Russco Agencies Pty Ltd v Green

[1995] QCA 439

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 118 of 1995

Brisbane

[Russco Agencies v. Green]

BETWEEN:

RUSSCO AGENCIES PTY LTD

(Defendant) Appellant

AND:

JOHN GREEN

(Plaintiff) Respondent

Pincus JA Thomas J Williams J

Judgment delivered 3 October 1995

Separate reasons by each member of the Court; Pincus JA dissenting.

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	Appeals - conduct of trial - whether back injury caused by accident - whether issue of acceleration of damage excluded from consideration - need for precision in statement of issue for court to decide.
Counsel:	Mr R.R. Douglas QC, with him Mr M.E. Pope for the Appellant Mr C.A. White for the Respondent
Solicitors:	Quinlain Millers Treston as T/A for Lee Turnbull & Co for the Appellant Hunt & Hunt as T/A for Nehmer Davenport Dean McKee for the Respondent

Hearing Date: 13 September 1995

IN THE COURT OF APPEAL	[1995] QCA 439
SUPREME COURT OF QUEENSLAND

Appeal No. 118 of 1995.

Brisbane

Before Pincus J.A.

Thomas J. Williams J.

[Russco Agencies P/L v. Green]

BETWEEN:

RUSSCO AGENCIES PTY LTD

(Defendant) Appellant

AND:

JOHN GREEN

(Plaintiff) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 03/10/1995

This is an appeal against a judgment for damages in a personal injury case, the amount

awarded being $387,779.83. The only point taken in the notice of appeal was that the trial judge

should not have found that an incident at work on which the plaintiff’s case was based "directly

caused the plaintiff’s condition"; according to the notice of appeal, that was not in accordance with

the evidence accepted by the trial judge. In the course of the hearing in this Court the ground in the

notice of appeal was narrowed down, as I shall explain.

The plaintiff’s case was that in the course of his employment, on 22 December 1986, he

was required to take a heavy drum from a stack of drums and that, as he attempted to lift it, the

drum slipped, striking him on the chest and right thigh. This caused, so it was said, a catastrophic

deterioration in the plaintiff’s life, causing him to change from being a fit, healthy man to being an unemployable person, hopelessly crippled by injury and suffering constant pain, not alleviated by a

series of spinal operations. The essence of the plaintiff’s case, from the medical point of view, was

that the falling drum injured his lower back and, as I understand the judge’s reasons, this was

accepted; his Honour’s reasons seemed to assume that the L4/5 disc was of particular significance.

One of the arguments raised by the defence at the trial was that if there was a significant

injury to the back in December 1986 it was odd that this was not complained about for some time;

to some extent the primary judge’s findings supported that line of attack. His Honour was satisfied

that "the main symptoms, initially were in the groin and the thigh . . . ". Some further discussion of

the medical evidence, which evidence was not such as to make the judge’s task an easy one,

appears below, but it is first necessary to make reference to the way in which the case was

conducted.

After discussing the evidence and in particular the relevance of a CT scan done in October

1987 the judge said in his reasons:

" . . . I am satisfied that I should find that the plaintiff’s condition was the direct
consequence of the injury of 22 December 1986.

Mr Pope properly conceded that if such a finding was made the defendant was liable for the consequences of that event. So far as damages are concerned Mr Pope takes issue with the plaintiff’s schedule in only one respect. "

His Honour went on to say that the Griffiths v. Kerkemeyer component was in issue.

One difficulty about the reference to "the plaintiff’s condition" is that the plaintiff complained

of a considerable variety of ailments and it is not quite clear whether the findings should be read as

attributing all of them to the incident of 22 December 1986. A Dr Monro who reported on 13 July

1988 remarked that the plaintiff:

" . . . is reporting considerable and disabling musculoskeletal pain effecting all of his body, from his head, various areas of his back, including the cervical, thoracic and lumbar areas and particularly the latter, with pain referred down both legs to his feet. He is as well considerably disabled by perineal pain ".

In the same year a Dr Parisi wrote a report dated 20 July 1988 referring to the plaintiff’s major on-

going problem as being "low-back pain, testicular pain, leg pain and severe rectal pain . . . ". The

plaintiff was, it was explained in a report of a Dr Watson dated 19 March 1991:

" totally functionally handicapped by chronic pain which is the combination of low back radiating to the testicles and right greater than the left leg, and neck pain with headache and associated radiating pain into the bilateral upper limbs ".

A Dr Green reported on 14 July 1992 that the plaintiff said he had a spinal problem from "top to

bottom . . . the whole spine is gone . . . terrific head pains". No witness said, nor did the judge find,

that trouble at L4/5 was the cause of these symptoms. There were also psychiatric problems; but in

the absence of any qualification in the judge’s reasons, perhaps one must take it that the plaintiff has

been compensated on the basis that all his ailments were caused by an injury at work on 22

December 1986.

At first sight it seems somewhat improbable that such devastating consequences could have

ensued from an injury which was not severe enough to induce the plaintiff to seek medical attention

for weeks; he then complained to his doctor of pain in the mid thigh and right hip.

At the trial the defendant’s counsel admitted (p.4) responsibility for "whatever flowed from"

the incident of 22 December 1986. At p. 104 the plaintiff’s counsel tendered a list of the damages

claimed and the judge ultimately awarded damages on the basis of that list, with a reduction in the

Griffiths v. Kerkemeyer damages. His Honour made no finding as to whether the sums set out in the

list were appropriate; he did not do so, it appears, principally because of a concession which was

made by counsel for the defendant at p. 104:

" MR POPE: Now, Your Honour, on the basis that the plaintiff makes out his case, that is he was - his back was severely injured necessitating what’s happened to him by the mechanics of some accident with the drum. I don’t necessarily say he’d need to prove the one he actually pleads because it seems to me if he’s incurred the back pain manoeuvring that drum anyway, well, we’re in-----

HIS HONOUR: Yes.

MR POPE: Then I don’t disagree with any part of that save for the Griffiths and

Kerkemeyer . . . " .

It will be noted that Mr Pope used the expression "severely injured" and there is no finding

to that effect; but it appears to me that it is necessarily implicit in the judge’s findings that there was

an injury which had severe consequences.

When counsel for the defendant addressed at the end of the trial, he said in effect that the

judge should find that the "probabilities are that he was always going to end up where he is", by

which was meant that the condition of the plaintiff’s back at the time of the incident complained of,

on 22 December 1986, was such as to be likely to cause the plaintiff to be reduced to a state of

severe disability even if that incident had never happened. Counsel submitted in the alternative, in

effect, that damages should be awarded on the basis that the 1986 incident had damaged the

plaintiff’s right hip, causing him disability in that area; the significance of that submission was that it

was common ground that the hip was damaged by disease and that the incident of 22 December

1986 did not make any great difference to its ultimate condition.

In my view, the terms of the address of counsel for the defendant were inconsistent with the

notion that all the judge had to do was to decide whether there was a severe injury to the plaintiff,

caused in the incident of 22 December 1986. But the notice of appeal makes no complaint about

this aspect of the matter; it is not said there that his Honour erred in acting on the basis that, once he

found a connection between the plaintiff’s condition and the 22 December 1986 incident, he should (subject to the qualification about Griffiths v. Kerkemeyer damages) award the sums set out in the

plaintiff’s counsel’s list without consideration of their appropriateness; nor does any such complaint

appear in the written outline of argument. When the matter was heard, there was some extensive

discussion of the effect of whatever concession was made below, but as I understood the argument,

it was not suggested that we should, going beyond the grounds in the notice of appeal, set aside the

judgment on any basis other than there set out.

In those circumstances, and although the course of events could hardly be thought

satisfactory, it does not appear that we should hold that the judge decided the matter in a way which

assumed the existence of a concession which was not in the end adhered to, about the amount of

damages. That is, the only point to be considered is whether the judge was right in his treatment of

the question whether there was a causal connection between the plaintiff’s condition at the date of

trial and the incident of 22 December 1986. It is desirable to set out some account of the findings.

In the judge’s reasons, his Honour mentioned that a Dr Fraser, who saw the plaintiff on 7

January 1987, said that the plaintiff then complained of pain in the right thigh and right hip, diagnosed

as muscle strain, and that "the plaintiff was treated on 7, 8, 9 and 10 January by which time the notes

record that he was much improved". He went back to Dr Fraser on 23 January, complaining of

tenderness on the inside and outside of his thigh, was referred to physiotherapy and did not work

subsequently. On 12 February and 19 February there was still complaint of pain in the thigh, but the

doctor noted improvement. On 26 February the plaintiff still had pain and limited rotation of the

thigh.

Then, the judge said, on 5 March 1987, "Dr Fraser recorded severe pain since driving a car

the day before. For the first time the back pain and the pain in the leg and thigh all joined together".

The language just quoted is taken from the evidence of Dr Fraser, but when the doctor spoke of "the" back pain he was not, as his evidence made clear, referring to any complaint of pain in the

back between 22 December 1986 and 5 March 1987. In his evidence, Dr Fraser agreed that his

note of 5 March 1987 was the first complaint about back pain since 17 July 1985 - i.e. before the

incident at work complained of.

X-rays taken in April 1987 showed some wedging of lower thoracic and upper lumbar

bodies, suggesting past trauma and mild degenerative signs throughout the lumbar area. On 19

October 1987, when a CT scan was done, there was said to be a right-sided disc herniation at L4/5

level. There were a number of surgical operations done. These included a hip replacement and it

appears to be common ground that the necessity for the hip operation was not brought about by the

incident of 22 December 1986.

The judge said that two specialists, Drs. Douglas and Laister, formed the view that the

plaintiff’s pain in mid-1987 was due to his hip problem, not his back. His Honour mentioned

evidence in support of the possibility that an injured back may remain asymptomatic for a period

after the injury and that a minor incident may convert an asymptomatic back into one which is

painful. His Honour said that there was no evidence of specific trauma between 22 December 1986

and 7 March 1987, the latter date being that on which the plaintiff first complained to his doctor of

back pain. He then referred to the CT scan of 19 October 1987 and said, in effect, that Drs.

Douglas and Laister had formed their opinion before that. He added:

" In my opinion, the subsequent CT scan added a new element to the store of information about the plaintiff’s condition which was not available to the two doctors, and in the absence of any evidence of other trauma and for that reason, together with the circumstantial evidence of the chain of events, I am satisfied that I should find that the plaintiff’s condition was the direct consequence of the injury of 22 December 1986 ".

The CT scan of October 1987 appears to have been a major element in his Honour’s
rejection of the evidence of Drs. Douglas and Laister. The defendant’s counsel argued in this Court

that His Honour should not have attached such significance to the CT scan, and he referred us to

some evidence about the scan. Counsel argued that all the CT scan shows is that the plaintiff

"probably had some other trauma which has affected that disc".

The reasoning which the defendant has to attack, to make its point good, is that an opinion,

formed before the CT scan, as to the cause of the back pain complained of in March 1987 was

weakened or falsified by the detection of disc herniation; further, that the conclusion that the

plaintiff’s lower spine symptoms were properly attributable to the incident of 22 December 1986

gains support from what was found in October 1987.

When Dr Douglas was asked about the CT scan, he said that the L4/5 disc was not where

the plaintiff had surgery and that subsequent investigations did not show the L4/5 problem. Dr J D

Monro was asked, with reference to the CT scan, whether "that would be the sort of injury that you

would expect to result from the incident that Mr Green described to you?", and answered "yes".

That answer does not take the plaintiff’s case very far, since the question assumes a matter which

had to be proved, namely that what was observed at L4/5 resulted from an injury; nor did Dr

Monro express a view as to whether it could equally well have resulted from some other incident.

Dr Monro said in effect that severely damaged discs could be quite asymptomatic, and advanced no

opinion on the question whether the CT scan finding had demonstrated the origin of the plaintiff’s

pain.

It is correct, as Dr Douglas said, that there was a subsequent investigation which did not

support the CT scan finding; there was a myelogram done in January 1988 which did not find any

significant abnormality in the lumbar spine other than at L5/S1; this subject is further discussed

below, in dealing with Dr Rossato’s evidence. But it is important to note also that Dr Douglas, at

the time he formed his opinion in July 1987 that the disability was due to the hip joint disease, had seen X-rays and these showed "some wedging of the vertebra of the upper lumbar vertebrae, but

[that] the spine was otherwise normal". It is of interest that in Dr Douglas’ final report, he explains

that the site of the plaintiff’s complaints of back pain was "the mid and upper lumbar areas and he

was wearing a back support on those areas. The support was not over the lower back". The site of

his trouble, at that stage, appears to be in accord with what was found on X-ray. Dr Laister had

also seen X-rays, when he expressed his opinion in the following month.

Although the contrary was submitted on behalf of the plaintiff, it seems to me clear that there

was, speaking generally, evidence on which his Honour could properly have formed the view that

there was a causal connection between the plaintiff’s condition at the date of trial, or at least some

aspects of that condition, and the incident on 22 December 1986. But in determining that the

plaintiff’s condition was caused by that incident, his Honour has, in my respectful opinion, attached

importance to what was found in the CT scan. In particular, his Honour must have believed that the

CT scan result added significantly to what was known to Drs Douglas and Laister, from studying X-

rays, namely that there were abnormalities in the lower spine.

I can find nothing in the medical evidence to support that view. The CT scan showed an

abnormality in the lower back which was, speaking generally, the area of which the plaintiff

complained in March 1987. But no-one said that the abnormality detected in the CT scan was,

either definitely or probably, the cause of the plaintiff’s pain or that it had any greater significance in

establishing the cause of that pain than had the X-ray findings. As Mr White for the plaintiff was

good enough to point out in his address in this Court, Dr Monro (who gave evidence for the plaintiff)

pointed out that subsequent surgical treatment of the area of the L4/5 disc did not in the least relieve

the pain; that tends to support the view that trouble with that disc, if there was any, had no real

significance. Mr White made further reference in his address to the CT scan but did not refer us to

any evidence to support the judge’s assumption that what was found in the CT scan was of special (or indeed, any) help in determining whether the view of Drs. Douglas and Laister, as to the cause of

the plaintiff’s pain in mid-1987, was correct. Nor does it appear to me that in the absence of any

such evidence his Honour could properly conclude that the CT scan finding made the opinions

opposed to those of Drs. Douglas and Laister the more probable.

The surgeon who first operated on the plaintiff’s back, Dr R G Rossato, wrote on 7

December 1987: " A c.t. study alleges the presence of a prolapsed intervertebral disc at L4-5".

But the doctor recommended a further test and the myelogram, referred to above, did not confirm

the CT result. It was, as Dr Douglas pointed out, not the L4/5 disc which Dr Rossato operated on,

but the L5/S1 disc. Then a subsequent CT scan was done, as Dr Rossato mentions in his report of

18 April 1988, and this "did not show any pathology to my mind of consequence in his lumbar area".

I can find nothing in the record to contradict Dr Rossato’s opinion on this point, which further

weakens the supposition that the CT result was a ground for finding that the plaintiff’s problems, or

some or most of them, were due to an incident in December 1986.

In summary, it is my respectful opinion that:

1.          His Honour decided the case on the basis that a CT scan finding was of substantial help in

determining whether symptoms of which the plaintiff complained in 1987, and of course

subsequently, should properly be attributed to an incident on 22 December 1986, rather

than to the cause which Drs. Douglas and Laister put forward.

2.          There was no evidence to support the view that the CT scan finding was of any assistance in

that regard, nor was it a matter on which the Court was entitled to draw a conclusion

without such evidence.

I would allow the appeal, set aside the judgment below and order a new trial. Although the

point taken about the CT scan is, broadly speaking, covered by the notice of appeal, it is not

specifically mentioned there, nor in the outline filed on behalf of the appellant; I would order that the

respondent pay half of the appellant’s costs of the appeal. The costs of the first trial should be

reserved to the judge who hears the second trial.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 118 of 1995

Brisbane

Before Pincus JA

Thomas J Williams J

[Russco Agencies v. Green]

BETWEEN:

RUSSCO AGENCIES PTY LTD

(Defendant) Appellant

AND:

JOHN GREEN

(Plaintiff) Respondent

JUDGMENT OF THOMAS J

Judgment delivered 3 October 1995

This is a defendant's appeal against an award of $387,779.83 damages. The only ground of

appeal is:

"(a)	The learned Trial Judge's finding that the incident which occurred at the Plaintiff's work on 22nd December, 1986 directly caused the Plaintiff's condition, was not in accordance with the evidence accepted by the learned Trial Judge.
(b)	The learned Trial Judge's finding above was against the evidence and the weight of the evidence."

On 22 December 1986 the respondent attempted to lift a sixty-litre drum of paint thinners

from a shoulder-high stack. It slipped, struck his chest and right thigh, and he caught it before it

landed on the floor. He gave evidence that he immediately felt pain in his back, groin, and down his

right leg.

He rested over the Christmas period and returned to work on 7 January 1987. At that time
he saw Dr Fraser, a general practitioner, who recorded a complaint of right leg pain. The plaintiff

gave evidence of receiving physiotherapy treatment for his back and leg between 23 January and 5

March 1987, and of having suffered from back pain as well as leg pain from the time of the incident

of 22 December 1986.

Prior to his injury at work on 22 December 1986 there had been three occasions on which

he had suffered from back problems. None of them was a major episode. The first (in 1981)

involved a muscle strain to the lower back resulting in two weeks' absence from work. The second

(in 1984) was the consequence of a practical joke, for which he sought no medical treatment and

which involved no absence from work. The third (in 1985) involved a muscle strain in the lower

back for which he received treatment including physiotherapy, but which involved no absence from

work. He had a long-standing disease in his right hip (Perthes' disease) which was likely to

degenerate and produce serious difficulties in due course. Notwithstanding this, right up to the time

of the accident in question the respondent led an active work and sporting life, including regular

appearance as a first-grade State League soccer referee. Although he recognised that he "always

had to be careful" because of the existence of the hip disease, he had no real problems with it. He

performed his work without physical handicap and had no back pain.

The plaintiff's pain, which according to the records of Dr Fraser was mainly in the region of

his thigh, led him to cease work on 4 February 1987. His doctor suspected it was sciatic nerve pain

but was not able to adopt that diagnosis until 5 March 1987, when, after driving a car the plaintiff

reported severe back pain. There was no particular incident on that day or indeed on any occasion

between 22 December 1986 and 5 March 1987. A diagnosis was then able to be made linking the

leg pain to a back condition. Dr Fraser did not deny being told of some back pain before the later

date but his notes and recollection indicated that the major area of pain was in the thigh and groin

areas. The necessary connection between his leg and sciatic nerve referral was therefore not made

until March.

In October 1987 a CT scan was done which revealed right-sided disc herniation at L4-L5.
There then followed a series of operations. Whilst the initial CT scan had disclosed abnormality at

the level L4-L5, Dr Rossato suggested further investigation at a higher level which demonstrated an

indentation at L5-S1 consistent with a disc lesion, and this explains his decision to operate at that

level in February 1988 when he performed a discectomy. That procedure did not relieve his pain

and he was referred back to Dr Low who eventually undertook a two-level posterior spinal fusion

between L4 and S1 on 25 August 1989. For a time this provided some relief. His right hip then

became increasingly symptomatic and on 9 December 1992 Dr Zella performed a total right hip

replacement. This may be regarded as a discrete problem, and it is not suggested that symptoms

attributable to his hip disease are compensable. That operation alleviated his hip discomfort,

however his back problems worsened. In March 1993 a relatively minor operation was performed

to remove the fixators that had been inserted in the 1989 operation. In November 1993 Dr Low

performed a further fusion, this time a three-level fusion in the area L3-S1. He remains seriously

afflicted with back pain, and other problems including psychiatric problems.

The back operations may be seen as a progression during which surgeons, for the most part

unsuccessfully, sought to alleviate the onset of pain which can certainly be traced back to 5 March

1987.  The question at issue is whether it can be traced back to the incident of 22 December 1986.

At the commencement of the trial defence counsel intimated that his client did not accept that

any incident had happened on 22 December 1986, but that if the Court came to the view that some

such incident occurred whereby the plaintiff "injured himself in some fashion then we would be

responsible for whatever flowed from that injury". Before addresses defence counsel made the

following statement:

"On the basis that the plaintiff makes out his case, that is . . his back was severely injured necessitating what's happened to him by the mechanics of some accident with the drum . . it seems to me if he's incurred the back-pain manoeuvring that drum anyway, well, we're in."

He went on to refer to exhibit 43 which was a summary of the plaintiff's counsel's submissions as to

the quantum of damages that should be awarded under each head. He continued, "Then I don't disagree with any part of that (ex.43) save for the Griffiths v. Kerkemeyer." There was only a

qualified disagreement with the amount claimed under that latter head.

Having regard to the content of ex.43, and to the nature of the evidence, this was a

surprising concession and seems to have been based on an all or nothing approach. There was a

great deal of evidence which would have justified the view that notwithstanding a finding that the

incident of 22 December 1986 triggered the onset of back pain with ensuing operations and

disability, the plaintiff's back was at that time so vulnerable to adverse consequence from even minor

trauma such as a sneeze or some everyday event that serious disability was likely to have afflicted

him in the near future quite apart from that accident. His pre-accident state was described by one

doctor as "an accident waiting to happen". In such a situation damages attributable to the accident

would in the normal course be assessed on the basis of a minor acceleration only (compare Wilson

v. Peisley (1975) 50 ALJR 207). However, ex.43, which sought the allowance of economic loss at

a net figure of more than $286,000 after contingency reductions of 15 percent with respect to past

economic loss and 25 percent for future economic loss does not seem to have been prepared with

such an approach in mind. It is clear that defence counsel elected to make no submissions of that

kind.

I have read the addresses of counsel (which were very short) and these only confirm the

indications previously given. Counsel for the defendant confined his submissions to the absence of

connection between the work incident and the plaintiff's back condition, contending for trivial

damages which would not reach the Workers' Compensation payout level and which would result in

the failure of the action. The only middle ground upon which he addressed was based upon the

possibility that the work accident had set off the latent Perthes' disease, in which case some

damages could be assessed for the acceleration of hip problems, but not for anything to do with the

plaintiff's back.

Against this background the learned Trial Judge addressed himself simply to the question whether "the plaintiff's condition was the direct consequence of the injury of 22 December 1986", noting defence counsel's concession "that if such a finding was made the defendant was liable for the

consequences of that event", and noting that issue was taken with the plaintiff's schedule in only one

respect. The appellant did not contend upon this appeal that His Honour should have assessed

damages upon a basis which its counsel had not submitted below. Indeed there is no suggestion in

the notice of appeal that His Honour failed to address appropriately an issue of reduction of

damage; it simply challenges the finding that the work incident directly caused "the plaintiff's

condition".

As to this the evidence was in conflict. The evidence of the doctors associated with the

treatment of the plaintiff, including Drs Fraser, Low, Callanan, Monro, Todd and Rossato,

supported the view that the majority of the plaintiff's symptomatology was attributable to back

problems. Leaving aside Dr Rossato who did not address the question of causation, those doctors

favour the view that the problems were probably brought on by the incident of 22 December 1986.

The defendant's case was dependent upon the views of Drs Laister and Gavan Douglas who

first examined the plaintiff around July 1987 at the request of the Workers' Compensation Board.

They at that stage considered that he had no back condition at all, and that his symptoms were

entirely due to the Perthes' disease in his hip. Subsequently to their diagnoses, the CT scan showing

disc herniation at L4-L5, and Dr Rossato's further investigation showing irregularity at L5-S1 may

be thought to have supported the view that there was indeed a back problem. Notwithstanding the

additional evidence, Drs Douglas and Laister adhered to their original views, and Dr Douglas

expressed some reservations about the back surgery. With these matters in mind, no error is

apparent in His Honour's mention of the CT scan or adding additional information that was not

available to those two doctors when they made their initial diagnosis excluding back problems as a

source of his complaints.

Without further canvassing the two sets of medical opinion it is enough to say that there was

adequate evidence supporting His Honour's finding that the plaintiff's back condition was a

consequence of the incident of 22 December 1986.

His Honour obviously accepted the plaintiff's evidence as to the areas in which he suffered

pain indicating that he had "no doubt . . that from 22 December 1986 onwards" the plaintiff suffered

pain referable to the relevant condition and that there was no intervening trauma. Although Dr Fraser

was unable to confirm that particular complaint of pain, the evidence of the plaintiff and the history

given by him to the other doctors supports its existence. There was also evidence that symptoms

may lie dormant and a back remain asymptomatic for some time after the trauma which is

responsible for the eventual symptoms.

There was also evidence (from Dr Todd) that the driving of a car (as the respondent did on

5 March 1987) was unlikely to cause a back injury of the kind which the respondent suffered, but

could make such a back injury sustained two or three months earlier feel very much worse. There is

no ground upon which His Honour's preference for one group of witnesses over another should be

regarded as erroneous and no ground upon which his conclusion as to causation, in the wide sense

in which the matter was litigated, should be set aside.

After a close analysis of the evidence we are left with the view that the damages assessed

are substantially higher than a proper application of the principle of Wilson v. Peisley would have

produced. However in view of the way in which this trial was conducted it would be inappropriate

to require a re-assessment of a kind that the defendant deliberately avoided, and which it did not in

any event seek upon the appeal.

No doubt attempts to limit issues and shorten hearings are well-intended. However the

present matter underlines that before shortcuts are taken there should be a precise definition of what

is or is not in issue.

The appeal should be dismissed with costs.