Sam Popovic v the Royal Adelaide Hospital Incorporated No. SCCRM 87/2073 Judgment No. 3870 Number of Pages 4 Negligence

[1993] SASC 3870

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE(2), MATHESON(1) AND DUGGAN(3) JJ

CWDS
Negligence - Liability of master for injury to servant - appellant alleged he injured back when lifting patient - unfavourable findings made by trial Judge - findings clearly open - appeal dismissed.

HRNG ADELAIDE, 4 February 1993 #DATE 25:3:1993
Counsel for appellant:         Mr A S Martin
Solicitors for appellant:     Johnston Withers
Counsel for respondent:        Mr H G Rowell
Solicitors for respondent:     Stratford and Co

ORDER
Appeal dismissed.

JUDGE1 MATHESON J. At all material times the appellant was employed by the respondent as a medical orderly. He appeals from the dismissal of his claim against the respondent for damages for personal injury allegedly sustained as a result of a lifting accident in the course of his employment on 7 March, 1984. His claim was dismissed because the learned trial Judge found that he had not established the matters referred to in paragraph 3 of his Statement of Claim. That plea reads as follows:
    "3. The Plaintiff in the course of his duties was required
    to take a particular patient to the shower. The lifting machine
    normally available to assist in shifting non-ambulant patients
    was broken. The patient had to be manually lifted, placed on a
    shower trolley, taken to the shower, showered and returned to
    his bed. The patient was located on a low bed, rather than a
    bed of ordinary height. In the course of returning the patient
    to his low bed the Plaintiff was assisting to lift him with two
    other men. The Plaintiff was standing holding the heavy part of
    the patient by his shoulders. There was another man adjacent to
    the Plaintiff supporting the mid-section and another holding the
    patient's legs. When they lifted the Plaintiff (patient) an
    untrained nurse pulled the trolley out from beneath the patient
    but in the course of so doing ran the wheels of the trolley over
    the feet of the man holding the mid-section of the patient as a
    result of which that person lost his grip and was unable to
    support the patient and the Plaintiff took most of the patient's
    weight. The Plaintiff and the other remaining person had to
    shift forward quickly and lower the patient onto the low bed to
    avoid dropping him on the floor. In the course of doing this
    the Plaintiff sustained injury to his lower back." 2. In his defence, the respondent denied the allegations contained in paragraph 3 of the Statement of Claim and further said that: "on or about the 9th day of March, 1984 the plaintiff alleged and reported to the defendant that on the 7th day of March, 1984 he felt pain in his back and lower stomach whilst lifting a patient with two assistants from an ordinary wheelchair to a shower chair." 3. The learned trial Judge summarised the evidence as to the circumstances of a lifting accident thus:
    "The plaintiff gave evidence as to the circumstances of the
    incident said to have occurred on 7th March 1984. He also
    called Mr. Goudie who gave evidence that he was one of three
    persons (another of whom was the plaintiff) lifting a patient
    from a trolley to a bed when the lift was disrupted by a nurse
    pulling out a trolley from underneath the patient such that the
    trolley ran over his feet. He did not say that that incident
    occurred on 7th March, 1984 but the nature of the incident
    described by Mr. Goudie was substantially similar to the
    incident described by the plaintiff in his evidence and pleaded
    in paragraph 3 of the statement of claim. The defendant called
    Mr. Harding who had no recollection of an incident as described
    in paragraph 3 of the statement of claim occurring on 7th March
    1984, although he did have a vague recollection of the plaintiff
    falling during the course of a three man lift when a patient was
    lifted from a trolley onto a bed. There are some similarities
    between the incident described by Mr. Harding and the incident
    said by the plaintiff to have occurred on 7th March 1984.
    However, there are some distinct differences. Mr. Harding said
    that the bed onto which the plaintiff was to be lifted was the
    same height as the trolley whereas the plaintiff asserted that
    the bed onto which the patient was to be lifted was lower than
    the height of the trolley. In addition, Mr. Harding thought
    that the trolley, prior to the lift, had been placed at an angle
    to the bed whereas it was the plaintiff's recollection that the
    trolley had been placed parallel to the bed. If the evidence
    were confined to the oral evidence given by the plaintiff, Mr.
    Goudie and Mr. Harding, it might well be said that the plaintiff
    has established that the incident described in paragraph 3 of
    the statement of claim took place on 7th March 1984." 4. The learned trial Judge then went on to consider two further matters in respect of which he reached conclusions which ultimately led him to disbelieve the appellant. The first matter related to a claim form under the Workers' Compensation Act dated 9 March, 1984 which was signed by the appellant, (Exhibit P3), and referred to an injury on 7 March, 1984. Like his Honour, I quote only part thereof:
    "'How did the injury occur? (please state exactly what you
    were doing at the time and explain fully how the accident
    occurred). (If a patient was involved, give name and UR
    number.) (there follows a passage in the handwriting of the
    plaintiff as follows:) Lifting patient (Mr. Kenny) with Gary and
    Denis from the ordinary wheelchair to shower chair and felt pain
    in my back and lower stomach.' At the foot of the form there
    appears the following declaration:- 'I hereby declare that the
    above particulars and those on the back hereof are correct in
    every particular, and that I have not withheld any information
    and that the injuries I have received were caused in a manner
    stated and in no other way whatsoever. ...'" 5. The appellant was born in what was then Yugoslavia on 5 October, 1944 and qualified as a medical practitioner there in 1966. He arrived in Australia on 25 March, 1968 and ultimately got employment with the respondent. As at 9 March, 1984, he could speak English adequately, but was unable to read English or draft answers to questions in English in a printed form without help. It was pointed out that he had grown up using a different alphabet as well as a different language. Charlie Gun, the head porter, agreed to write out the relevant answer on a piece of paper, and then the appellant copied what Gun had written on to the form that became Exhibit P3, and did not realise that what he had copied was inaccurate. Gun was not called by either side as a witness. 6. His Honour said:
    "It is apparent that the plaintiff is able to read (E)nglish.
    He read out loud in the witness box part of the claim form. It
    seems to me that the plaintiff, if he did transcribe an account
    of the incident onto the claim form, must have understood what
    he was writing. I reject his evidence to the contrary." 7. Mr. Martin, counsel for the appellant, criticised this passage in his Honour's reasons. He pointed out that the claim form was filled out seven years before he gave evidence, and that the evidence indicated that in the meantime the appellant had completed three different courses in written English. I acknowledge the force of this criticism, but nevertheless it seems to me that his Honour was entitled to accept that the appellant must have told Gun what Gun wrote down. The appellant could speak English reasonably well at the time, and it seems unlikely therefore that Gun misunderstood him, or that, for reasons best known to himself, Gun deliberately altered the appellant's version. 8. The second matter the learned Judge relied upon was the evidence of an orthopaedic surgeon called by the respondent, namely, Mr. E. T. Eriksen, and more particularly his evidence as to the history given to him by the appellant. 9. In his report of l May, 1984 Mr. Eriksen said:
    "He sustained an injury on 7.3.84 when he was lifting a patient
    with two other orderlies. The patient was a partial paraplegic
    and was being lifted from a commode chair to a wheelchair. He
    had hold of the legs and on doing so he experienced mid-line
    back discomfort which he indicated to be at the belt level. One
    hour after this lifting episode he developed a burning sensation
    of the mid-line low back at belt level but he continued for the
    rest of his working shift but that night was incapacitated by
    back pain and the next day could not attend work because of back
    pain and stiffness." (My underlining.) Mr. Eriksen said in evidence that in writing that report he relied on notes he made of the history given to him by the appellant, and not on what he had been told in a letter from the State Government Insurance Commission dated 19 April, 1984. In any event, the history differs as the following passage from the letter of 19 April shows:
    "He (the plaintiff) alleges that he suffered acute left-side
    strain when lifting a patient from a wheelchair to a shower
    chair on 7th March 1984. Mr. Popovic went off work following the
    alleged incident and as at the date of this letter he is still
    absent from work." (My underlining.) Mr. Eriksen had his notes with him in the witness box and they were inspected by counsel. It was not put to him that there was any conflict between his notes and his report. His Honour said:
    "I accept Mr. Eriksen's evidence and in particular I prefer his
    evidence where it conflicts with that of the plaintiff ... I am
    therefore faced with the following situation: the plaintiff is
    the only witness who says that the incident as described in
    paragraph 3 of the statement of claim took place on 7th March
    1984; the claim form, exhibit 'P3', is clear evidence that the
    incident as described in paragraph 3 of the statement of claim
    did not take place on 7th March 1984; this is confirmed by the
    history taken by Mr. Eriksen which is more in accord with the
    nature of the incident described in the claim form. In my view
    a combination of all of those factors compels the conclusion
    that the plaintiff was mistaken, if not misleading, when he gave
    his evidence at trial as to the nature of the incident that took
    place on 7th March 1984. I find, on the balance of
    probabilities, that the incident as described in paragraph 3 of
    the statement of claim did not take place on 7th March 1984. I
    find that on 7th March 1984 the plaintiff was involved in a
    lifting incident as described in exhibit 'P3'. It follows that
    the plaintiff has failed to make out his case that he was
    injured as alleged in paragraph 3 of the statement of claim." 10. Mr. Martin has put, clearly and forcefully, everything that could possibly be put in support of the appeal, but I am not persuaded that his Honour's findings were not open to him, or that for any other reason this Court should interfere. I would dismiss the appeal. 11. For the sake of completeness, I add that the appellant abandoned the ground of his appeal alleging that the learned trial Judge erred in failing to permit him an opportunity to amend his Statement of Claim.

JUDGE2 LEGOE J I agree.

JUDGE3 DUGGAN J I agree that this appeal should be dismissed for the reasons given by Matheson J.