Sanders v State of New South Wales

[2001] NSWCA 102

CITATION:	Sanders v State of New South Wales [2001] NSWCA 102
FILE NUMBER(S):	CA 40072/00
HEARING DATE(S):	9 April 2001
JUDGMENT DATE:	18 April 2001
PARTIES :	RONALD SANDERS v THE STATE OF NEW SOUTH WALES
JUDGMENT OF:	Meagher JA at 1; Handley JA at 2; Ipp AJA at 22

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	2993/98
LOWER COURT JUDICIAL OFFICER :	Armitage DCJ

COUNSEL:	M R Aldridge SC/A J Lidden (Appellant) R S McIlwaine SC (Respondent)
SOLICITORS:	Brydens Law Office Liverpool (Appellant) P W Turk & Associates Sydney (Respondent)
CATCHWORDS:	NEGLIGENCE - industrial accident - trial Judge finds case not proved - COURTS & JUDGES - adequacy of reasons of trial Judge
CASES CITED:	Workers Compensation Act 1987
DECISION:	Appeal dismissed with costs

40072/00

DC 2993/98

MEAGHER JA

HANDLEY JA

IPP AJA

RONALD SANDERS v THE STATE OF NEW SOUTH WALES

The appellant was required to load heavy trolleys onto trucks in the course of his employment with the respondent and claimed he had suffered an injury while doing this work. His action for damages was heard by Armitage DCJ. The Judge held that the case had not been proved. The grounds of appeal were that the Judge had erred in finding that the plaintiff had not proved his case. A further ground of appeal that the Judge had not given reasons was added by leave during the hearing.

dismissing the appeal, Ipp AJA dissenting: The Judge gave adequate reasons for rejecting the plaintiff ’s case.

ORDERS

Appeal dismissed with costs.

40072/00

DC 2993/98

MEAGHER JA

HANDLEY JA

IPP AJA

RONALD SANDERS v THE STATE OF NEW SOUTH WALES

JUDGMENT

1    MEAGHER JA: I agree with Handley JA.

2    HANDLEY JA: On 18 March 1994 the appellant sued his employer, the State of New South Wales which, in 1989, had employed him in the Department of Administrative Services, at the Government Stores depot in Alexandria. His statement of claim alleged that in May 1989 he was injured while pushing a trolley or trolleys with loaded cages in the course of loading a truck or trucks. The action was heard by Armitage DCJ on 18 and 19 November 1999 and on 14 January 2000 judgment was given for the defendant. The plaintiff has appealed seeking a new trial.

3    The plaintiff ’s evidence was that on the afternoon of 30 May 1989 while pushing a heavy cage onto the hydraulic tailgate of a truck the cage hit the safety bar on the tailgate. This did not give way as it should have and the cage stopped dead. The plaintiff “felt a twinge in his back”, later described as a “pain”. He continued to work normally until 14 June when he saw his general practitioner. He was off work for a while but was back early in July doing the same job but was off again for a while in August. Early in 1990 he suffered a hernia. After he had recovered from his hernia operation he returned to work and was able to work normal hours with physiotherapy twice a week until he accepted redundancy in the middle of the year.

4    Following his redundancy he felt that he could no longer do heavy work as he had problems standing and sitting. He received a disability pension in 1994 and said that since then: “his back had got progressively worse”. He said that at the date of trial he suffers from: “pretty bad pain” and is never pain free. Housework and odd jobs make it worse. He used to be a social golfer but has not played since the accident. He is unable to walk around the golf course. He says he now has difficulty with his left leg if he walks or sits too long.

5    A different picture emerged in cross-examination. He agreed that in 1991 he would have been able to bend to ground level, change a tyre, carry a jack, squat beside a vehicle and jack it up. He said he is not a cripple and he would still be able to do these things. He was also cross-examined about the workers’ compensation claim forms he signed in 1989 on 26 June, 24 August, 12 October and 7 December. He described his injury in the first claim form: “While travelling home by car after work I began to experience a numb feeling down my leg. Then over a 2 week period what began as a dull ache gradually turned into sharp pains in the area of my left hip, groin and thigh”. He gave the date as approximately 30 May and put a question mark in the space for the time of the injury. His second claim form was substantially in the same terms, but gave the date and time of injury as 30 May at 8 pm. His third and fourth claim forms repeated this description of his injury on 30 May, but did not specify a time.

6    The defendant called private investigators and showed video film of the plaintiff recorded on 2 December 1991, in August 1992, August 1994, between March and April 1998, and between April and May 1999. In the film exposed on 2 December 1991 the plaintiff was shown leaning over the engine bay of his car, closing the bonnet and opening the boot and then he is shown bending over and jacking up the car. He changes the tyre. He is shown bending over on his knees at the front of the car and he moves to the far side, bends over in the gutter and again jacks up the car.

7    The Judge found that at no time throughout those activities was there any outward sign that the plaintiff was experiencing any form of discomfort. Some hours later the plaintiff was seen on his carport roof and climbing down from it. The 1998 and 1999 footage showed the plaintiff walking and standing in the street, walking and bending in his garden, walking his dog and bending over his motor vehicle. The Judge again found that the plaintiff gave no indication that he was suffering any discomfort. Counsel for the appellant did not ask us to view the video films and come to different conclusions.

8    The Judge reviewed the medical evidence. This consisted of reports from treating doctors, radiologists and medical experts, but Dr Max Ellis, who was qualified for the plaintiff, also gave oral evidence. Dr John, the plaintiff ’s general practitioner, saw him on 14 June 1989, sent him for x-rays and diagnosed acute low back strain which he stated: “could have possibly been caused or aggravated by the nature of his work i.e. lifting or pushing heavy weights, bending etc”. The doctor’s clinical notes on 14 June state: “No r/o trauma” (sic).

9    A CT scan was taken on 13 September and he was seen by Dr Giblin on 14 September. The latter recorded in his report of 7 March 1991 a history that the plaintiff: “after driving home from work … developed pain in his right leg. This was in May 1989. He then developed pain in the right buttock region which he’d had ever since that time. The pain was particularly worse with twisting and after working all day” (emphasis supplied). The plaintiff had complained to Dr John on 14 June of pain in his left hip, left thigh and back regions. Dr Giblin recorded a further history later in his report: “He developed pain in the back whilst twisting after having worked for a while and the pain became more severe on the way home”. Dr Giblin said that the plaintiff ’s x-ray and CT scan were “normal for his age”, and a lumbar myelogram on 29 November 1989: “showed no significant focal disc protrusion or abnormal narrowing of the spinal canal”.

10    Dr Conrad saw the plaintiff on 8 July 1991 and recorded this history: “On the day in question he is not exactly sure of the day but it was in May 1989, he had been doing a lot of lifting at work and on his way home in the car he started noticing pain in his back radiating down into the left buttock and left leg”. A further CT scan of his lumbar spine taken by Dr Gale on 29 April 1993 showed no significant change since the films of 29 November 1989 and “minor disc bulging at L3/4, L4/5, and L5/S1”.

11    The other early reports were from Professor Gye and Dr Burke. Professor Gye saw the plaintiff on 18 September 1991 and recorded this history: “he was a front seat passenger in a car travelling home from work … when he noticed a sensation of numbness and tingling in his left foot. Over a period of 2 weeks this sensation extended to his left calf and to his left hip and later he developed low back ache. There had been no precipitating episode at the Government Stores where he worked as a storeman and packer”. Professor Gye’s opinion and comment were as follows:

“4.1 Diagnosis: I cannot find any clinical evidence of a work-related condition affecting Mr Sanders’ lower back or left lower limb.
4.2 Present condition:
(1) He complains of continuing symptoms involving his lower back and left lower limb which are unchanged since their onset while he was a passenger in a motor car on 30 May 1989.
(2) The only precipitating factor was sitting in a car, but there is no evidence of any significant incident or injury occurring at work whilst employed as a storeman and packer.
(3) I can find no clinical evidence of any significant abnormality affecting the lumbo-sacral spine, the associated muscles or ligaments or the connected lumbo-sacral nerve roots.
…
4.3 Fitness for work: In my opinion, Mr Sanders is fit to undertake any form of employment that he can find without any restrictions.
4.4 Relationship between onset of symptoms and work: There is no evidence of any alleged injury nor can I find any evidence of any physical abnormality …
4.5 Medical impairment: I do not consider that Mr Sanders is suffering from any organic condition likely to give rise to permanent medical impairment”.

12    Dr Burke, in his report of 2 October 1991, noted that the plaintiff: “would not say that he had suffered an injury or accident. However he had gradually developed a ‘feeling of injury’ … all was well until 30th May 1989. On that day he was being driven home as a passenger in a workmate’s car. While he was being driven he noticed a strange feeling in his left calf and foot. This gradually became worse and the pain spread up to the left hip and groin”. Dr Burke’s opinion was:

“This man has generalised degenerative spondylitis in the lumbar region. The history would indicate incipient nerve root embarrassment bilaterally, although nerve root embarrassment is not confirmed on radiological studies. The manner of onset of symptoms is consistent with a degenerative aetiology. There is no evidence of an injury to the back having occurred at work. His work capacity has not been adversely affected by the type of work that he did. Indeed the type of work that he did might be seen to be beneficial, in that it could have thwarted the development of further stiffness from his degenerative spondylitis”.

13    The plaintiff commenced proceedings in the Compensation Court on 19 July 1991. His application for determination, tendered by the defendant, stated that his injury occurred in “May 1989” and was due to “nature and conditions of the Applicant’s work involving heavy lifting, bending, twisting”. There was no allegation of a frank injury. The proceedings were settled by a consent award on 10 November 1992 pursuant to terms of settlement signed that day by counsel and by the plaintiff. They contained admissions by the plaintiff that at all times prior to 19 June 1990 he had been paid either wages or workers’ compensation and: “that after 18 June 1990 the applicant has not been incapacitated by any work injury and medical and hospital expenses since that date are not related to work injury”.

14    The Judge reviewed the whole of the medical evidence and concluded:

“Having regard to the whole of the medical evidence, the evidence of the plaintiff himself, and the evidence of the two private enquiry agents, I have come to the view that the plaintiff has not proved injury, disability, loss or damage as pleaded in paragraph 7 of the Statement of Claim”.

15    This statement, when read with paras 6 and 7 of the Statement of Claim, means that the Judge found that the plaintiff did not suffer a frank injury while pushing trolleys at work in May 1989. Later in his reasons he said:

“So far as the medical evidence is concerned, in my view it is heavily in favour of the proposition that the plaintiff in May 1989 suffered no injury in the course of his employment”.

16    The Judge then referred to the medical evidence in report form from Professor Gye and Dr Burke who saw the plaintiff in 1991 and from Drs Bornstein and Cameron, who each saw him on four occasions over four years. It is clear that this was the medical evidence which the Judge said was heavily in favour of the proposition that the plaintiff had suffered no injury in the course of his employment in May 1989, and that the Judge had accepted this evidence.

17    The Judge then dealt with the evidence of Dr Max Ellis, who had been qualified for the plaintiff. He said:

“So far as Dr Max Ellis is concerned I am unable to accept his evidence that the plaintiff was injured at work and I am unable to accept his evidence as to the extent of the plaintiff ’s present incapacity. In his written reports Dr Ellis describes the plaintiff as ‘unemployable’. That in my view is plainly not so. I was not impressed by the doctor’s efforts to explain away the plaintiff ’s actions in December 1991. The plain fact is that the plaintiff gave not the slightest sign of any discomfort in the course of an activity which involved bending, stooping, the operation of a jack and the changing of tyres”.

18    The Judge concluded:

“So far as the plaintiff himself is concerned there was nothing in his evidence which caused me to have any particular reservations about the truthfulness of what he told me. The fact is that I have been persuaded by the compelling evidence called on behalf of the defence that the plaintiff suffered no injury at work in May 1989, nor did he suffer disability, loss or damage”.

19    The only relevant grounds of appeal in the notice of appeal as filed were that the Judge had erred in not finding that the plaintiff had proved his case and had suffered injury in the course of his employment. A further ground of appeal, based on the lack of adequate reasons, was added by leave during the hearing.

20    Mr Aldridge SC, who appeared for the appellant, but had not appeared at the trial, relied heavily on the Judge’s statement that there was nothing in the plaintiff ’s evidence which caused him to have any particular reservation about its truth, but properly understood this was only a statement that the Judge had not rejected the plaintiff ’s evidence on demeanour grounds. It was nevertheless clear that the Judge did reject the plaintiff ’s evidence and did so because of the evidence, oral and in video film, of the two private enquiry agents called by the defendant and its medical evidence to which he had referred.

21    In my opinion the Judge gave adequate reasons for rejecting the plaintiff ’s case and I would dismiss the appeal with costs.

22    IPP AJA: In 1989 the appellant was employed by the respondent. One of his tasks was to load trolleys weighing between 800 and 1000 lbs on to trucks by pushing them up a ramp and then on to the floors of the trucks concerned. A safety bar was positioned across the ramp to ensure that the trolleys would not roll backwards. To so load the trolleys, the appellant was required to “get a run up and exert extreme force”. The appellant needed to do this to get up enough speed to push the trolleys, manually and by his own strength, over the safety bar and on to the truck being loaded.

23    According to the appellant, on 30 May 1989, a heavy trolley he was so loading hit the safety bar and the trolley stopped dead. The appellant then felt a pain in his back.

24    The appellant commenced proceedings against the respondent, alleging that he had been injured in attempting to push the trolley over the safety bar. He contended that his injury and consequential damages were caused by the respondent’s negligence.

25    At trial it was accepted that the respondent had not provided the appellant with a safe system of work and was negligent.

26    The main issues at the trial were whether the appellant was injured in the course of his employment as he alleged and, if so, whether he had sustained a serious injury as defined by the Workers Compensation Act 1987 as amended.

27    Armitage DCJ dismissed the appellant’s claim. The core of his reasoning is contained in the following three paragraphs:

“So far as the [appellant] himself is concerned there was nothing in his evidence which caused me to have any particular reservations about the truthfulness of what he told me. The fact is that I have been persuaded by the compelling evidence called on behalf of the defence that the [appellant] suffered no injury at work in May 1989 nor did he suffer disability, loss or damage.”
And:
“So far as the medical evidence is concerned, in my view it is heavily in favour of the proposition that the [appellant] in May 1989 suffered no injury in the course of his employment. Both Dr Bornstein and Dr Cameron saw the [appellant] on four occasions over a period of just over four years and both were adamant that his condition, when they saw him, was common to persons of his age and unrelated to his employment”.

And:
“Having regard to the whole of the medical evidence, the evidence of the [appellant] himself and the evidence of the two private inquiry agents, I have come to the view that the [appellant] has not proved injury, disability, loss or damage …”

28    His Honour’s finding that there was nothing in the appellant’s evidence “which caused me to have any particular reservations about the truthfulness of what he told me” means that the learned judge did not find against the appellant by reason of demeanour or any internal or other inconsistencies in his evidence. For the purposes of this appeal, that part of the appellant’s case that depended on the truthfulness of his testimony must be accepted. This includes the appellant’s testimony that he was injured at work on 30 May 1989 in the manner he described.

29    There was a considerable amount of material involving statements and admissions by the appellant himself which cast doubt upon whether he was injured on 30 May 1989 as he alleged. Armitage DCJ, however, believed the appellant’s testimony as given at the trial and it is not open to this Court to make factual findings against the appellant contrary to the view taken by his Honour.

30    Different considerations apply to the issue whether the appellant’s accident resulted in any injury. Armitage DCJ said that his view in this regard was based on the whole of the medical evidence, the evidence of the appellant himself and the evidence of the two private inquiry agents. The considerations are different as his Honour’s finding that the accident did not cause the appellant injury was based on documentary evidence and evidence that was in effect common cause or admitted. It was not based on credibility.

31    The appellant called medical evidence at the trial that tended, generally, to establish that the accident at work on 30 May 1989 caused at least a pre-existing degenerative condition of his lumbar spine to be aggravated. Armitage DCJ did not accept this evidence, but it provides a helpful background against which the other evidence can be considered. I shall refer briefly to it.

32    Dr Huckstepp, a general practitioner, said that the appellant’s accident at work on 30 May 1989 had aggravated pre-existing degenerative changes in the appellant’s lumbar spine. Dr Conrad, a medical specialist, said that the appellant sustained a back strain as a result of an injury at work in 1989. Dr Giblin, an orthopaedic surgeon, said that the appellant “appears to have intermittent discomfort in his lumbar spine consequent upon the accident described”. Dr Ellis, a medical specialist called on behalf of the appellant, said that the appellant was “unemployable” as a result of his injury at work but his evidence was not accepted by Armitage DCJ.

33    The respondent called medical testimony that, generally, tended to establish that, when the doctors concerned examined the appellant, they could find no sign of a work-related injury. His Honour relied on this evidence.

34    Armitage DCJ specifically referred to the evidence of Dr Bornstein, an orthopaedic surgeon. The learned Judge pointed out that, when he first saw the appellant, Dr Bornstein was unable to find a cause for the pain complained of and stated that he did not consider the appellant’s employment to have been a “substantial contributing factor”. Dr Bornstein found degenerative changes in the appellant’s lumbar spine but said that he did not “consider that his current condition is related to his employment”.

35    Dr Bornstein’s opinion, however, was directed solely to the appellant’s condition on the date of the examination. He said nothing about the questions whether the appellant suffered an injury at work as he alleged and, if so, whether that injury aggravated the existing degenerative changes for a period that ended prior to the examination on 24 August 1994.

36    The question of aggravation of the appellant’s existing condition arose in the testimony of Dr Cameron, a consultant surgeon, on whom Armitage DCJ also expressly relied. Dr Cameron stated that he examined the appellant on 22 August 1994 and the appellant “gave a history of strain injury to his lower back on 30 May 1989 consistent with a diagnosis of soft tissue injury temporarily aggravating pre-existing degenerative lumbar spondylosis”. Dr Cameron considered that:

“Any injury sustained during employment … has now healed and aggravation of constitutional degenerative cervical and lumbar spondylosis has ceased”.

37    Dr Cameron’s evidence supported a finding that the appellant had suffered a soft tissue injury while at work, which, for a while, aggravated his pre-existing degenerative condition, but which, by 22 August 1994, had healed.

38    At trial, the respondent tendered reports of Professor Gye who saw the appellant on 18 September 1991 and “could find no clinical evidence of a work related condition affecting the [appellant’s] lower back or left lower limb.” According to Professor Gye:

“There is no evidence of any alleged injury nor can I find any evidence of any physical abnormality. Any question of cause and effect is entirely a hypothetical one”.

He said that there was no evidence of any significant incident or injury occurring at work.

39    Professor Gye did not, however, express an opinion as to whether the appellant suffered a work related injury in May 1989, the effects of which may have ceased when he examined the appellant in September 1991.

40    The respondent also tendered reports of Dr Burke, a surgeon, who said that the appellant had generalised degenerative spondylitis in the lumbar region and the history “would indicate incipient nerve root embarrassment bi-laterally”. He said that the manner of onset of symptoms was consistent “with a degenerative aetiology”. He concluded:

“There is no evidence of an injury to the back having occurred at work”.

41    This statement has to be seen in the light of the fact that, when the appellant saw Dr Burke, as the latter put it, the appellant “would not say that he had suffered an injury or accident”. It seems to me that, in this context, Dr Burke’s reference to an absence of evidence of a work related injury was merely a reference to the fact that the appellant “would not say that he had suffered an injury or accident”. I do not think that Dr Burke’s testimony, on its own (or together with the other medical evidence to which I have referred) is a reliable foundation for a finding on the issue of causation.

42    In summary, nothing in the respondent’s medical evidence detracted from the opinions expressed by those medical practitioners who said that, by the accident of 30 May 1989, the appellant aggravated his pre-existing condition.

43    Armitage DCJ appears to have regarded the opinion of Drs Cameron and Bornstein and the other medical practitioners called by the respondent (that the appellant was not suffering from any work related injury when they examined him at various times from September 1991 to 1994) as proving that the appellant had not suffered injury in the accident in May 1989. That is not correct. The appellant may well have suffered such an injury and the effects may have ceased by the time he was seen by those medical practitioners. Indeed, as I have pointed out, that possibility was accepted by Dr Cameron.

44    Additionally, there was videotape evidence that, according to the learned judge, depicted the appellant on 2 December 1991 and in August 1992 and August 1994 as walking and standing in the street, walking and bending in his garden, walking his dog and bending over his motor vehicle. His Honour said:

“On no occasion is any indication given by the [appellant] that he is suffering any discomfort”.

45    Armitage DCJ described the incident on 2 December 1991, depicted on the videotape, in the following terms:

“At 11.46 am the [appellant] is shown leaning over the engine bay of his car. At 11.50 he is shown closing the bonnet and opening the boot. At 11.51 he is shown bending over and jacking up the car. There is no sign of discomfort. He changes the tyre and again there is no sign of discomfort. He is shown bending over on his knees at the front of the car; he then moves to the other side of the car, bends over in the gutter and jacks up that vehicle at 11.56. At no time throughout those activities is there any outward sign that the [appellant] is experiencing any form of discomfort. At 3.33 pm that same afternoon [the inquiry agent] took a video recording of the [appellant] on his car port roof and climbing down from it”.

46    The inquiry agents testified, generally, that they had observed the behaviour of the appellant as depicted on the video. Their evidence was not disputed.

47    The video was not put to the appellant in cross-examination. Nevertheless, cross-examining counsel suggested to the appellant that he was able to do the things observed by the inquiry agents and shown on the video, and he agreed. The appellant therefore appears to have accepted the video evidence. It is presumably this evidence of the appellant on which Armitage DCJ relied when he concluded that the appellant had not proved that he suffered an injury on 30 May 1989 as alleged in the statement of claim.

48    It may be accepted that the videotape evidence and the evidence of the inquiry agents support the medical testimony that towards the end of 1991 the appellant was no longer suffering from the effects of any work related injury. Again, however, that evidence, on its own, says nothing about whether the appellant was injured at work in May 1989 and whether, in consequence, he suffered a disability which continued until some time before he was seen by Professor Gye.

49    In the circumstances I consider that the finding by Armitage DCJ that the appellant suffered no injury at work in May 1989 and that he did not suffer any disability, loss or damage is not supported by any relevant evidence and cannot be upheld.

50    The argument advanced by the respondent to the effect that the appellant had not proved injury and disability sufficient to meet the threshold levels required by s 151G and s 151H of the Workers Compensation Act depends upon factual findings as to the nature, extent and duration of the appellant’s injuries. In view of my conclusion that the findings made by Armitage DCJ cannot be upheld, I do not think that it is open to this Court to substitute its own findings (which, essentially, depend upon credibility) on these issues.

51    In the circumstances, I would make the following orders:

(a) The appeal should be upheld.

(b) The orders made by Armitage DCJ set aside.

(c) A new trial should be held.

(d) The costs of the trial before Armitage DCJ to be in the cause.

(e) The respondent to pay the appellant’s costs of the appeal.
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