Smith v Gellibrand Support Services Inc

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0247

LORRAINE SMTH	Appellant
	v
GELLIBRAND SUPPORT SERVICES INC	Respondent

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JUDGES	OSBORN and BEACH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 December 2013
DATE OF JUDGMENT	13 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 368
JUDGMENT APPEALED FROM	County Court of Victoria, Judge Smith, 4 December 2012

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ACCIDENT COMPENSATION - Appeal - Jury trial - Adequacy of charge to jury - Watts v Rake (1960) 108 CLR 158 considered - Purkess v Crittenden (1965) 114 CLR 164 considered - Vicissitudes - Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 applied - Adequacy of pain and suffering damages - Adequacy of pecuniary loss damages - Contributory negligence - Whether contributory negligence open - Apportionment - Whether jury's apportionment open.

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APPEARANCES:

Counsel

Solicitors

For the Appellant

Mr A D B Ingram with

Mr G A Worth

Melbourne Injury Lawyers

For the Respondent

Mr T J Casey QC with

Ms J M Forbes

Thomsons Lawyers

OSBORN JA

BEACH JA:

Introduction

Mrs Lorraine Smith, the appellant, was employed by Gellibrand Support Services Inc, the respondent, between 1998 and 13 December 2006. During this period, the appellant worked as a carer and disability support worker at residential facilities for disabled persons conducted by the respondent. In particular, the appellant worked in the respondent’s premises in Linnet Street, Altona until September 2004, and then from that time until the end of her employment at the respondent’s premises in Hanmer Street, Williamstown.

Following her employment with the respondent, the appellant issued a proceeding against the respondent in which she claimed that she sustained back injuries in the course of her employment. Specifically, the appellant alleged that she suffered injuries by reason of the nature of the duties required of her in the course of her employment between 20 October 1999[1] and 13 December 2006 and as a result of specific incidents that occurred on 7 October 2003 and 13 December 2006. In the proceeding below, the appellant claimed damages from the respondent, alleging that her injuries were caused by the negligence of the respondent and/or by breaches by the defendant of the Occupational Health & Safety (Manual Handling) Regulations 1999.
[1]20 October 1999 is the day upon which s 134AB of the Accident Compensation Act 1985 (Vic) commenced operation.

The appellant’s proceeding was heard before Judge Smith and a jury. After a 10 day trial, the jury returned its verdict by giving the following answers to the following questions:

1.Was there any negligence or breach of statutory duty on the part of the defendant which was a cause of the plaintiff’s injury, loss and damage? --- Yes.
2.a) In what amount do you assess the plaintiff’s pain and suffering damages? --- $75,000.
b)In what amount do you assess the plaintiff’s loss of earnings damages?[2] --- $186,500.

3.Was there any contributory negligence on the part of the plaintiff which was a cause of her injury, loss and damage? --- Yes.
4.By what percentage is it just and equitable to reduce the plaintiff’s damages having regard to her share in the responsibility for her injury, loss and damage? --- 60 per cent.[3]

[2]The reference to loss of earnings damages was, in the context of this trial, clearly a reference to pecuniary loss damages as defined in s 134AB(37) of the Accident Compensation Act 1985.

[3]In fact, the foreman of the jury, in announcing the jury’s answer to this question said: ‘We’ve got defendant 40 per cent responsible, plaintiff 60 per cent responsible.’

On 4 December 2012, Judge Smith entered judgment for the appellant in the sum of $93,163 in accordance with the verdict of the jury. This amount was calculated by adding to the amounts assessed by the jury damages in accordance with the principles laid down in Fox v Wood,[4] agreed by the parties in the sum of $6,448, deducting the sum of $55,999 pursuant to s 134AB(25) of the Accident Compensation Act 1985 (‘the Act’), reducing the amount thus arrived at by 60 per cent pursuant to s 236(1) of the Wrongs Act1958 (Vic) and then adding damages in the nature of interest agreed in the sum of $8,383.
[4](1981) 148 CLR 438.

In this appeal, the appellant challenges the jury’s assessment of pain and suffering damages, the jury’s assessment of pecuniary loss damages, the trial judge’s directions in relation to Watts v Rake,[5] the finding that there was contributory negligence and (in the event that it was open to the jury to find contributory negligence) the jury’s apportionment of 60 per cent against the appellant.
[5](1960) 108 CLR 158.

The appellant’s grounds of appeal are as follows:

1.   It was not open to a jury properly instructed as to the law to award damages for pain and suffering of $75,000.
2.   Alternatively, the award of damages for pain and suffering of $75,000 was manifestly inadequate and/or contrary to the evidence or weight of the evidence.
3.   It was not open to a jury properly instructed as to the law to award the appellant no damages for future loss of earnings or earning capacity.
4.   Alternatively, the failure by the jury to award the appellant damages for future loss of earnings or earning capacity was manifestly inadequate and/or contrary to the evidence or the weight of the evidence.
5.   Alternatively, in the event that it is found the jury did award the appellant damages for future loss of earnings or earning capacity then the sum of $186,500.00 was manifestly inadequate and/or contrary to the evidence or weight of the evidence.
6.   The trial judge failed to direct the jury adequately with respect to the principle in Watts v Rake and/or the evidence relevant to the application of that principle and in particular the inadequate evidence at trial as to the nature, severity and likely future course of –
(a)   any degenerative condition affecting the Appellant’s spine;
(b)   any related or non-compensable medication [sic] condition from which the Appellant suffered.

7.   The trial judge failed to direct the jury adequately with respect to the principle in Watts v Rake in particular the failure by the respondent to discharge the evidentiary burden upon it in the event it was sought to submit that the appellant’s damages should be reduced by reason of –
(a)   any degenerative condition affecting the appellant’s spine;
(b)   any unrelated or non-compensable medical condition from which the appellant suffered.

8.   On the evidence before the jury it was not open to find contributory negligence on the part of the appellant.
9.   Alternatively, in the event that it was open to find contributory negligence against the appellant, it was not open to find that the apportionment of liability to the appellant for contributory negligence –
(a)   should be 60 per cent; or
(b)   extended beyond the incident of 13 December 2006.

The trial

At trial, the appellant gave evidence. The appellant called Rae Ryan (who described herself as a direct care employee of the respondent) and the appellant’s husband, Glen Smith. Additionally, the appellant called her treating general practitioner, Dr Bertram, a former treating chiropractor, Dr Kivimma, a treating musculoskeletal physician, Dr Jensen, a treating orthopaedic surgeon, Mr de la Harpe, a neurosurgeon, Mr Klug, and an orthopaedic surgeon, Mr Khan. Medical reports from a treating physician, Dr Poon, and a psychiatrist, Dr Strauss, were read into evidence by the appellant. Reports of a vocational assessment specialist, Mr Radley, and an expert registered nurse, Ms O’Shea,[6] were also read into evidence by the appellant.
[6]Ms O’Shea was the Director of No Lift Systems Australia Pty Ltd and co-author of a series of publications including the 2002 WorkSafe Victoria transferring people safely guidelines.

The respondent called evidence from Mr Stephen Hoyle, the CEO of the respondent. Mr Hoyle gave evidence that he had been the CEO of the respondent since the late-1990s. The respondent also called Mr John Vo. Mr Vo gave evidence that he started with the respondent in 2001 as a support worker at Linnet Street – from where he moved to Hanmer Street, also working as a support worker but with a ‘role in the office’. Mr Vo gave evidence that he was at the time of the trial the quality manager of the respondent.

The respondent did not call any medical evidence but admitted that the appellant had been seen on its behalf on four occasions by a general surgeon, Mr Battlay, on two occasions by a general surgeon, Mr Marshall, on two occasions by a psychiatrist, Dr Stern, and on one occasion each by an occupational physician, Dr White, and a psychiatrist, Dr Entwisle.

Various exhibits were tendered by the parties including:

(a) certificates of capacity for work completed by Dr Honigman dated 20 November 2003 and 12 December 2003;

(b) return to work plans bearing various dates in 2004;

(c) a document prepared by Mr Vo, and signed by the appellant on 31 May 2004, containing a list of what the appellant was ‘allowed’ to do at that time, and stating that Mr Vo was sure that the respondent would help out the appellant by ‘not asking her to do anything that is not in the list’;

(d) an incident report dated 21 December 2006;

(e) a chart of routines (tendered by the respondent) dated 14 April 2005;

(f) the respondent’s occupational health and safety policy of 2003;

(g) occupational health and safety reports of the respondent dated June and September 2003;

(h) a document prepared by the respondent relating to certain residents (including the one involved in the incident that occurred in December 2006);

(i) an occupational health and safety concern reports summary dealing with various matters in the period September 2006 to September 2009;

(j) the WorkSafe Victoria publication ‘transferring people safely’; and

(k) a one page document setting out agreed figures and a calculation of the plaintiff’s past loss of earnings in which it was stated: ‘had the plaintiff remained in continuous employment from December 2006 to the present date her net earnings inclusive of superannuation for that period would have been approximately $186,500’. This document also contained agreed multipliers to age 60 and 65 and an agreed figure for the appellant’s net rate of pay if she had remained in employment at the time of trial (inclusive of superannuation) - $720 net per week.

The appellant’s evidence at trial

The following summary of the appellant’s evidence is largely taken from an agreed summary of proceedings, facts and issues filed by the appellant in this appeal.

As at the date of trial, the appellant was almost 57 years of age, having been born on 28 January 1956. The appellant completed her schooling to form 2 level when 14 years of age. She suffered from dyslexia and had very limited reading and writing skills.

The appellant had a variety of jobs prior to commencing with the respondent including dropping clothing patterns around the city, shoe sales, working as a machine operator in the Maribyrnong ammunitions factory, and a screen printer at ACR. After her marriage in 1979, the appellant worked part-time as a kitchen hand at the Customs House.

In 1998, the appellant began working in a voluntary capacity with the respondent in Linnet Street. Later in 1998 she commenced paid employment as a support care worker. She said there were eight residents at Linnet Street. The appellant was mostly handling cerebral palsy residents, three of whom were severe cases in wheelchairs with no walking, communication or movement skills. The others had some partial non-verbal skills and were not wheelchair bound. The non-wheelchair bound residents required assistance with showering, but did not require use of a double lift technique where one staff member assisted under the arms whilst the other took the resident’s feet. Residents had to be repositioned in bed overnight or changed if the bed had been soiled. Some residents required assistance using a double lift technique and other less disabled residents required assistance to get out of bed with lifting of the legs and turning of the body and lifting up under the arms until they were comfortable on their walker. The appellant said that the only equipment available to move people around was an old hoist which was out of date, not used in practice and in respect of which she was not given any training. While she was at Linnet Street a new hoist was purchased. The appellant also had to shower, dry, dress (including shoes and socks) and take residents down to the kitchen for breakfast. Other tasks included supporting residents getting into the bus for outings, wheeling chairs out onto the hoist, getting on the bus and strapping the wheelchairs in after which the appellant would stay back and do housecleaning tasks such as mopping floors and general cleaning. The heaviest residents probably weighed 15 stone. Some of the residents had behavioural issues and could be aggressive. Some residents suffered from drop seizures and would require assistance from the floor under the arms when the seizure was over.

The appellant said that at Linnet Street, she worked four days a week 7:00am until 12:00 noon and then 3:00pm until 7:00pm. On Friday nights she did a sleepover shift starting at 3:00pm and finishing 12:00 midday the next day. Once a month she also completed a Tuesday sleep over. During the week two staff members were present but the appellant worked alone on sleepover until a staff member came the following morning. If assistance was required, the appellant could ring the team leader or the office - although she found the response to her requests for assistance frustrating, because she did not believe she received the assistance asked for. Assistance would be sought if residents were refusing to undertake relevant tasks, including simple tasks such as attending to hygiene or taking medication.

On 7 October 2003, the first specific incident about which the appellant makes complaint occurred. This incident occurred after the appellant had been assisting one of the residents who was using a walking frame to the lounge room where the resident wanted to use a recliner chair. The resident sat in the recliner chair but ascertained that it was not working. The appellant observed that the mechanism was not plugged in. The appellant said that she leaned over a coffee table to switch the switch on ‘and that’s when I felt something pop … in my back.’ The appellant completed a sleepover that night but by morning was not able to assist in respect of normal showering duties.

After a period off work, the appellant resumed work undertaking light duties, including washing linen, folding linen, washing towels and folding clothes. She received treatment from her chiropractor and local doctor. Dr Bertram (or Dr Honigman) was, during this period, certifying the appellant fit for restricted hours and restricted duties with no bending or lifting. The appellant also gave evidence as to other restrictions on her ability to support and care for residents delineated in return to work plans produced on and from 11 December 2003. The appellant said she thought these restrictions continued for at least a year.

In approximately September 2004 the appellant was moved to the respondent’s Hanmer Street premises. Hanmer Street was comprised of two adjacent premises, which were operated for 12 residents with intellectual difficulties who did not require manual handling assistance. The absence of manual handling was discussed with Mr Hoyle. At the time the appellant had wanted to remain at Linnet Street.

The appellant said that despite the restrictions to which she was subject while at Linnet Street, she continued to suffer pain when helping with the removal of laundry from the washing machine and accessing lockers.

The work at Hanmer Street involved interaction with residents including room management, shopping, swimming, attending appointments and supporting the residents (mostly involving prompting them). On a couple of occasions, if prompting did not succeed then it would be necessary for the appellant to assist with the washing of a resident or a like task. In addition, the appellant ran a weekly craft night, for a 12 month period, which involved setting up facilities, shopping and cooking for residents who were attending. The appellant said that she was assisted in the setting up and cleaning up by one of the residents. She complained about needing more assistance to Mr Hoyle and also to Mr Vo and the team leader of the respondent, in particular complaining that physically the work of conducting the craft night was too much for her. The appellant also had to assist those residents who had disabilities and used walking frames.

The appellant gave evidence that on 13 December 2006 an incident occurred (the second specific incident in respect of which the appellant makes complaint) when assisting a ‘big woman’ who suffered from an intellectual disability, who had poor mobility, was unsteady on her feet and required a lot of assistance. Shortly before this incident, the resident said that she needed to go to the toilet. The appellant requested that she wait until other staff were able to assist, but the resident started to move off on her walker. The appellant followed her to the toilet where the resident said to her ‘I need your help, I need your help’. The appellant had to assist the resident, move the walker out of the way and seat her on the toilet. Having completed her toileting, the appellant instructed the resident ‘Don’t move stay where you are’. The appellant then walked out of the room and back in again and assisted the resident to pull up her pants. In doing so the resident leant on the appellant hanging around her neck and causing the appellant to suffer further back pain. As a result of this incident, the appellant ceased work and did not subsequently return to work. The appellant said that there was a hoist at the premises that she had seen used once to assist this resident up onto the bed, but that the hoist would not fit into the bathroom that she was in at the time she was injured.

The appellant gave evidence of having received continuing chiropractic treatment from 2003 (which may have continued beyond this subsequent injury) and attending Dr Bertram. Dr Jensen referred her for physiotherapy and administered an epidural injection. There was a referral to the orthopaedic surgeon Mr de la Harpe.

The appellant gave evidence of the injury affecting many aspects of her life including her mobility, her ability to walk, her ability to get into and out of bed and to sleep, her ability to do chores such as vacuuming and shopping (which were mostly completed by her family) and her ability to complete personal hygiene matters (including showering). In addition the appellant gave evidence of the impact her injuries have had in respect of bush walking, fishing, sexual relations with her husband, financial strain, loss of self-esteem and playing with her grandchild. The appellant said that she was taking six Panadol tablets a day on average and had recently undergone further steroid injections and nerve root injections administered by Dr Poon. Dr Bertram had prescribed anti-depressant and anxiety medications for panic attacks and there had been a referral to a psychologist, Ms Saffron, with a series of appointments in August 2007.

The appellant was made a return to work offer in November 2007 to a position of support worker with physical limitations. The appellant said that such a position working with disabled people was ‘not realistic’. She further said that she rejected the offer because she lacked confidence in herself and had very low self-esteem. She gave evidence that but for her injuries she would have continued in employment until age 65.

In cross-examination the appellant said that although she said all her marriage problems were caused by her back injury only, she had separations and counselling prior to 2003 and had issues with each of her children that were a cause of anxiety and concern, as well as depression and anxiety because of her reading ability and being exposed to paperwork. She said that she had previously sought chiropractic treatment for neck, shoulder and back pain from time to time, about once a year, including for back pain arising from gardening on 1 September 2003. The appellant said that the pain that occurred after bending forward to put a plug in the socket (the 7 October 2003 incident) was different from the pain the month before when working in the garden.

Taken to return to work plans the appellant was unable to recall return to work plans being read to her or given to her and was unable to recall meeting the return to work co-ordinator on more than one occasion. The appellant agreed that an occupational therapist was involved in return to work plans from May until September 2004, and was again present after December 2006. She agreed that Mr Vo was the person responsible for co-ordinating her return to work from May 2004. The appellant agreed that she may have told Mr Vo on 21 May 2004 that she was not experiencing any problems with her return to work and her physical condition was still the same. The appellant disagreed that she would have told the occupational therapist that she was having no difficulties with her return to work program. She said she felt pressured to go back to work. The appellant said that in her return to work she was not in fact required to lift anything heavier than 2kgs. The appellant said she may have told her chiropractor that she could squat as long as she was careful and that she wanted to return to duties with restrictions and no sleepovers. She disagreed that she had told her chiropractor that she wanted the limitation on handling residents removed. The appellant said that if her chiropractor had recorded that there was no physical handling because the residents could help themselves adequately and lifting equipment was available then there might have been a mistake. The appellant agreed that she did want to stay at Linnet Street because she felt like she was abandoning the residents, but did not say that she would do everything in order to remain there. The appellant disagreed that by September 2004 both her chiropractor and general practitioner had given her a complete clearance for normal duties.

The appellant saw the occupational therapist at Hanmer Street for a work duties assessment. She agreed that she was concerned with her loss of sleepovers and penalty hours and the location of the premises. The appellant disagreed that she had told Mr Vo on 20 January 2006 that work at Hanmer Street was not affecting her injury and that it was just an ongoing thing and that she was aging. The appellant remained at work for eight days until completing an incident report dated 21 December 2006. She said she ‘wasn’t doing a lot, I was just prompting people’. She said she ceased work at Mr Vo’s suggestion or direction. The appellant agreed that the task of toileting the resident was one that she should not have been doing, even before the resident lent on her. She said that the other worker that evening was in the adjoining house. She said she had to assist the resident to sit on the toilet because she was very unbalanced and needed assistance.

The appellant said that it had been made patently clear to her that her employment was restricted and she was not to do the very sort of thing that occurred on 13 December 2006. However, the appellant said that this ‘wasn’t reality’. The appellant disagreed that that during 2003 there were no wheelchair bound residents at Linnet St. The appellant agreed that in her on-the-job training she had been shown how to move patients and shown lifting techniques. The appellant said that after suffering a seizure residents were weak and tired and needed assistance to get into a chair or to lay them to rest for a while, but the appellant agreed that to a large extent residents were able to help themselves. The appellant agreed that there was a designated routine of duties in accordance with a document dated 14 April 2005.

The appellant said that during 2012 she had been referred to a blood specialist, Dr Ding, because her blood platelet level was too high and that this was affecting her energy and leaving her tired. She required a blood transfusion and a bone marrow examination. The appellant said her platelets ‘seemed to be going back to normal now.’

In re-examination the appellant said that after sustaining injury in December 2006, she completed a report with the assistance of a co-worker, Warren Fraser, and that he had recorded her wording.

The appellant was further cross-examined and agreed that she did not raise any concerns about matters with the respondent, except a concern she raised in June 2006 in relation to knives which were said to be too sharp. The appellant said relevant to her craft sessions that there were not always staff to assist her in the set up and dismantling of those occasions. She disagreed with the suggestion that there was a particular staff member who would assist her.

In further re-examination, the appellant said that when undertaking her return to work program she did not receive supervision or training. The appellant said that, at the time of the incident in October 2003, to steady the resident she had to hold the resident under the arm pit and that the resident sat down or ‘plonked’.

The medical evidence

The medical evidence given at trial may be summarised as follows.[7] Dr Bertram gave evidence that he, and also Dr Honigman, had treated the appellant at the Altona Medical Centre where she had been a patient since August 1985. In 1999 there was some mid back pain after playing with her children. In September 2000 there were complaints of some depression and anxiety and Cipramil was prescribed. On 22 October 2003 Dr Honigman took a history of right sacroiliac joint pain into the right leg after putting a lamp plug into a power point. It was thought that the appellant was suffering decreased power in the L4-5 area with quadriceps muscle weakness.
[7]Again borrowing from the agreed summary of proceedings, facts and issues filed by the appellant.

Dr Honigman continued to treat the appellant in relation to her back pain and referred her for x-ray on 15 December 2003. From 21 November 2003 the appellant was permitted to return to work on restricted hours and restricted duties. From June 2004 Dr Bertram also saw the appellant in relation to her back injury. On 14 August 2004 the appellant was permitted to return to work on her normal duties and to continue with physiotherapy and chiropractic treatment. In November 2005, Dr Bertram referred the appellant to Dr Jensen. On 28 December 2006, Dr Bertram saw the appellant in relation to an episode of increased pain after the incident on 13 December 2006, and a further referral was made to Dr Jensen. A CT scan was performed on 28 December 2006 which demonstrated central and right paracentral protrusion at L5-S1 and minimal central canal stenosis at L4-5.

In February 2007, Dr Bertram referred the appellant to Mr de la Harpe who later arranged for a three level discography. Dr Bertram gave evidence of his referral to Dr Ding.

In cross-examination, Dr Bertram said that the referral to Dr Ding occurred because of an increased level of blood platelet. The appellant’s other health problems included iron deficiency, anaemia and gastric erosions. Dr Bertram said he was also prescribing Xanax for anxiety, but had not prescribed any analgesia. Dr Bertram said that Mr de la Harpe had reported back that the appellant was not a candidate for spinal fusion surgery.

Dr Bertram said that a person suffering from degenerative changes in the spine would probably more likely sustain back injury with heavy work and that even a mild incident such as bending over to put in an electrical plug or gardening can produce severe injury.

Dr Kivimaa gave evidence that she treated the appellant between June 1999 and April 2007. She treated the appellant on nine occasions from June 1999 to October 2003. On 1 September 2003 the appellant had attended with lower back pain worse on straightening up and gardening was mentioned. As the appellant had had problems in that area from previous times, the presentation did not surprise her. None of these attendances involved certificates for time off work. On 14 October 2003 the appellant reported lower back pain over the sacrum, more to the right side and worse on sitting or extending backwards for the past seven days. Dr Kivimaa described sciatica into the right posterior thigh of sudden onset when bending over. A letter was written to Dr Honigman and a certificate for 10 days off work written. Dr Kivimaa wrote a letter dated 14 November 2003 to Dr Honigman in which she said that the appellant should be able to return to work by the end of November. There were a further 17 attendances during 2004. Dr Kivimaa had the impression that the appellant’s pre injury work was strenuous involving lots of lifting. Dr Kivimaa referred to a CT scan of 27 February 2004 which reported a right foraminal disc protrusion displacing the right L2 nerve root. The results were forwarded to Dr Honigman by further letter dated 1 March 2004. Dr Kivimaa gave evidence of the appellant’s attendance on 19 December 2006 ‘left gluteal and lower back pain aggravated after helping a resident toilet’. Dr Kivimaa said that she reviewed the work restrictions and obtained comment from the appellant regarding those restrictions and believed the appellant ready for accelerated return to normal duties in about July 2004.

In cross-examination Dr Kivimaa described the consultation and treatment provided prior to October 2003. She said that she was assisting to obtain a return of the appellant to the workforce but that it was the general practitioner who handled any clearance for unrestricted duties. She thought that Linnet St was more suitable for her recovery. Treatment following the 2006 incident had continued until the last treatment in April 2007 and a latter re-examination in September 2008 following which Dr Kivimaa had moved to Queensland.

In re-examination Dr Kivimaa said that although the appellant was looking to return to normal duties, she did not provide the appellant with a clearance for normal duties. Dr Kivimaa said that the back pain with which the appellant presented in September 2003 at the base of her lower back was in a different site from her injuries some weeks later, in the gluteal sacroiliac region.

Dr Jensen gave evidence of referral from Dr Bertram with three attendances between 16 January 2006 and February 2006. He gave evidence as to his history and examination findings on those occasions. On 16 March 2007 there was a further referral relevant to an exacerbation of pain as a result of the 13 December 2006 incident. Dr Jensen referred to a CT scan of December 2006 concerning a previous right paracentral L5-S1 disc protrusion and he thought that on balance this was the probable cause of the appellant’s symptoms. Dr Jensen recommended an MRI scan, which was performed on 30 March 2007. Dr Jensen said the scan confirmed his previous opinion that L5-S1 was the likely cause of the appellant’s pain. He recommended a transforaminal nerve root injection for therapeutic and diagnostic purposes. This was performed on 10 May 2007 and was of some benefit. Dr Jensen referred the appellant to a psychologist. Dr Jensen last saw the appellant on 8 February 2008 and recorded that prescribed Norspan patches had not helped.

In cross-examination Dr Jensen confirmed treatment over a period of a month from January 2006 and a second period of treatment between March 2007 and February 2008. He agreed that recent radiology showed that the disc prolapse at L5-S1 had decreased in size and that sciatica and nerve pain should resolve. A return to work on restricted hours and restricted duties was recommended in mid 2007. Dr Jensen’s efforts were always to get the appellant back to work.

In re-examination Dr Jensen said that the heavy manual work performed by the appellant could have been one factor that would have contributed to her back condition with reference to the 2003 incident. On 8 February 2008, Dr Jensen recorded that the appellant was adamant she could not work in her previous field and he recorded that this was due to both physical and psychological reasons.

Mr de la Harpe gave evidence of a history of injury in 2003 when the appellant was at work and twisted, suffering immediate back pain and a popping sensation. She had eighteen months off then subsequently returned to work on light duties and in the course of that work was helping a disabled person off the toilet and suffered increasing back and posterior right side pain and had been off work since December 2007. There was no relevant history of back pain prior to the 2003 incident. Evidence of the plaintiff as to duties and time off work after the 2003 and 2006 incidents was put to Mr de la Harpe and he agreed that years of manual labour that the appellant had performed in the course of her duties had contributed to the degenerative state of her lumbar spine. Mr de la Harpe said that the MRI scan demonstrated a failing L5-S1 disc with a mild right-sided prolapse. Mr de la Harpe said that in order to determine whether the surgery would be advisable, he organised a provocative discography. At the end of 2008 Mr de la Harpe thought that the duration and significant symptoms suffered by the appellant meant she was unfit to return to a job involving manual labour. Mr de la Harpe thought that the appellant had significant symptoms of pain and was significantly incapacitated by pain as she had been prescribed morphine patches which would affect a social and recreational lifestyle. In October 2008 Mr de la Harpe thought that because of the appellant’s significant ongoing pain she was unable to be retrained or rehabilitated for suitable employment at that stage. The discography result showed degenerating changes in the discs but none clearly reproduced the clinical pain and so surgery would not be appropriate. Mr de la Harpe said that he thought that the appellant’s back pain was more diffuse and probably contributed to by more than one structure which was not surgically amenable. He said that it was the discs that were producing back pain and arthritis in the facet joint. Shown the MRI from 2011 Mr de la Harpe agreed that it showed no significant nerve compression.

In cross-examination Mr de la Harpe agreed that the L5/S1 prolapse had resorbed. He agreed that the radiology showed signs of wear and tear predating 2003. He said that he would be happy to accept if there was pre-existing degenerative change in the spine the appellant was more at risk of becoming symptomatic through relevantly minor trauma. He agreed that the appellant’s condition was a general wearing out of the spine. Mr de la Harpe said that the presenting problem was the back pain and posterior thigh pain but not sciatica.

In re-examination Mr de la Harpe said that he was happy to accept that the appellant’s employment had accelerated or contributed to her degenerative change that was occurring with age, but was unable to nominate the percentage.

Mr Klug gave evidence that he had examined the appellant on 5 May 2010 and 21 November 2011. He was asked to compare the radiological investigations including the MRI of 2011 and agreed that the disc prolapse had diminished. Mr Klug said that the degeneration in the appellant’s lumbosacral spine had developed over a considerable period of time. He was not told of any prior back symptoms. He accepted incidents of back pain could just as easily occur from gardening as working. He expressed the opinion that incidents of back pain in the appellant could have occurred through multiple causes. If pain did occur in September 2003 as described then that could be an indicator the appellant was vulnerable to developing back pain. The appellant’s degenerative condition could interfere with her future work potential. Mr Klug said in the absence of a history of back complaint or previous investigations the employer would not have had an indication of the situation concerning vulnerability of the appellant’s spine.

In re-examination Mr Klug said it was fair to say that this type of employment over a period of time could be responsible for some acceleration of a disorder of the low back. Mr Klug said that there appeared to be no doubt that as a result of the incident occurring late 2003 there was the onset of symptoms which persisted and it was more probable than not that her continual employment involving physical activities did lead to an aggravation of the appellant’s spinal condition and ultimately led to the need for her to cease employment.

A letter from Dr Poon, physician, to Dr Bertram dated 20 September 2007 was read into evidence. Dr Poon’s letter contained the following:

There has been a long standing issue of pain in her thumbs and more recently paraesthesia in her hands.
…
This year has been a complicated year as she has also been diagnosed with essential (sic) thrombocytosis. After commencing aspirin she developed gastrointestinal bleeding requiring blood transfusion.
…
Nerve conduction studies performed today demonstrate carpal tunnel syndrome.

Dr Strauss gave evidence that the appellant was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood secondary to her physical problems. Dr Strauss thought that taking into account all of the appellant’s circumstances, she would be considered to be totally and permanently incapacitated.

Mr Khan gave evidence that he had examined the appellant on two occasions being 10 May 2010 and 21 November 2011. Mr Khan took a history of the appellant’s duties with the respondent. He referred to the incident on 7 October 2003 when the appellant was bending down to put an electric plug in the socket for a lamp and as she did so felt a pop in her lower back and was thereafter consulting a chiropractor, Dr Bertram, and subsequently, Dr Jensen. Mr Khan recorded the history of further back injury in December 2006 assisting a disabled resident in the toilet supporting her physically thereby exacerbating pre-existing pain in the back. Mr Khan recorded that the appellant had been referred to an orthopaedic surgeon Mr Michael Johnson in 2008 who had recommended surgery for the possible alleviation of symptoms. He recorded her attendance upon Mr de la Harpe and the performance of a discography which was negative and led to a recommendation that surgery not be performed. Mr Khan described the restrictions on the appellant’s lifestyle and spinal function. He regarded the appellant as suffering from organic pain and back stiffness in the back as well as non-organic symptoms due to a longstanding period of pain and stiffness. In his opinion the appellant was totally disabled from her pre-injury employment. Mr Khan assessed the appellant as not being able to perform any work requiring excessive bending, twisting or turning of the spine, sitting or standing for long periods. He thought that the appellant remained unsuitable for retraining or alternate work programs on an indefinite basis. The injuries were assessed to be stabilised and continued to be caused by employment with the respondent.

In cross-examination Mr Khan said that the appellant was suffering from degenerative changes in her lumbar spine which would make her more susceptible to develop symptoms from bending down. He confirmed that he had obtained a history of no back pain prior to 7 October 2003 and agreed that a disc protrusion could develop bending to put in a plug or bending in the garden. Mr Khan was asked about other medical conditions including gastrointestinal bleeding suffered by the appellant and said that could be caused by a number of factors and could potentially have serious consequences, bilateral carpal tunnel syndrome that may be treated by a steroid cortisone injection or alternatively by surgery, joint pains and thrombocytosis which indicated that the platelets in the appellant’s blood had suddenly increased in number and would require referral to a haematologist.

In re-examination Mr Khan said that the appellant worked very hard and strenuously and had pre-existing degenerative change in the spine so she was susceptible to develop painful symptoms at the time of the injury in 2003 and then the second injury in 2006. He said that the strenuous work up until October 2003 would have caused some difficulties because of her joints and it was not conducive to her health to continue that type of work independently of the way her spine looked on the x-rays.

The Watts v Rake issue (grounds 6 and 7)

It is convenient to commence with the appellant’s complaints concerning the trial judge’s charge in respect of Watts v Rake.[8] There was considerable discussion between his Honour and counsel at trial concerning Watts v Rake and Purkess v Crittenden.[9] In Purkess v Crittenden, Barwick CJ and Kitto and Taylor JJ explained Watts v Rake in the following terms:

We do not regard that case as formulating the proposition that once a plaintiff has established a prima facie case that he has been incapacitated as a result of the injuries inflicted upon him by the defendant’s negligence the burden of establishing that his incapacity is wholly or partially the result of, or that total or partial incapacity would, in any event, have resulted from, some pre-existing condition in the plaintiff passes to the defendant in the sense that, when the whole of the evidence in the case has been given, the onus of proof on this issue rests upon him. The expression ‘burden’ or ‘onus’ of proof, ‘as applied to judicial proceedings … has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading – the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond reasonable doubt; and (2) the burden of proof in the sense of introducing evidence.’ (Phipson on Evidence, 10^th ed. (1963) par. 92). This is a proposition which has been frequently acknowledged … The position is, we think correctly stated by the learned author of the work to which we have referred when he says: ‘The burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates’ … and it was with the meaning of this expression in its secondary sense that the case mentioned was concerned. We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff’s prima facie case that Watts v Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff’s present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant’s case or evidence extracted by cross-examination in the plaintiff’s case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant’s negligence.[10]

[8](1960) 108 CLR 158.

[9](1965) 114 CLR 164.

[10]Ibid 167-8.

During the course of the discussion before his Honour, reference was made to the evidence concerning the plaintiff’s carpal tunnel syndrome. His Honour said:

I don’t think I could say there is evidence that the jury can act upon that [she would] not have worked past any particular date. That has not been established on the evidence.

Counsel for the appellant responded:

I wanted to make the point that in my submission your Honour can go further and not merely not tell the jury that there is no evidence, but point out to them that there’s no evidence as to what would have happened in the future and tell them what the law says in that regard.

His Honour responded:

I’ll just say that there’s no evidence that she would have been prevented working past a certain date. But like the general vicissitudes direction we’ll talk about illness, other injuries and the like. I will point out to them that there is some evidence that there are in fact other injuries here. What effect they’re going to have is of course speculative.

In his charge, his Honour gave a standard form direction about the defendant (respondent) having to take the plaintiff (appellant) as it found her. During the course of this direction, his Honour gave the usual example of a plaintiff with an egg shell skull.

Following this direction, his Honour told the jury that they would, when assessing damages, have to take into account the vicissitudes of life. His Honour then gave a detailed explanation of vicissitudes, saying that they had to be evaluated in relation to the particular person – and that not all contingencies were negative. During the course of this direction his Honour referred to the evidence of the appellant’s thrombocytosis, general joint pain, degenerative changes and carpal tunnel syndrome. Additionally, his Honour made reference to the fact that if the appellant failed to establish that some part of her injury was caused by the negligence of the respondent then that condition might need to be taken into account when assessing vicissitudes.

Following these directions, and during a break in his Honour’s charge, further issue was taken by the appellant’s counsel in relation to Watts v Rake.[11] Reference was made by counsel for the appellant again to the ‘burden that exists on the defendant to establish the likely effects of those other conditions’. Counsel went on:

Your Honour, all we would say is perhaps a comment to the effect that the jury needs to be satisfied that the defendant has proved [the appellant has specific medical conditions or issues]. Then that obviously is a matter of a discount for them. Given that yes, there was certain evidence endeavoured to be adduced from our medical witnesses, the defendant didn’t call any medical witnesses. To the extent that any evidence was adduced about these matters, Mr Khan in relation to the blood matter said he wasn’t an expert.
In relation to the carpal tunnel syndrome matters, as I have already commented, he said that there was hope that any small operation would rectify it, but it wasn’t guaranteed. So we merely say it’s a matter for the defendant to prove that there is evidence that they can then discount. That’s all.

[11](1960) 108 CLR 158.

Following these further submissions, his Honour gave further directions to the jury. These directions included:

Where a defendant alleges that part of a plaintiff’s disability or loss is caused by some unrelated condition or event, it’s for the defendant to prove the extent of the loss suffered by the plaintiff as a consequence of that unrelated condition or event and when she would have suffered that loss.
…
The law says that insofar as there needs to be some disentanglement of the conditions or injuries suffered by the plaintiff leading to her disability or inability to work, it’s for the defendant to prove on the evidence that the plaintiff would have suffered such loss or disability by reason of that unrelated condition, illness or circumstance, so that insofar as the defendant might say to you … ‘well look, she had pre-existing degenerative changes in her back – that increases as one ages’. You heard that evidence from a number of doctors. She may well not have been able to work past December 2006, or some time between now and then, in any event. What the law says is if that’s the defendant’s case it bears an evidentiary onus of establishing that that was the case to your satisfaction.
Likewise, if the defendant says, ‘well, look, this thrombocytosis or the carpal tunnel condition, let’s lump them all together – polyarthritis condition – she may not have been able to work past December 2006, or much longer, in any event, regardless of our negligence’, assuming you were to find such negligence on the part of the defendant, and what the law says is that where the defendant makes that allegation or puts that up as an answer to the plaintiff’s claim or part of it, then it bears the evidentiary onus of showing that that was likely to be so.
….
Now, I direct you that insofar as that issue [degenerative changes] is concerned, whether the pre-existing degenerative change would have been likely to have interfered with her capacity to work up until the present time, that it is the defendant who carries the onus of showing that.
…
Now [Mr Klug] was never taken by either [counsel] to the extent or the severity of the pre-existing back pain. So it seems that the evidence before you is that there is simply a risk that that might have occurred, but no more evidence. Likewise in relation to the other unrelated illnesses or conditions, the thrombocytosis and the carpal tunnel syndrome, there is no evidence that I can recall before you to the effect that those conditions would have interfered with her ability to work on until the present time.
…
When it comes to assessing any future loss of earning capacity that you may get to consider or you may not, but if you do the fact that these conditions have been established as having been in play, so to speak, you could certainly take them into account in terms of vicissitudes of life that might affect [the appellant].

In our view there is nothing in the appellant’s complaints about his Honour’s charge. If anything, his Honour’s charge was excessively favourable to the appellant and may have led them wrongly to conclude that the defendant in fact bore the burden of establishing a case as described by the plurality in Purkess v Crittenden.[12] His Honour’s initial treatment of the issue by reference to vicissitudes which the jury could take into account was for reasons we shall explain below, in our respectful view, correct. Each of the conditions which the respondent contended were capable of being taken into account as relevant vicissitudes were sufficiently established on the evidence for this purpose. It was then a matter for the jury to determine what if any account should be taken of these matters.
[12](1965) 114 CLR 164, 167.

The appellant’s claim was brought on the basis of an allegation that she suffered repetitive strain in the course of her employment. In turn the statement of claim alleged that the appellant suffered back injury in the course of her employment and particularised that claim in part as:

Aggravation and/or acceleration of degenerative changes particularly at L2-3, L3-4, L4-5 and L5-S1 levels.

The allegation of aggravation and acceleration potentially engaged the principles stated in Watts v Rake[13] as explained in Purkess v Crittenden. In the event however the evidence did not establish with a reasonable measure of precision what the pre-existing condition was at the time of the December 2006 injury and what was its probable future development and progression.
[13](1960) 108 CLR 158, as explained in Purkess v Crittenden (1965) 114 CLR 164.

In consequence counsel for the respondent put the appellant’s pre-existing back condition to the jury as one of a series of factors bearing on the risk of vicissitudes affecting the appellant’s future earning capacity. In turn the trial judge ultimately charged the jury as set out in para [61] above.

There was no error in this charge. In particular, it gave a full effect to the principles explained in Purkess v Crittenden. Indeed, as we have said, it may strictly have gone further than it should have in terms of the underlying onus upon the appellant. Further, the trial judge was correct to direct the jury that the evidence of a basket of matters affecting the appellant’s health before the December 2006 incident was evidence that could be had regard to in assessing potential vicissitudes affecting the risk relevant to the claim for future economic loss. The underlying concept was articulated by Moffitt P and Samuels JA in McIntosh v Williams:[14]

Where an evaluation of a loss has to be made and the extent of the loss depends upon an uncertain event, which has not occurred by the time the evaluation is made, such evaluation must be made by reference to the chance of the event occurring, and not by reference to whether or not the occurrence was or is probable. This is so whether the time when the event would ordinarily have occurred is before or after the time when the evaluation is made, which, for present purposes is the date of trial. If, by the lapse of time to the date of trial, some uncertain factors have been rendered certain by happening or by not happening, then only those factors which remain uncertain need be evaluated as chances. The earnings of a deceased person, had he not died, are uncertain, whether the earnings to the date of trial or afterwards are under consideration. There may be uncertainty on the question of whether the widow will survive to receive benefits, or whether she will remarry. By the date of trial, it may be uncertain whether illness or other causes would have reduced the earnings of the deceased person if he had survived; but it may be certain that, until then, the business of his employer had continued and had flourished, or that wages had gone up. By the date of trial, it will be certain whether or not the widow has survived, and whether or not she has remarried. As to those matters which remain uncertain, the evaluation of the loss must be made on the basis of chance, whether loss to trial or loss thereafter is under consideration. The degree of chance will depend on the circumstances of each case.[15]

[14](1979) 2 NSWLR 543, 550, cited with approval by Deane, Gaudron and McHugh JJ in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 643.

[15]McIntosh v Williams (1979) 2 NSWLR 543, 550 (citations omitted).

The more recent leading authorities are analysed by J Forrest J in Acir v Frosster Pty Ltd.[16]
[16][2009] VSC 454, [262]-[267].

In Malec v JC Hutton Pty Ltd[17] Deane, Gaudron and McHugh JJ said:[18]

When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.

[17](1990) 169 CLR 638.

[18]Ibid 643 (citations omitted).

Brennan and Dawson JJ said:[19]

The judgment of the majority in the Full Court seems to us to overlook the difference between the fact that the [plaintiff] had not been working for some time before the trial and an evaluation of the [plaintiff’s] earning capacity which was destroyed in consequence of the [defendant’s] negligence. The fact that the [plaintiff] did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the [plaintiff] had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the [plaintiff] has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past.
…
In assessing the [plaintiff’s] earning capacity in the present case, what had to be evaluated was the prospect that the deteriorating back condition would have precluded him from engaging in gainful employment had he not contracted brucellosis. An evaluation of that prospect had to be made. To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation.

[19]Ibid 639-40.

In Poseidon Ltd & Sellars v Adelaide Petroleum NL,[20] the High Court said:

In Malec v JC Hutton, this court drew a distinction between, on the one hand, proof of historical facts – what has happened – and, on the other hand, proof of future possibilities and past hypothetical situations. The civil standard of proof applies to the first category but not to the second, particularly when it is necessary to determine future possibilities and past hypothetical situations for the purpose of assessing damages.

[20](1994) 179 CLR 332, 350 (Mason CJ, Dawson, Toohey and Gaudron JJ).

In Seltsam Pty Ltd v Ghaleb,[21] Ipp JA (with whom Mason P agreed) held that Malec required the application of the following principles:

(a)In the assessment of damages the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.
(b)The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.
(c)The court must form an estimate of the likelihood of the possibility of alleged future events occurring.
(d)These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on the balance of probabilities.

[21][2005] NSWCA 208, [103].

Ipp JA continued:

What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the ‘disentangling’ evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.
Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff’s condition prior to the injuries sustained by the defendant’s negligence (including the plaintiff’s economic and other prospects in that condition) and the plaintiff’s condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.[22]

[22]Ibid [104]-[108] (citations in original).

Ipp JA’s analysis has been followed by the New South Wales Court of Appeal in Varga v Galea[23] and Ridolfi v Hammond.[24] We also respectfully agree with it. It fortifies the conclusion that it was both proper and indeed necessary for the trial judge to direct the jury by reference to the concept of vicissitudes as he did.
[23][2011] NSWCA 76.
[24][2012] NSWCA 3.

For completeness, as the Victorian Civil Jury Charge Book notes,[25] it has long been the practice in Victoria to treat a claim for earnings lost up to the date of trial as special damages and to distinguish it from a claim for future loss of earning capacity. Such a distinction is implicitly recognised in the definitions of ‘pecuniary loss damages’ in s 134AB(37) of the Accident Compensation Act 1985[26] and s 93(17) of the Transport Accident Act 1986. Whilst the principles set out above mean that conceptually past loss is also strictly a loss of earning capacity, this does not mean that the calculations ordinarily made in Victoria do not have utility. Indeed a series of decisions of the New South Wales Court of Appeal have dealt with issues of past loss of earning capacity by way of calculations made along the lines usually made in Victoria.[27]
[25]Victorian Civil Jury Charge Book (Judicial College of Victoria, 2013) 3.2, ‘Pecuniary loss damages’.
[26]Section 134AB(37) of the Accident Compensation Act 1985 provides that:
pecuniary loss damages means damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage; …
[27]See eg Rabay v Bristow [2005] NSWCA 199, [22]-[23]; Magnou v Australian Wool Testing Authority [2007] NSWCA 357, [25]-[27]; Kallouf v Middis [2008] NSWCA 61, [35]-[36].

In Husher v Husher[28] Gleeson CJ, Gummow, Kirby and Hayne JJ said:[29]

Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff's economic loss ‘by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss’. But damages for both past loss and future loss are allowed to an injured plaintiff ‘because the diminution of his earning capacity is or may be productive of financial loss’. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained.

[28](1999) 197 CLR 138 (citations omitted).

[29]Ibid 143 [7].

To the extent that the appellant’s submissions involve the proposition that evidentiary or shifting onuses should be explained to a jury, those submissions must also be rejected. The concepts of evidentiary and shifting onuses are difficult enough for lawyers. To the extent that in any particular case it might be thought necessary to explain these concepts to a jury, one might reasonably conclude that such a case contains within it levels of complexity that would justify changing the mode of trial pursuant to r 47.02.[30]
[30]County Court Civil Procedure Rules 2008.

That said, in truth this case is not really a Watts v Rake or Purkess v Crittenden case. It was correctly regarded by the trial judge to be a case where evidence had been led which was capable of being accepted by the jury as showing the existence of medical conditions which could be taken into account by the jury when assessing the likely condition and fitness for work of the appellant but for any injury the jury found to have been sustained as a result of the respondent’s negligence. That is, it was correctly regarded by his Honour as a vicissitude case and the jury was then given relevant and unimpeachable directions about vicissitudes generally and the vicissitudes in this particular case.[31]
[31]See further, Winston v Roach [2003] NSWCA 310[68]-[72] (Mason P with whom Santow JA agreed), and the authorities referred to therein.

For these reasons, grounds 6 and 7 must be rejected.

The jury’s assessment of pain and suffering damages (grounds 1 and 2)

In grounds 1 and 2, the appellant contends that the jury’s award of $75,000 was manifestly inadequate, and/or contrary to the evidence or the weight of the evidence, and/or one which was not open to a jury properly instructed as to the law.

A difficulty with these grounds is the opaqueness of the jury’s verdict brought about by the terms of the first question posed to it. Rather than posing separate questions as to whether the appellant suffered injury separately as a result of the performance of her work during the period between 20 October 1999 and 13 December 2006, or as a result of the incident that occurred on 7 October 2003, or as a result of the incident that occurred on 13 December 2006, the jury was asked a rolled-up question which invited consideration of all three bases upon which the appellant put her claim. It is now not possible to know whether the jury accepted all three bases, or any two of them, or only one (and which one) of them.

In determining whether the amount assessed for pain and suffering damages was not open, or manifestly excessive, or contrary to the evidence, this Court is required to have regard to the evidence most favourable to the respondent. When one does so, one sees that, in all likelihood, in answering question one, the jury found for the appellant in respect of the 13 December 2006 incident – but found against her in respect of the period claim and the 7 October 2003 incident.

Upon a consideration of the whole of the evidence, the appellant’s claim against the respondent in respect of performing her work between October 1999 and December 2006 was almost certainly not accepted by the jury on two grounds. First, the medical evidence in support of such a claim was scant. Secondly, having regard to the respondent’s evidence (which it is not necessary to set out here), it is unlikely that the jury would have accepted such submissions as were made that requiring or permitting the appellant to perform this work was in breach of the duty of care owed to her by the respondent.

As to the incident that occurred on 7 October 2003, all we need say is that it would be surprising if a jury was to conclude that the respondent was negligent in permitting or requiring the appellant to switch on a power point that was not, in any sense, unusually positioned.

On the other hand, the evidence to which we have already referred discloses that the claim made in respect of the 13 December 2006 incident was a relatively strong one - subject to considerations of contributory negligence to which we will come below.[32]
[32]See generally, Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; McLean v Tedman (1984) 155 CLR 306; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Czatyrko v Edith Cowan University (2005) 79 ALJR 839; Davies v Adelaide Chemical and Fertiliser Company Ltd (1946) 74 CLR 541; The Commissioner of Railways v Ruprecht (1979) 142 CLR 563; and Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202.

It was in our view reasonably open to the jury to assess damages in this case on the basis that much of the plaintiff’s back related injury and condition (which might have been linked to the 7 October 2003 incident, or other matters not related to the appellant’s work) had not been shown to be causally linked to the incident that occurred on 13 December 2006. So much is demonstrated by the recitation of the plaintiff’s evidence and the medical evidence above. Further, in the course of final submissions for the respondent below, the respondent submitted that it was open to the jury to award $75,000 for damages for pain and suffering even if the entirety of the appellant’s case on liability was accepted. No complaint was made by counsel for the appellant below that such a figure was not open – and rightly so. In the circumstances, the contention now made that the jury’s assessment of $75,000 was manifestly inadequate or not reasonably open or contrary to the evidence or the weight of the evidence cannot be accepted.

For these reasons, grounds 1 and 2 must be rejected.

The jury’s assessment of pecuniary loss damages (grounds 3, 4 and 5)

In grounds 3, 4 and 5, the appellant makes complaint about the jury’s award of $186,500 for both past and future loss of earnings and earning capacity. In respect of the complaints made in these grounds it is to be remembered that the parties agreed that, as a matter of arithmetic, had the appellant remained in continuous employment from December 2006 to the time of trial, her net earnings inclusive of superannuation for that period would have been approximately $186,500. In pursuing grounds 3, 4 and 5, the appellant contends: first, it was not open to the jury properly instructed as to the law to award the appellant no damages for future loss of earnings or earning capacity; secondly, the failure by the jury to award the appellant any damages for future loss of earnings or earning capacity was manifestly inadequate and/or contrary to the evidence or the weight of the evidence; and thirdly, if the jury did award the appellant damages for future loss of earnings or earning capacity, the sum of $186,500 awarded for both past and future losses was manifestly inadequate and/or contrary to the evidence or the weight of the evidence.

There is no substance in the first two of the appellant’s complaints. In our view, there is no basis for contending that the jury improperly failed to award damages for future economic loss. The mere fact that the jury’s verdict for pecuniary loss damages was the amount the parties had agreed as the arithmetic total of the wages the appellant could have earned had she remained in continuous employment from December 2006 to the time of the trial does not mean that the jury must have awarded this sum in full for the past and nothing for the future.

To the extent that the appellant’s submissions involve the proposition that the jury had somehow improperly compromised the appellant’s claim in respect of pecuniary loss damages, we reject this submission. As has been said before, a court should ordinarily be loath to find that members of a jury have willingly forsworn their oaths and arrived at their verdict on the basis of compromise, rather than the evidence led at trial.[33]
[33]See Goldsmith v The Queen [2010] VSCA 99 [51] and Amato v The Queen [2013] VSCA 346 [5].

Again, as with the issue of pain and suffering damages, in determining the appropriateness or otherwise of the jury’s allowance of $186,500 for pecuniary loss damages, this Court is required to have regard to the evidence most favourable to the respondent. Additionally, for the reasons given above, it is to be remembered that the assessment falls to be considered by reference to what injury was sustained as a result of the 13 December 2006 incident, rather than the 7 October 2003 incident or the period claim.

When one looks at the medical evidence called at trial, and in particular the evidence of Dr Jensen and Mr Khan to which we have already referred, one can easily see a basis upon which the jury could have assessed the appellant’s loss of working capacity in the past and future on only a partial basis for the injury she sustained in the 13 December 2006 incident. Specifically, a return to work on restricted hours and restricted duties was recommended by Dr Jensen in mid-2007 – and, as has been said, Dr Jensen’s efforts were always to get the appellant back to work. While it would have been open to the jury to take a more generous approach to the assessment of pecuniary loss damages, it cannot be said on the evidence that the amount assessed was not open or was outside the range. Indeed, the amount assessed was considerably more than the respondent’s counsel put to the jury in final address ($60,000 for the past and $40,000 for the future) about which no complaint was made by the appellant’s counsel at trial.

Further, in his charge to the jury, the trial judge said:

You might find, for example, that she most likely would not have worked past 57 years and calculate no amount for future loss of earning capacity. You may not agree that approach is reasonable. How you go about the exercise is entirely up to you. The parties are some distance apart. You will recall that the plaintiff through her counsel suggested it is fair and reasonable to award the whole of the period for past loss of $186,500. If you did that you would be making no allowance for time off work for blood transfusions, for any other illnesses or operative procedures of that nature. The matter is for you.
Counsel for the plaintiff suggests a future loss in the sum of about $240,000 which, as I understand it, is effectively a use of the multiplier to the age of 65. But it does not reflect any discount for the vicissitudes of life as they would affect her. The defendant says in respect of loss that you might give her a year or two of income to reflect the reality of the situation and her position.

None of this was objected to as not being open (or at all) by the appellant. With respect, it represented views that were reasonably open to the jury on the evidence.

Further, in arriving at a figure for pecuniary loss damages there would be nothing improper in the jury balancing the various competing considerations and arriving at a figure for both past and future which essentially was the amount of the agreed arithmetic calculation. That is, one could well see a jury accepting that the plaintiff’s future work capacity but for her compensable injury was quite limited but offset by an equivalent sum in respect of periods in the past when the appellant might have been expected to have worked notwithstanding her injuries (specifically having regard to the evidence of Dr Jensen).

For these reasons, the jury’s assessment of $186,500 for pecuniary loss damages is unimpeachable. Grounds 3, 4 and 5 must be rejected.

Contributory negligence evidence (grounds 8 and 9)

In grounds 8 and 9, the appellant makes complaint about the jury’s finding of contributory negligence. First, it is said that it was not open for the jury to find contributory negligence on the part of the appellant. Secondly, it is said that an apportionment of 60% against the appellant was not open. Thirdly, it is said that in any event there could be no contributory negligence beyond the incident of 13 December 2006.

For the reasons given above, these grounds (like grounds 1-5) properly fall to be approached on the basis that the jury only found for the appellant in respect of the 13 December 2006 incident. That being so, one immediately sees that the appellant’s third complaint in respect of contributory negligence must fall away. There is no basis for concluding that the jury made a finding of contributory negligence in respect of matters about which the appellant was almost certainly unsuccessful.

It was the respondent’s case at trial that at the time of the 13 December 2006 incident, the appellant was on restricted duties. Indeed, there was very little issue between the parties on that point. The appellant was on restricted duties because of her back condition. One of the purposes of restricted duties was to limit the prospect of the appellant suffering further back pain or injury. The appellant was cross-examined about these matters. She was asked and answered the following question:

You know, and it had been patently clear to you, that in effect one of the conditions of your employment was that you were to be restricted and you were not able to do the very sort of things that occurred on this occasion [13 December 2006]. That was so, wasn’t it? - - - Yes, that was so. But it wasn’t reality.[34]

[34]T 160.10-T 160.15.

While the appellant qualified her answer with the statement ‘But it wasn’t reality’, it was open to the jury to conclude that at the time of the 13 December 2006 incident, the appellant was performing an activity which she had been instructed not to do and which she knew not to do because of her pre-existing back condition.[35] While reasonable minds might differ as to whether those circumstances should be held to amount to contributory negligence and whether the contributory negligence should be assessed as high as 60%, it cannot be said that it was not open to the jury to take the view they took. Further, one might infer that the appellant’s trial counsel, in failing to make any application to take contributory negligence away from the jury, accepted that it was open to the jury to make a finding of contributory negligence in relation to the 13 December 2006 incident.[36]
[35]See further the evidence of Mr Vo that the appellant was not required to work with the 13 December 2006 resident because of a concern the appellant not be put in “higher risk situations”: T624-625.
[36]We should also say for the sake of completeness that the jury were charged on the basis that contributory negligence only applied in respect of the 13 December 2006 incident.

Additionally, in his final address, senior counsel for the respondent when dealing with contributory negligence said that it was ‘clearly … very large and much, much greater than any [negligence] that could be attributed to [the respondent]’.[37] No complaint was made that it was not open to the jury in assessing contributory negligence to apportion the greater share of responsibility to the appellant rather than the respondent. That is not a criticism of the appellant’s trial counsel. With respect, the view that must have been taken (correctly in our opinion) was that a finding of contributory negligence of more than 50% was open.
[37]T 667.

As has been repeatedly said, a finding on a question of apportionment is a finding upon a question, not of principle or of positive findings of fact or law, but of proportion, of balance of relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury.[38] There is no basis for interfering with the jury’s apportionment in the present case.
[38]Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, 493-4.

For these reasons, grounds 8 and 9 must be rejected.

Conclusion

The appeal must be dismissed.

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Smith v Gellibrand Support Services Inc [2013] VSCA 368

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[2013] VSCA 368

13 December 2013