Scilipote v G and D MacChion Pty Ltd and Girvan Qld Pty Ltd

[1996] QCA 497

IN THE COURT OF APPEAL	[1996] QCA 497
SUPREME COURT OF QUEENSLAND

Appeal No. 187 of 1995

Brisbane

Before Fitzgerald P.
Davies J.A.
Lee J.

[Scilipote v. G. & D. Macchion P/L & anor.]

BETWEEN:

GIORGIO SCILIPOTE

(Plaintiff) Appellant

AND:

G. & D. MACCHION PTY LTD

(First Defendant) First Respondent

AND:

GIRVAN QUEENSLAND PTY LTD

formerly GIRVAN BROS. (QLD.) PTY LTD

(Second Defendant) Second Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 6 December 1996

This appeal seeks an increase in the damages awarded to the appellant from $100.00 to $250,000.00,

together with orders that the respondents pay the appellant’s taxed costs of the action and appeal.

On 3 November 1986, the appellant, who was then employed by the first respondent as a painter, stepped into a hole in a concrete floor at a building site at Toowong. The first respondent was a

subcontractor to the second respondent, and both admit that they are liable to compensate the appellant

for any injury he sustained.

Shortly after the appellant fell, Mr Macchion, the principal of the first respondent, saw him limping and,

although the appellant said that it was only a scratch, took him to the infirmary on site where he was

treated for abrasions to his leg which cleared up in a few weeks. The award of $100.00 damages was

for pain and suffering caused by those abrasions. It was not submitted that that amount was

inappropriate for that injury.

However, the appellant claims that he injured his back when he stepped into the hole and, to quote

para. 15 of his Amended Statement of Claim, his injuries “consisted of damage to a previously non-

symptomatic degenerative condition in the area of the fourth and fifth lumbar vertebrae and first sacral

vertebrae and involving the intervertebral disc between the fifth lumbar vertebrae and the first sacral

vertebrae”. According to para. 15A, the appellant also “has suffered post traumatic stress and/or

anxiety adjustment disorder”. The appellant ceased to work for the first respondent in mid-1987 “...

when pain became ... severe ...”: para. 16. That paragraph continues, and para. 17 provides:

“16.

... He underwent a myelogram on the 18th August, 1987. The operative treatment produced side effects of abnormal bone growth and he underwent further treatment therefor in 1988. He underwent a bilateral postero-lateral fusion of his spine from the fourth lumbar vertebrae to the first sacral vertebrae on 21st September, 1987. He has suffered and will continue to suffer pain in respect of his injuries. By reason of the injury he has been placed in a position whereby he suffered the onset of pain and disability in circumstances whereby, but for the accident, he may not have done so at all or may not have done so for many years after the date of the injury.

17.

The plaintiff has suffered economic loss and an impairment of his earning capacity. The plaintiff is no longer capable of working in the course of his usual employment as a painter. He is at significant risk on the open labour market. He has suffered economic loss.”

The trial judge found that the appellant “suffered no back injury whatever in the fall”. Implicit in that

finding is that he did not aggravate his pre-existing back condition when he fell. He had “complained

to Mr Macchion about back pain in late 1985 and early 1986 when employed by the first [respondent]

at [another job at] Brassall”, but “made no complaint about his back to Mr Macchion at the Toowong

site”. His Honour expressly rejected evidence of complaints by the appellant at that time which was

given by the appellant’s wife and two workmates. He also rejected evidence that the appellant was

placed on light duties. It was found that, after the accident and his abrasions had been treated, the

appellant not only resumed his normal duties but worked overtime, and that this pattern of work

continued for some months. There was evidence to support these findings, and it was open to his

Honour to resolve the conflicts of evidence in the manner in which he did.

Some years earlier, on 9 June 1982, the appellant’s general practitioner, Dr Melvin Court, had treated

the appellant for lumbo-sacral back pain. On 7 January 1987, the appellant consulted Dr Court

concerning gout. The trial judge was not satisfied that there was no complaint concerning back pain on

that visit, and again that was a course which was open to his Honour on the evidence. The appellant

consulted Dr Court about low back pain which he experienced after he had been roller painting at the

Toowong site at the beginning of May 1987. Dr Court again diagnosed lumbo-sacral back pain and

prescribed an anti-inflammatory drug.

Nothing stated in argument on behalf of the appellant casts doubt on the findings thus far referred to, or the following findings:

“In early June 1987 the plaintiff was painting a roof at Corinda with a fellow employee,
Mr Charles Mower. The plaintiff then complained of a sore back to Mr Mower.

On June 15, 1987 the plaintiff again visited Dr Court. Dr Court found, as he put it, a ‘[f]lare-up of low back pain related to type of work painting roof’ [sic]. This time there was radiation of the pain into the left thigh. On the same day the plaintiff stopped working because of the intensity of the pain. Dr Court referred him to Dr Robert Cooke, orthopaedic surgeon.

On June 16, 1987 the plaintiff signed an application for worker’s compensation for acute back strain in which he said “First symptom happen when working at Toowong Railway Station. While painting back just started to pain’.

Dr Cooke saw the plaintiff first on June 23, 1987. The plaintiff gave a history of having low back pain which began when he was roller painting ‘a couple of months ago’. He told Dr Cooke that a week before his visit he was painting a roof when the pain was very severe and had been very bad since then. He told Dr Cooke that in the preceding November he had stepped into a hole at Toowong Village, but it had caused him no pain.

On June 29, 1987 the plaintiff signed a statement in connexion with his claim for worker’s compensation. It said:

‘I am employed by G. & D. Macchion P/L as a painter. On Monday 15/6/1987 we were painting Sunmap and I found that after working that day I could not continue as my back was too painful. I can’t relate my back problem to any specific incident, however approximately October November 1986 at the Toowong Centre at the Railway Station I fell through a cement ceiling that gave way making a hole big enough to have my leg fall into it. I did not think that I injured myself apart from some minor abrasions and cuts. I had no trouble with my back till around April 1987 when I started to get strong pain in my lower back radiating down into my left leg. I continued working however until 15/6/1987 when I could not continue so I consulted Dr Court at the West End Clinic. He referred me to Dr Cooke who took a CT Scan and recommend a Goldsthwaite Brace to relieve the symptoms. I have to go back to Dr Cooke on Wednesday 1/7/1987 to see what my continuing management will be because my back is no better. I find it difficult to move and have trouble sleeping.

I hereby apply for compensation as from 16/6/1987 and for before signing. I have personal knowledge of the matters dealt with in my statement and believe them to be true and correct.’ “

consideration of purchase of the back brace.

The trial judge held that “the most reliable evidence concerning the onset of the [appellant’s] symptoms

is that of his contemporary written statements and his accounts close to the events recorded by

doctors”, and his Honour rejected “the evidence that is inconsistent with those statements and

accounts”. On that basis, his Honour found that:

“... his back pain began six months after the fall and that he suffered no back injury whatever in the fall. Had he done so, his symptoms would have been evident well before April 1987, probably within a week of the fall.

Beginning in April 1987 the plaintiff began to suffer from back pain probably as a result of the effect of his performing heavy duties on a degenerate back. His pain has become worse since. He has been seriously disabled by it and has undergone surgical and other treatment.”

The correctness or otherwise of the proposition that the appellant’s symptoms would have been evident

well before April 1987 if he had injured his back when he stepped into the hole on 3 November 1986

is, in our opinion, the central issue on this appeal. If the proposition last stated by his Honour is

supported by evidence, there is nothing in the appellant’s various generalised assertions before this

Court which merits further discussion; what was submitted essentially consisted of criticisms of the trial

judge’s views of the witnesses and their evidence which, like the various versions of events given by the

appellant in evidence and to different doctors, did little to elucidate the merits of the appellant’s claim.

The trial judge did not elaborate on what led to his conclusion that, had the appellant injured his back

when he fell, “his symptoms would have been evident well before April 1987, probably within a week

of the fall”. It is necessary to determine whether there was medical evidence which supported that view. Apart from what is referred to above, his Honour referred only to a passage from a report by Dr

Walters. His Honour said:

“On July 18, 1989 the plaintiff was seen by Dr John Walters, orthopaedic surgeon, who examined him at the request of his solicitors. Dr Walters in his report of August 1, 1989 recorded the plaintiff’s account of the onset of his back pain as follows:

‘He related an incident which occurred on 3rd November 1986 when he was working at the Toowong Village. When walking on a concrete floor his left leg went down a hole, such that his L buttock abutted the end of the hole. He said that there were several abrasions on his left leg and right knee, but he did not feel significant pain at the time, and continued to work that day, and subsequently. He did report the incident to a nursing sister.

“Several months” after the incident Mr Scilipote described pain across his lower lumbar region. He attended his General Practitioner, and although X-Rays were advised those were not performed as Mr Scilipote was very busy at work at that time. His back pain however slowly increased, such that he ceased work in June 1987 because of persistent pain.

I understand he has been in receipt of Workers Compensation benefits since that time.’

Since seeing Dr Walters the plaintiff has given accounts of the onset of his back pain inconsistent with the accounts I have referred to.”

A number of doctors provided reports and gave evidence, which must be considered in the context of

the appellant’s various accounts at different times. It is not necessary to record the numerous passages

in the appeal record referred to by the parties. The issue, as we have indicated, is whether it was open

to the trial judge to hold that, had the appellant injured his back when he fell on 3 November 1986, “his

symptoms would have been evident well before April 1987, probably within a week of the fall”.

It is, of course, not necessary that all the medical evidence support or be consistent with that view, and,

not surprisingly, the opinions expressed were not all identical. However, to put it at its lowest, the evidence of a number of doctors supported the trial judge’s conclusion. Indeed, consistently with the

preponderance of medical opinion, the appellant’s case, although not based solely on the proposition

that the fall produced immediate back symptoms, placed that at the forefront of his allegations.

In our opinion, his Honour’s findings were not only available to him but well justified by the evidence

and the appeal should be dismissed, with costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 187 of 1995

Brisbane

[Scilipote v. G. & D. Macchion P/L & anor.]

BETWEEN:

GIORGIO SCILIPOTE

(Plaintiff) Appellant

AND:

G. & D. MACCHION PTY LTD

(First Defendant) First Respondent

AND:

GIRVAN QUEENSLAND PTY LTD

formerly GIRVAN BROS. (QLD.) PTY LTD

(Second Defendant)	Second Respondent
Fitzgerald P. Davies J.A. Lee J.

Judgment delivered 6 December 1996

Judgment of the Court

APPEAL DISMISSED, WITH COSTS TO BE TAXED.

CATCHWORDS:	CIVIL - PERSONAL INJURY - quantum of damages - appellant awarded $100 damages for pain and suffering, claims that he should have been awarded $250,000 - appellant gave various accounts and other inconsistencies in evidence - whether it was open to the trial judge to hold that, had the appellant injured his back in the relevant accident in November 1986 “his symptoms would have been evident well before April 1987, probably within a week of the fall”.
Counsel:	Mr S. Di Carlo for the appellant Mr D.B. Fraser Q.C. for the first and second respondents.
Solicitors:	Egans for the appellant. W.H. Tutt & Quinlan for the first and second respondents.
Hearing Date:	25 September 1996