Whittington v Churches of Christ in Queensland
[1999] QCA 383
•14/09/1999
IN THE COURT OF APPEAL 99.383 SUPREME COURT OF QUEENSLAND Appeal No 8662 of 1998
Brisbane
[Whittington v Churches of Christ in Qld]
BETWEEN:
LEONIE SUSAN WHITTINGTON
(Plaintiff) Appellant
AND:
CHURCHES OF CHRIST IN QUEENSLAND
(Defendant) Respondent McMurdo P
Davies JA
Chesterman J
Judgment delivered 14 September 1999.
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
APPEAL ALLOWED WITH COSTS. JUDGMENT BELOW SET ASIDE. INSTEAD JUDGMENT FOR THE APPELLANT AGAINST THE RESPONDENT IN THE SUM OF $2,178.99 WITH COSTS OF THE ACTION.
CATCHWORDS:
EMPLOYMENT LAW - THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE - LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW - SAFE SYSTEM OF WORK - lifting-related neck injury sustained by assistant in nursing at work - finding that employer breached duty to provide safe system of work
TORTS - NEGLIGENCE - DAMAGE - CAUSATION - lifting- related neck injury sustained by assistant in nursing at work - no specific incident reported - finding that employer breached duty of care - finding that injury not causally related to breach
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE’S FINDINGS OF FACT - WHERE INFERENCES OF FACT INVOLVED - whether judge erred in finding causation was not established - whether judge erred in inferences drawn as to causation from undisputed evidence - extent of injury and degenerative condition relevant to quantum, not liability
Chappel v Hart (1998) 72 ALJR 1344, discussed
Fitzgerald v Penn (1954) 91 CLR 268, March v Stramare (E & MS)
Pty Ltd (1990-1991) 171 CLR 506, SRA (NSW) v Earthline
Construction (1999) 73 ALJR 306, Thomas Borthwick & Sons v
Stapleton (Appeal No 255 of 1995, 14 June 1996), Warren v
Coombes (1979) 142 CLR 531, appliedCounsel: Mr R R Douglas QC, with him Mr S J Given for the appellant
Mr P de Plater for the respondentSolicitors: Gall Standfield & Smith for the appellant
Primrose Couper Cronin Rudkin for the respondentHearing Date: 20 May 1999
McMURDO P: The appellant, a 44 year old assistant in nursing, experienced severe neck
pain in August 1994 and ceased employment with the respondent at the Lady Small Haven Nursing
Home at Benowa. She brought an action in negligence against the respondent for damages for
personal injuries.
The trial was heard over two days in the District Court at Southport. The learned trial judge
found that the respondent had breached its duty of care but declined to find on the balance of
probabilities that the injury suffered by the appellant was causally related to the breach and
dismissed the appellant's claim.
The appellant appeals against that finding and also as to the quantum of the assessment of
damages.
Causation
As his Honour noted, one of the difficulties of the case was that the appellant did not ascribe
the onset of severe neck pain on 22 August 1994 to any specific incident or activity.
The appellant had been working at the respondent's nursing home from mid-1991. Her
duties included considerable lifting of patients in the transfer of patients in and out of and between
beds, commodes, shower chairs, wheelchairs and toilets and in the showering and toileting of
residents.
His Honour noted the respondent's very strong policy that injuries, no matter how trivial,
were to be reported. Whilst his Honour made no specific findings on this point, he expressed
doubts, at least on the issue of liability, as to whether the appellant had suffered any minor
symptomatology prior to leaving her employment as:
"... if the [appellant] had some minor strains in the period leading up [to] 22 August
1994, it seems extraordinary to me that:(i) she would not report them as there was a strong policy to that effect and it seems she had very sympathetic supervisors;
(ii) that she would engage in further lifting of patients by herself in contravention
of the instructions; and(iii) that if she had injured herself in this way on 22 August 1994, that is by lifting on her own, she would not at that time or immediately after that time have been able to recall it."
His Honour noted that the lifting of patients in the cramped space in toilet cubicles when two
nurse assistance was required was first mentioned in minutes of a nurses' meeting on 24 August
1994, after the appellant ceased work, and was plainly an unsafe system; despite the issue having been raised within days of her injury there is no suggestion that the appellant suffered her injury in
this way.
Since August 1994, there has been a number of improvements so that assistant nurses are
responsible for fewer patient showers; hoists and aids have been purchased; and a wall has been
removed between two toileting areas. As a result, there have been dramatically fewer lifting injuries
to nursing staff. Prior to 1994, emphasis was placed on safe lifting techniques whereas since 1994
the respondent has moved towards a no-lift system, a programme which his Honour noted as
innovative and with substantial benefits, but there was no evidence that equipment used in the
programme was reasonably available prior to August 1994.
His Honour referred with approval to health and safety expert Mr O'Sullivan's criticism of
two toilet cubicles with insufficient room for two nurses to manoeuvre the patient onto the toilet.
His Honour concluded that despite its considerable efforts in pursuing the safety of its
employees, the respondent breached its duty to the appellant by:
"(i) Failing to implement its two nurse lift policy, in that staff numbers would seem to have been insufficient to sustain such a policy being pursued at all times. (ii) Failing to enforce the policy when infractions of the policy by the appellant came to the attention of supervisory staff. I do accept, however, that such staff regularly admonished the [appellant]. (iii) Failing to ensure that two nurse lift patients were not toileted in the narrow
toilet cubicles depicted in exhibit 34."
His Honour then found that causation was not established. Regrettably, his Honour gave
no reasons as to why he found the appellant's injuries were not causally related to the respondent's
breach of duty.
There was a substantial body of evidence which supported a causal connection. It was not
disputed that the appellant's work involved a considerable degree of lifting and the respondent
breached its duty to the appellant as set out above.
Mr O'Sullivan, a trained physiotherapist with a Masters of Occupational Health and Safety
whose evidence was accepted, at least in part by his Honour, gave evidence that in respect of the
activities of continual lifting by a person such as an assistant nurse, back pain is more common than
neck pain, but after looking at the range of tasks the appellant carried out and the types of methods
used there was a potential for protraction of the shoulders, lifting with the arms forward causing
stress on the neck and shoulders. In his tendered report, he noted:
"The toileting activity carried out by [the appellant] would appear to be a task in which there existed the potential for significant physical effort and musculo-skeletal stress, particularly efforts at the shoulder which are likely to result in comparative stresses on the neck."
Consultant neurosurgeon, Dr Tan, examined the appellant on 1 November 1994. He
concluded that from her history and examining the x-ray taken on 20 August 1994[1] she appeared
to have aggravated her pre-existing condition of cervical spondylosis and the condition was work-
related.
[1] The correct date may be 30 August 1994: see Dr Toft's report and Reasons for Judgment, 448.
He examined her on nine further occasions and on 25 February 1997 concluded that:
"... the condition she currently suffers, is consistent with the injury she sustained in August 1994. It is in [sic] my opinion that the condition that she currently suffers is due to heavy repetitive lifting whilst engaged as an assistant nurse with her former employer."
He examined her again on 11 August 1998 and in his final report he reaffirmed his opinion that her
current problems were work-related.
Orthopaedic surgeon, Dr Langley, examined the appellant on 8 December 1995 and formed
the opinion that the appellant had "on going problems in her neck as the result of recurrent lifting in
a nursing home. ... She has a permanent impairment to her neck due to her injury of 5 per cent."
After a further examination on 7 August 1998, he confirmed his opinion that:
"... she has an impairment of five (5) per cent as a result of the ongoing problems
she has which obviously arose from her work. ...... Dr Toft states that considering the present radiological findings, this lady's neck condition could be aggravated by certain types of work and physical activities and I believe that this is what has occurred in this lady's case. The degenerative changes in her neck have been aggravated and accelerated to some extent as a result of the ongoing work she did. She has been left with an impairment to her neck which she did not have previous to taking up this form of work."
Another orthopaedic surgeon, Dr Lloyd Toft, examined the appellant on 23 January 1997
and formed the opinion that:
"... She developed symptoms in her neck at work over a period of time and the X-rays of her neck taken soon after the onset of the symptoms show quite definite degenerative changes. It would be my view that the nature of her work probably caused some temporary aggravation of the pre-existing degenerative changes in her neck.
I would believe that the effects caused by her work would have resolved within a few months and I do not believe that her work would have lead to any permanent aggravation of the neck condition."
Significantly, his Honour accepted Dr Toft's evidence as to quantum. Dr Toft noted a connection
between her work and a temporary aggravation of her neck injury by a few months but saw no
connection between her work and any permanent injured condition.
Dr Alison Reid, neurologist, examined the appellant on 15 January 1997 and noted:
"This lady does not report any specific work-related injury. According to her, her neck muscle soreness and stiffness developed over a period of time. I would have expected such soft tissue symptoms to settle with simple measures such as heat, liniment, swimming and massage over a weekend or within a few days. ...
This lady has nothing of significance to find either clinically or radiologically and, in my opinion, there is no relationship whatsoever to her current complaints of neck ache and muscle contraction tension headaches and her previous employment as a nurse aid.
... I can find no reasonable relationship at all between her current symptomatology
and previous employment.IN CONCLUSION: It is my opinion that this lady does not have evidence of any permanent work-related impairment ..."
Dr Reid's conclusions are not that there was no injury which was work-related, but rather that the
current symptomatology was not work-related.
Where negligence is the issue, causation is essentially a question of fact: see March v
Stramare (E&MH) Pty Ltd.[2] As such, it is very much within the province of the trial judge: see
Thomas Borthwick & Sons v Stapleton.[3]
[2] (1990-1991) 171 CLR 506.
[3] Appeal No 255 of 1995, 14 June 1996.
In March, the High Court rejected the "but for" test as the exclusive test of factual causation,
instead preferring the commonsense view of causation referred to in Fitzgerald v Penn.[4]
[4] (1954) 91 CLR 268 at 276.
The sometimes complex issue of causation was considered most recently by the High Court
in Chappel v Hart[5] in which all judges delivered separate reasons. Gaudron, Gummow and Kirby
JJ constituted the majority. Gaudron J noted:
"Questions of causation are not answered in a legal vacuum. Rather they are answered in the legal framework in which they arise. For present purposes, that framework is the law of negligence. And in that framework, it is important to bear in mind that that body of law operates, if it operates at all, to assign a duty to take reasonable steps to prevent a foreseeable risk of harm of the kind in issue."[6]
[5] (1998) 72 ALJR 1344.
[6] Supra at 1346.
Gummow J emphasised that causation required the determination of a legal question, namely
did the defendant cause the result complained of, and cited with approval Environment Agency
(formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd;[7] "common sense"
answers to questions of causation will differ according to the purpose for which the question is
asked and the rule by which responsibility is being attributed.[8]
"Once the criterion for assessment of the adequacy of causation has been determined as a matter of law, the question whether the plaintiff has suffered some damage and therefore has a complete cause of action in tort is normally established by evidence which satisfies the civil standard of proof. If causation is not established in this way, then the plaintiff will fail and recover nothing."[9]
[7] [1998] 2 WLR 350.
[8] Chappel v Hart, 1357.
[9] At 1358.
Kirby J reviewed the law as to causation and concluded that once both a breach of duty
and damage have been proven, an evidentiary onus then lies upon the defendant to displace the
inference of causation which arises.[10]
[10] At 1370.
McHugh J (diss) noted:[11]
"Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring."
[11] At 1350.
Hayne J (diss) noted:
"The search for causal connection between damage and negligent act or omission requires consideration of the events that have happened and what would have happened if there had been no negligent act or omission. It is only by comparing these two sets of facts (one actual and one hypothetical) that the influence or effect of the negligent act or omission can be judged. ...
If, however, the damage of which the plaintiff complains would not have happened
without the intervention of the negligent behaviour, it will often be possible to
conclude that the negligent behaviour was a cause of that damage. ...
The 'but for' test is, however, neither a comprehensive nor exclusive test of
causation."[12][12] At 1372-3.
He, too, approved Environment Agency, adding:
"But consideration of the purposes of asking about causation in a case like the present should not be permitted to obscure the fact that the search is for a relationship between the negligent act or omission of one party and the damage which the other party alleges has been sustained.
The law of negligence may be seen as directed to several purposes but purposes of compensating the injured and promoting reasonable conduct are prominent among them."[13]
[13] At 1374.
The finding of causation in this case depends, in as much as it is a question of fact, on the
drawing of inferences from undisputed evidence: there is no direct evidence that there is no causal
relationship between the system of work and the injury and a body of evidence, not specifically
rejected by the trial judge and accepted by him at least in part, that the injury was work-related. As to the finding of causation, this Court is in an equal position to the trial judge; if after giving
weight and respect to the conclusion of the trial judge, a different conclusion is reached, this Court
will not shrink from giving effect to its conclusion.[14]
[14] Warren v Coombes (1979) 142 CLR 531, 551; SRA (NSW) v Earthline Constructions (1999) 73 ALJR 306, 325-6.
A review of the evidence does not support the conclusion reached by his Honour that there
is no causal connection between the respondent's breach of duty and the injury suffered by the
appellant: Dr Reid viewed the current symptomatology as not causally connected but she did not
exclude some minor work-related injury to the neck. Evidence from Drs Toft, Langley and Tan,
and from Mr O'Sullivan support a finding that the appellant's injury to her neck was causally related
to her work. This evidence of a work-related injury in the context of policy considerations
encouraging employers to take reasonable measures for the safety of their employees, the imposition
in the law of negligence of such a duty on employers and the finding by the trial judge that the
respondent had breached its duty in three respects involving lifting which was part of the appellant's
regular duties in the period before her neck became symptomatic, combine to strongly support a
finding that there is fairly and probably a causal link between the breach of duty and the injury
suffered by the appellant. The extent of that injury is relevant only to quantum.
Quantum
His Honour assessed general damages at $7,500 with interest of $360; past economic loss
at $7,150; past gratuitous care at $1,000 with interest of $80; special damages paid by WorkCover
at $2,531.76; the Fox v Wood component at $2,215.80; the refund to Medicare at $9,058.95 and
other special damages at $806.35 with interest of $161.25 - a total of $22,764.11, less the refund
to the Workers Compensation Board of $20,585.12, leaving a net figure of $2,178.99.
For the purposes of the assessment, his Honour found the following facts. He accepted
some minor symptoms prior to 22 August 1994 when there was an onset of severe neck pain and
headaches, causing her to stop work. She was treated by her GP. X-rays on 30 August 1994
revealed mild spondylitic changes and she was referred to physiotherapy for soft tissue injury
treatment. His Honour reviewed the evidence of Drs Tan and Langley, but preferred the evidence
of Dr Toft: although the appellant's symptoms have subsided, because of her pre-existing condition
of spondylosis, she is more prone to a recurrence of symptoms with stresses and strains. Dr Toft's
opinion was supported by that of Dr Reid. It was unlikely the appellant working as an assistant
nurse would have remained asymptomatic for long, especially as there were radiological changes
to her cervical spine. By 1 March 1995 her symptoms were attributable to her degenerative
condition, rather than work-related.
These findings of fact preferring the expert evidence of Drs Toft and Reid to that of Drs Tan
and Langley were open on the evidence . It has not been demonstrated that there was too fragile
a base to support his Honour's findings or that the rejected evidence was given insufficient
consideration such that there was not a true determination of the issues in the case.[15] Nor has any proper basis been demonstrated that would justify interference with his Honour's assessment of
quantum which was supported by the evidence he accepted.
[15] SRA (NSW) v Earthline Constructions at 321.
I would allow the appeal with costs, set aside the judgment and instead give judgment for
the appellant in the sum of $2,178.99 with costs of the action.
DAVIES JA: I agree with the President that, generally for the reasons which she gives,
a finding of negligence should have been made against the respondent.
As the learned trial judge acknowledged, the respondent was relevantly negligent in at least
three respects:
1. failing to implement its two nurse lift policy, in that staff numbers would seem to
have been insufficient to sustain such a policy being pursued at all times;
2. failing to enforce the policy when infractions of the policy by the plaintiff came to
the attention of supervisory staff; and
3. failing to ensure that two nurse lift patients were not toiletted in the narrow toilet
cubicles depicted in exhibit 34.
His Honour concluded, however, that that negligence was not causative of the appellant's
injury. Although his Honour did not elaborate on that conclusion it seems likely that it was because
his Honour was looking for, and did not find, an injury occurring, for the first time, on 22 August
1994. On the contrary, what the evidence proved, in my view, was a recurring injury culminating
in a need to cease work on 22 August. The evidence of the appellant also proved that this recurring
injury was associated with the appellant's lifting patients on her own and with her activities in
assisting patients in the narrow cubicles referred to. That those temporal associations were also
causative was, in my view, established by the medical evidence, which his Honour accepted, that the appellant had a neck condition which was aggravated by repetitive lifting activities. On the
balance of probabilities the appellant's injury was caused by the negligence of the respondent
referred to above.
Like the President I would not disturb the learned trial judge's assessment of quantum. I
would therefore allow the appeal, set aside the judgment below and give judgment for the appellant
for $2,178.99 with costs. I would also order that the respondent pay the appellant's costs of this
appeal.
CHESTERMAN J: I have had the advantage of reading the reasons for judgment
prepared by the President and by Davies JA.
I agree with the analysis of the evidence found in the reasons of Davies JA and with his
Honour’s conclusion, and that of the President, that the proper inference to draw from the evidence
is that repetitive lifting at work, over time, caused the appellant’s injury.
Although causation in cases of this kind is primarily a question of fact to be found by a trial
judge I agree with the President that where, ultimately, that question is one of inference to be drawn
from established facts, an appellate court may draw an inference different to the trial judge’s.
I agree with the President that there is no warrant for disturbing the assessment of damages
made by the trial judge. It follows that the appeal should be allowed, the judgment of the District
Court set aside and instead judgment be entered for the appellant against the respondent in the sum
of $2,178.99. The respondent should pay the appellant’s taxed costs of the trial and the appeal.
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