witness's view of the matter. Nevertheless he was required to decide the issue against the background of all relevant evidence including that of the respondent who had claimed that there was consistent low back pain from the date of the incident. Mr Jose stated that he placed more reliance on objective facts as opposed to taking symptoms at face value, but the trial judge seems to have placed considerable reliance on the respondent's evidence of his symptoms. This may account for his comment that Mr Jose was inclined to be a little dismissive of the respondent's complaint. After reading the evidence of the respondent and Mr Jose I do not understand Mr Jose to have thought that the respondent exaggerated his symptoms: rather it was the relevance of the symptoms which, in the view of the trial judge, he may have underestimated. 24. Of course the decision of the trial judge on this issue had to be reached on the evidence and on the balance of probability. But in my view there was evidence which would have justified his Honour's conclusion. There was the history as to the onset and continuance of back pain by the respondent coupled with the preponderant medical view that the likely cause of chronic back pain was a particular incident which aggravated the pre-existing degenerative condition. There was no evidence which compelled the conclusion that the onset of left-sided symptoms approximately six months after the accident was necessarily a new cause for the symptoms of pain in the lower back. Despite his view as to the limited duration of back pain caused in the truck incident it was Mr Jose's view that this incident "stirred his already degenerate back up". 25. Furthermore some of the symptoms in the right leg which were associated originally with the back pain remain. 26. Although he did not say so in as many words, in my view it is to be implied from his Honour's reasoning that he did not accept Mr Jose's view that the ongoing back problem may not be associated with the truck incident. The evidence as a whole provides support for the trial judge's conclusion and I am of the opinion that the respondent's ongoing back pain should be taken into account as a consequence of the aggravation of his back condition by reason of the incident in July 1988. 27. Having made this finding the learned trial judge was faced with the difficult task of assessing the extent to which that injury was responsible for loss of enjoyment of life and loss of earning capacity. This involved the consideration of any suffering or incapacity which would have supervened irrespective of the occurrence of the incident (Walker v Briddon unreported Full Court No. 9412 delivered 1/9/86) including the effect of the left-sided symptoms which his Honour found were unrelated to the truck incident. It would appear from his judgment that the trial judge was mindful of these considerations. 28. Prior to the truck incident the respondent had a history of occasional back pain brought on by various incidents which no doubt aggravated the pre-existing degenerative condition. However none of these episodes had led to long periods away from work. It was Mr Teague's view that the respondent could have worked to the age of 65 despite the degeneration in his spine, but that he would have needed to exercise care with heavy work. No view contrary to this evidence was expressed. The respondent is a diabetic and, although he has this under control, complications could develop as he gets older. 29. The question of the extent to which the left-sided symptoms unrelated to the incident are likely to affect him is more difficult and there was not a great deal of evidence on the topic. The respondent regards his back as the major problem and it has been the main subject of his complaints to his general practitioner. The respondent made no specific complaint of his leg presenting a significant problem at work. Dr Fisher said that the "central complaint" made by the respondent from time to time was of low back ache. In cross-examination Mr Teague referred to the left-side pain as being "the major problem" but that was in the context of the comparison between left and right-sided pain. Mr Jose said that as the respondent has an arthritic back he is going to get worse but he did not give a more specific opinion as to the respondent's prognosis if it had not been for the left-sided pain. The general impression I have received from reading the evidence is that the low back symptoms are considerably more debilitating than the pain in the left leg. 30. If the views as to the respondent's injuries which I have expressed are correct then I do not regard any of the awards under the various headings specified by the trial judge as manifestly excessive. The numerical value of 10 was assigned for the respondent's total non-economic loss. He suffered considerable pain in his back and right leg at the time of the incident and for a period of six months thereafter. The pain in the back continued after that time. There is ample evidence that the respondent was a reasonably healthy person prior to the incident and was active in sporting and social activities. Since the incident these activities have been severely curtailed and, although only the effects of the back injury can be considered, it is clear that, by itself, this is a significant disability and will continue to be the main cause for pain and restriction of activity. The psychological detriment which has accompanied this injury must also be taken into account, although allowance is to be made once again for the impact which the non-compensable injury may have had on this factor. 31. The evidence suggests that the maximum past economic loss including workers compensation and lost overtime payments is approximately $28,000. In my view the award of $12,000 indicates that sufficient reduction was made on account of the non-compensable injuries. 32. According to the medical evidence the respondent will not be able to work to the age of 65 years. Mr Jose is of the view that his working career might be reduced by five years. The respondent would find it most difficult to obtain employment on the open labour market. The evidence establishes that the injuries sustained in the incident substantially aggravated a back condition which was reasonably under control before that time. I have already commented on the fact that the back injury was more debilitating than the non-compensable injuries. In my view the award of $25,000 for future economic loss is not excessive and takes adequate account of the deductions to be made by reason of the respondent's pre-existing condition and the subsequent injury leading to left-sided pain. 33. In the light of the views I have expressed as to the respondent's injuries and their consequences I do not regard the awards for future medical expenses, special damages, and voluntary services as excessive. 34. In my view the appeal should be dismissed.

JUDGE2 KING CJ This appeal should be dismissed for the reasons given by Duggan J.

JUDGE3 DEBELLE J I agree with Duggan J that this appeal should be dismissed.