Ryan v Jupiters Management Ltd

[1992] QCA 58

IN THE COURT OF APPEAL

[1992] QCA 058

SUPREME COURT OF QUEENSLAND

Appeal No. 52 of 1991

BETWEEN:

KATHLEEN ELIZABETH RYAN

(Plaintiff) Respondent

AND:

JUPITERS MANAGEMENT LIMITED

(Defendant) Appellant

JUDGMENT - THE COURT

Delivered the tenth day of April 1992

This is an appeal by a defendant against a judgment of a District Court judge in a personal injury case. The judge found that the respondent, a woman aged 37 at the date of trial, was injured in the course of her work with the appellant by being required to do work which was too heavy for her. The injury found was described as an "acute musculo-ligamentous tear" in the region of the right shoulder; it was sustained on 21 April 1987. Damages were assessed at nearly $250,000, but that prima facie sum was reduced by crediting the amount of the Worker's Compensation Board charge and also because of the limit of the jurisdiction of the District Court, $200,000. Judgment was given for the respondent against the appellant in the sum of $200,000 plus some interest.

The judge found that the appellant was negligent and also breached its statutory duty to the respondent. Those findings are not seriously challenged, but it is said that the judge erred in concluding that the physical strains to which the respondent was subjected at the place of her work caused the injury of which she complained. A narrower submission was that it was not proved that the injury was caused by the appellant's culpable conduct; it was said that the injury might have been caused by the respondent's having injured herself in the course of doing work other than that which involved negligence or breach of statutory duty on the part of the appellant and that it might have been caused by activities away from work.

Further, the appellant says that if all else be conceded, the damages were too high.

Lastly, it is argued that the judge was wrong in his view of the effect of the jurisdictional limit in s.66(1) of the District Courts Act 1967. That contention involved an attack on the correctness of the decision in Tancred Brothers Pty Limited v. Burke [1986] 1 Qd.R. 494. It is enough to say that we see no reason to doubt that the law is as set out in the reasons of Connolly J. in that case.

The case advanced for the respondent at the trial included evidence concerning the nature of the respondent's duties and, in particular, of the heavier work she had to perform; secondly, evidence of the nature of the physical condition which caused her to give up work in July 1987 and which she attributed to the heavy work she had done for the appellant; thirdly, evidence supporting the existence of a causal connection between the work done and the injury sustained. The appellant's argument as to liability focused on the third element. The judge's view that there was proved a causal connection between the injury and the work depended principally upon medical evidence, although the respondent called other expert evidence, from an engineer, tending in the same direction.

It is necessary to analyse the medical evidence in some detail, since counsel for the appellant suggested that the primary judge misstated its effect. It is convenient before doing so to say that we have concluded that counsel's complaint in that respect is justified. It was argued for the respondent that, in any event, there was sufficient medical evidence, based on the facts as to the heavy work the respondent had to perform, of the existence of a causal link. There clearly was such evidence, but there is also to be found in the record evidence tending in the contrary direction. The question arises whether the judgment can be upheld by this Court, on its own view of this conflicting medical evidence.

The judge found that on 21 April 1987, the respondent was engaged in the course of her employment as a bar attendant in filling a bar fridge, when she suffered an injury to her neck and back. His Honour held that her "activity at that time can only be regarded as light"; he said in effect that she had to adopt an awkward position to reach into the fridge and as she did so she "felt a severe pain in her back and on standing she was unable to move her right shoulder or her head or neck". She attended a nurse and rested at home for two days. When she came back to work she was still in pain and she continued to suffer pain at work until 23 July 1987 when she consulted a Dr. Exelby, a general practitioner, who advised her to stop work. She did so and has not worked since.

It was held, and this was not challenged, that reaching into the fridge was not, in itself, enough to cause the injury. The respondent's case was that the duties she performed had an effect upon her back such as to render her vulnerable to injury of the kind she suffered on 21 April 1987. It is not contended before us that the respondent could support the judgment in her favour on the ground of the ultimate injury alone, without proof of the vulnerability underlying it and proof that that vulnerability had been caused in such a way as to make the appellant liable.

The judge found that in a number of respects, which his Honour set out in some detail, the respondent's employment involved heavy work of a persistent and repetitive kind which exposed her to an avoidable risk of injury. He held that steps should have been taken to avoid it. Counsel for the appellant argued that his Honour's treatment of this aspect of the case was inaccurate in that, on the evidence, much of the work listed by his Honour was not carried out in the six months preceding the date of the incurring of the injury complained of (21 April 1987). That criticism appears to have some substance, but it is unnecessary to pursue the point further, in view of our conclusion on a more fundamental question discussed below, namely the effect of the medical evidence. His Honour went on:

"The difficult question which arises from the foregoing is central to the issue of liability. Is there a causal connection between the plaintiff's injury and the work which she was required to perform for months before the injury was sustained?

The plaintiff has been examined by numerous medical experts and she has been found unanimously to have genuine complaints of severe disability. There is no question, as has been argued by counsel for the defendant, that her descriptions of the aetiology of her symptoms has varied from time to time but in general, her accounts of her working conditions leading up to the event of the 21st April, 1987 have been consistent.

In my view the aforesaid variations are perfectly understandable in the light of the differences that have arisen in the medical opinions as to the cause of her current condition and, more importantly, reflect a gradual realisation, after her initial ignorance, of the real causes of her problems.

Of those medical opinions I find that of Dr. Curtis the most compelling and feasible. It seems to me that he alone of the doctors who examined the plaintiff obtained a full and comprehensive history of the types of activities in which the plaintiff was required to indulge in the course of her employment and of the minor niggling problems she had suffered in the past. Dr. Curtis considers that the plaintiff's symptoms, flowing from the incident of the 21st April, 1987, resulted from an acute musculo- ligamentous tear involving particularly the ligaments suspending the right shoulder blade from her trunk" (p.11-12).

It was suggested by the appellant's counsel that the reason given for acceptance of Dr. Curtis, namely that he had obtained a full and comprehensive history of the kind his Honour mentioned, was not supportable. We agree with that and would add that in the circumstances the divergence between the judge's impression as to the history Dr. Curtis obtained and the evidence the doctor in fact gave is a matter of importance.

The judge set out passages from Dr. Curtis' evidence, including the following:

"In all probability she sustained an acute musculo-ligamentous tear at the time of the injury and it is probable that the affected structures were prone to this injury as a result of previous excessive lifting tasks" (p.12).

This was a critical piece of evidence.

His Honour then made findings as to the extent of the disability (10 per cent loss of function of the spine and right arm) and explained that:

"In preferring the opinion of Dr. Curtis I do not expressly reject those of other experts except perhaps that of Dr. Langley recorded at ..." (p.13).

The exception is of no present consequence. His Honour added:

"It seems to me that all the medical experts, with the exception of Dr. McGuire (sic) appear to have related the plaintiff's initial injury to a past history of damage of one kind or another to musculo-ligamentous structures caused by the physical demands of the plaintiff's employment" (p.13).

If this means that other doctors called swore to a causal connection between the injury and the respondent's work, it appears to be unsupported by the record of the evidence of the doctors, which is discussed below.

The judge then referred to the arguments and evidence further, concluding with another explanation of the importance of Dr. Curtis in the case. His Honour said in effect that he thought that the respondent's failure to tell all the doctors about pain in her neck and shoulders before April 1987:

"... is perfectly understandable on the basis that they did not appear to her, at least in the initial stages, to be related to the complaints in respect of which she was being examined. It was only after the full investigation of her condition and its causes, principally by Dr. Curtis, that a relationship between those relatively minor complaints and her current condition emerged as likely" (p.14-15).

Again, it is to be noted that the judge seems to have
been of the view that Dr. Curtis, in particular, fully
investigated the connection between the respondent's
previous shoulder and neck pain and her final condition.
There was, in fact, no evidence that the doctor did so; to
the contrary, the doctor understood that the respondent had

no symptoms before 23 April 1987.

Medical Evidence

Some help can be derived from looking at the evidence of the doctors in the order in which they had contact with the respondent.

The respondent saw a Dr. Graham Exelby, a general practitioner, on 23 July 1987 "with a history of having overstretched her right shoulder two months before, while putting beer in a fridge". Dr. Exelby had the impression that there was no previous relevant trouble; this is of some interest, since the doctor saw her many times. Then on 24 July 1987 (the day after seeing Dr. Exelby), the respondent saw a physiotherapist whose name now is Mrs. C.M. Young. The respondent:

"... did not report that there was a specific incident or injuring accident; but stated that the nature of her job, including the loading of fridges with heavy crates, caused a gradual onset of pain that built up until she was forced to seek help".

Mrs. Young treated the respondent for a month during which "the conditions settled and began to respond to therapy". Mrs. Young concluded her report:

"By the final treatment Mrs Ryan still had a small amount of pain that returned whenever she exerted herself and I felt that she still had some spinal stiffness that would respond to a return to normal activities. I have not been in contact with her since, and assume this to be the case".

The date of that report is 10 December 1987.

In that month, the respondent saw a Dr. de Jager to whom she gave an explanation of her problem similar to that given to Dr. Exelby - i.e. attributing the trouble to the incident in April 1987. Dr. de Jager's diagnosis was that the injury was either a thoracic disc or right apophyseal joint lesion. His final assessment was that the trouble at that stage (in March 1988) was "regional pain syndrome" or "regional pain disorder". He explained that that is another name for "repetitive strain injury". In his opinion, the majority of such cases arise spontaneously with no obvious precipitating cause. Dr. de Jager gave no evidence to support the view that he thought the trouble was related to "a past history of damage ... caused by the physical demands of the plaintiff's employment", although the judge apparently thought he had. He conceded that it is "entirely possible for ligamentous structures repeatedly put under load to fail at any given time". However, it seems clear that Dr. de Jager did not diagnose the respondent's condition as having been caused by any failure of ligamentous structures; he thought the respondent suffered from regional pain syndrome and he did not know what caused it.

The proceedings were begun on 5 July 1988 and the next doctor seen, so far as the evidence discloses, was a Dr. Langley. Up to that stage, there were two contrasting versions of the history of the matter recorded. The physiotherapist's understanding was that the trouble had arisen gradually owing to the respondent's heavy work and the doctors gathered that it was all due to a single incident, namely reaching into the fridge. Dr. Langley thought the respondent had been injured "first by pushing portable bars around and later the next day when she was trying to load a refrigerator". It was, it appears, common ground at the trial that the respondent was not, in fact, pushing portable bars around on 20 April 1987, the day before she reached into the fridge.

On 5 June 1990, the respondent saw Dr. Curtis, who diagnosed her as having sustained an injury to her neck and right shoulder girdle in April 1987, the symptoms having been "precipitated by previous heavy lifting and pushing activities and ... further aggravated by continuation of work for several weeks whilst continuing to perform relatively heavy duties". He gave no evidence of having obtained a "full and comprehensive history of the types of activities in which the plaintiff was required to indulge in the course of her employment and of the minor niggling problems she had suffered in the past". His report noted that there was no relevant past history and he said in oral evidence that, as far as he was aware, the respondent was asymptomatic until the incident of April 1987. In contrast, the respondent gave what the judge described as "ample evidence of occasions when the plaintiff suffered niggling aches and pain at the end of her day's work". The judge seems to have been under the misapprehension that there was evidence that all this was explained to Dr. Curtis by the respondent, in the course of giving him a full history of the troubles from which the respondent had suffered before the incident of April 1987; that was not so. The error might not have mattered had it not been that the judge treated the taking by Dr. Curtis of a comprehensive history showing the relationship "between those relatively minor complaints and her current condition" as of central importance.

In September 1990, the respondent saw Dr. W.B. Maguire, who could not determine what it was that caused her symptoms.

It has to be added that it is puzzling that, while accepting the evidence of Dr. Curtis, the judge expressly refrained from rejecting that of Dr. Maguire and Dr. de Jager, neither being reconcilable with that of Dr. Curtis. But it is a matter of greater importance that the judge thought that all the doctors except Dr. Maguire supported Dr. Curtis' evidence about the connection between the heavy work before 21 April 1987 and the injury on that date. That is plainly not so with respect to Dr. de Jager, whose evidence was in essence to much the same effect as Dr. Maguire's, namely that the cause of whatever the respondent was suffering from was unknown.

Conclusion

Counsel for the respondent argued that any errors made in the analysis of the medical evidence did not vitiate the judgment. It is our view that the chain of reasoning whereby the judge arrived at his conclusion that the area in which the respondent suffered pain in April 1987 had been previously damaged by heavy work cannot be supported. His Honour misunderstood the effect of Dr. Curtis' evidence and seemed not to appreciate that none of the other orthopaedic specialists, except perhaps Dr. Langley, gave evidence which was consistent with Dr. Curtis' conclusion.

The question remains whether this Court should decide
the matter for itself, on the record, or order a new trial.
Counsel for the respondent referred to the evidence and the
findings with respect to the work the respondent had done as
a waitress and bar attendant and invited us to hold, as a
matter of common sense, that this must have caused the
respondent's trouble. But to hold that to be so would be
inconsistent with the view held by Drs. Maguire and de
Jager, that the origin of the problem could not be
ascertained. Dr. Maguire, who it must be remembered was one
of those expressly not rejected by the trial judge, was very
sceptical about the correctness of Dr. Curtis' theory that
there had been partial rupture of certain ligaments before
April 1987. He found no objective evidence of any
disability in the respondent's right upper limb and found no
clinical evidence of any disc injury, lesion or rupture in
the right shoulder. With full consciousness of the
inconvenience and cost associated with a new trial, we are
impelled to the conclusion that by no other means can the
appellant be given that to which it is entitled, namely a
judgment based upon a proper appreciation of the facts
disclosed by the evidence.

The appeal will be allowed, with costs. It appears to us that there is room for argument as to the proper disposition of the costs of the trial and the parties will be given an opportunity to make submissions on that subject.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 52 of 1991

Before the Court of Appeal
Mr. Justice Pincus
Mr. Justice Davies

Mr. Justice Shepherdson

BETWEEN:

KATHLEEN ELIZABETH RYAN

(Plaintiff) Respondent

AND:

JUPITERS MANAGEMENT LIMITED

(Defendant) Appellant

JUDGMENT - THE COURT

Delivered the tenth day of April 1992

MINUTE OF ORDER:

1.    That the appeal be allowed.

2.    That the judgment of the District Court be set aside.

3.    That there be a new trial of the action.

4.   That the respondent pay the appellant's costs of the appeal, to be taxed.

5.    That the parties may make written submissions as to the costs of the first trial.

CATCHWORDS:

Counsel:	D. Fraser, for the Appellant J. Griffin Q.C., with him, M. Grant-Taylor, for the Respondent
Solicitors:	Messrs Clayton Utz for the Appellant Messrs Michael Sing and Associates for the Respondent
Hearing Date(s):	18 March 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 52 of 1991

BETWEEN:

KATHLEEN ELIZABETH RYAN

(Plaintiff) Respondent

AND:

JUPITERS MANAGEMENT LIMITED

(Defendant) Appellant

__________________________________________

Mr. Justice

Pincus

Mr. Justice Davies

Mr. Justice Shepherdson

__________________________________________

Judgment of the Court delivered on 10th

April 1992.

__________________________________________

1.    THAT THE APPEAL BE ALLOWED.

2.   THAT THE JUDGMENT OF THE DISTRICT COURT BE SET ASIDE.

3.   THAT THERE BE A NEW TRIAL OF THE ACTION.

4.   THAT THE RESPONDENT PAY THE APPELLANT'S COSTS OF THE APPEAL, TO BE TAXED.

5.   THAT THE PARTIES MAY MAKE WRITTEN SUBMISSIONS AS TO THE COSTS OF THE FIRST TRIAL.

__________________________________________