Re Mecho Constructions Pty Limited v William Roy Ryan [1987] FCA 47 (19 February 1987)

FEDERAL COURT OF AUSTRALIA

Re: MECHO CONSTRUCTIONS PTY. LIMITED
And: WILLIAM ROY RYAN
No. ACT G15 of 1986
Appeal - Damages

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.
Gallop J.
Neaves J.

CATCHWORDS

Appeal - quantum of damages - alleged factual errors by trial judge - role of appellate court.

Damages - original injury aggravated by subsequent incidents and medical treatment - foreseeability.

HEARING

CANBERRA
19:2:1987

ORDER

The appeal be dismissed with costs.

Note: Settlement and Entry of Orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is an appeal against the quantum of damages awarded by the Chief Justice of the Supreme Court of the Australian Capital Territory in an action for damages for personal injuries brought by the respondent against the appellant. The award of damages was $212,450 composed of the following heads of damage as found by the trial judge:

Past loss of earning capacity $ 25,450

Future loss of earning capacity 152,000

Out of pocket expenses Nil

Pain and suffering etc. 35,000
Total $212,450

2. The respondent's cause of action arose out of an accident in the course of his employment by the appellant on 9 May 1977. On that date the respondent was employed as a labourer with occasional duties as a plant operator. The trial judge's finding was that the respondent's original injury was in the nature of a rotator cuff tear, which condition caused him to have symptoms of pain and restriction of movement in the left shoulder, aggravated from time to time by unexceptional physical effort during 1979 and finally substantially aggravated when he tried to lift a heavy object on 5 February 1980, and further aggravated by a series of operations which were intended to relieve his condition.

3. The trial judge found that each element of aggravation was a foreseeable consequence of the original injury and no act on the part of any person other than the appellant operated as a novus actus interveniens. His Honour held that consequently the appellant was wholly responsible for the respondent's condition and the symptoms resulting from the original injury on 9 May 1977.

4. By an amended notice of appeal filed by leave at the hearing additional grounds of appeal were raised and were the only grounds of appeal argued.

5. It was submitted on behalf of the appellant that the trial judge made a number of factual errors on matters going to the question of causation of the respondent's condition following an incident in February 1980. These errors, so the submission went, comprise the following:

(1) that there was no evidence of any particular
incident giving rise to shoulder pain in 1979 and
no suggestion by the appellant that any such
incident had occurred;

(2) that Dr Vance's evidence was directed to the
extent of the respondent's disability and not the
exact nature of his condition and its causation;
and

(3) each element of aggravation was a foreseeable
consequence of the original injury and no act on
the part of any person other than the appellant
operated as a novus actus interveniens.

It was submitted that those errors of themselves would warrant a new trial or, alternatively, that this court is able to decide for itself the factual issue as to the nature and extent of the 1977 injury. It was conceded that if no appealable error was made, his Honour's award of damages could not be challenged.

6. The following facts of the 1977 accident for which his Honour found the appellant liable, a finding against which there is no appeal, are taken from his Honour's judgment. At the relevant time in 1977 the major project in which the appellant was concerned was earthmoving at the Kambah Health Centre but it was also engaged in building an access road in Vosper Street, Wanniassa. The Vosper Street site, or part of it, was used as a sort of store where building materials and the like were kept. It also served as an overnight depot for earthmoving plant and it was on this site that the plant was refuelled and greased each morning. There was also on the Vosper Street site an overhead fuel tank from which the plant could be refuelled. In that operation a certain amount of grease and diesel oil had found its way on to the bare ground and some of it percolated into the soil. There were a number of 44 gallon drums of diesel fuel stored on the site.

7. On the day of his injury the respondent was instructed to go from the Kambah site to Vosper Street in a utility vehicle belonging to the appellant and collect three drums of fuel for refuelling the machinery for the day. He was not given any particular instruction as to how he was to load the drums into the utility. Nor was he given any assistance by way of an off-sider. The plaintiff had done that sort of work many times before and did not regard himself as in need of any instructions or assistance. He dropped the tailgate of the utility and rolled the drums over to it. It is not necessary to go into the facts of the accident other than to recite that the respondent was trying to load one of the 44 gallon drums into the utility when his left foot slipped in the area of the bare ground which had been percolated by grease and diesel oil. The drum started to slip back down off the utility. The respondent kept his left hand under it to stop it from falling on his foot. Then he felt pain in his left-shoulder.

8. The respondent did not cease work that day. He went back to the Kambah Health Centre site and continued to work, favouring his left shoulder for the rest of the day. The following day he saw his local doctor, Dr Chan, who diagnosed the injury as "a muscular strain". The respondent resumed full duties with the appellant on 20 May 1977 and continued to carry out labouring work until 29 September 1978. He then took up employment with a company called Capital Landscape Contractors Pty. Ltd. in a similar position. He remained with that employer until June 1979.

9. The trial judge found that the left shoulder continued to give trouble and that the respondent favoured the shoulder "all the time" because he thought it was like a sprained ankle in that if he gave it a bit of work it would come good again. By April 1979 the shoulder had given him sufficient pain and trouble for him to seek treatment at the Woden Valley Hospital. He received traction treatment to the neck but it did not effect any improvement. He lost a few days from work but then continued with his work. He consulted a chiropractor and obtained some temporary relief.

10. By 5 February 1980 he had changed his employer and had gone to work for a company called Capital Civil Contractors Pty. Limited. On that day an incident occurred when he attempted to assist a fellow worker to free a mechanical compactor which had become stuck in mud. He jarred his shoulder and aggravated the pain. He consulted Dr White, his local doctor, and was referred to Dr W.J. Coyle, orthopaedic specialist. That chronology of events thus far was found by the trial judge. His Honour went on to say:

"There is no evidence of any particular incident which
gave rise to shoulder pain in 1979, and no suggestion
indeed was made on the part of the defendant that any
such incident had occurred."

11. Counsel for the appellant contended that this finding was wrong. He referred to the cross-examination of the respondent where he agreed with the suggestion put to him that in April 1979 he had told Dr Brook at the Woden Valley Hospital that the onset of pain from which he was suffering had come from lifting a pile of hoses. The respondent's answers were to the effect that there was no incident when he was lifting hoses but that what had happened was that he was taking some ropes and shovels off the back of the truck and they had got caught in some hoses and upset the injury. He did not agree that he had not mentioned the May 1977 accident. He maintained that he must have told Dr Brook at the hospital about when he first injured his shoulder.

12. Counsel for the appellant referred to the respondent's evidence that he had only two weeks off work following the incident on 9 May 1977, that between 20 May 1977 and April 1979 the respondent continued to do all the heavy work that he was required to do, had sought no treatment for his shoulder and made no complaint to any doctor about his shoulder within that period of nearly two years, notwithstanding that he had seen his local doctor, Dr Chan, about the 'flu in 1978. After the April 1979 incident he saw Dr Brook at the Woden Valley Hospital but resumed heavy work without any time off until 5 February 1980, when another incident at work occurred.

13. Counsel for the appellant submitted that from the respondent's own evidence there was a particular incident giving rise to shoulder pain in April 1979, that the matter had been raised by the appellant in the conduct of the trial and accordingly that the trial judge's findings to the contrary were clearly wrong on the evidence. The evidence demonstrated, so it was submitted, that the trial judge made a factual error when he found that each element of aggravation was a foreseeable consequence of the original injury and no act on the part of any person other than the appellant operated as a novus actus interveiens.

14. In answer to those submissions counsel for the respondent submitted that the trial judge's findings were supported by other evidence at the trial. Counsel referred to the trial judge's finding that the respondent was a truthful witness and submitted that, when the respondent said in evidence that there was a continuity of pain and trouble with his left shoulder from the initial injury, his Honour had accepted the respondent. Counsel referred to the evidence of the respondent to the effect that after the original injury and treatment by Dr Chan there was no improvement in the shoulder at all; that it still felt the same; that every time he tried to move the socket or shoulder it just kept on aching all the time; and that he used to favour the left shoulder all the time.

15. He referred to the respondent's evidence that he did heavy work with Capital Landscape Contractors Pty. Ltd; that the shoulder used to ache all the time; that prior to admission to the Woden Valley Hospital in April 1979 the shoulder had been paining and aching all the time and that what had led him to seek treatment was that the pain was just getting continuously bad and unbearable so he tried to see "what they could do for it". Accordingly, it was submitted on behalf of the respondent, the trial judge's finding of fact that there was no particular incident which gave rise to shoulder pain in 1979 was correct and supportable on the evidence. It was submitted that the respondent's description of the episodes in April 1979 and February 1980 did not establish that they were separate and distinct injuries but that they were minor aggravations of the earlier injury.

16. It was further submitted on behalf of the respondent that none of the medical witnesses placed the blame for the respondent's residual condition on any incident other than the 1977 incident. Before dealing with that evidence it is desirable to complete the chronology of events as found by the trial judge following the incident on 5 February 1980 when the respondent jarred his shoulder and aggravated the pain in attempting to assist a fellow worker to free a mechanical compactor which had become stuck in mud.

17. The respondent has not worked in employment since 5 February 1980. His Honour referred to the history which the respondent gave Dr Coyle on 29 April 1980 when he was referred to him for management of his left shoulder and left upper limb pain. His Honour observed that the history which the respondent gave to Dr Coyle was much the same as the respondent had given in evidence. The actual history, which is set out in Dr Coyle's report to the respondent's solicitors dated 3 June 1980, was:

"Mr Ryan described a traction injury in his left
shoulder three or four years ago at work caused by
attempting to support the weight of a 44 gallon drum
which was falling. He informed me that there had been
two serious recurrences of pain since that time, first
at Easter 1979 when he was admitted to Woden Valley
Hospital under the care of Dr Andrew Brook, consultant
rheumatologist, where he was treated for cervical
traction and injections in both shoulder and neck, and
the second and presenting episode dating from last
January; this was said to be a result of attempting to
pull an earth compactor out of mud. Mr Ryan stated,
however, that his shoulder had never been really right
since the original injury and that symptoms had been
fairly severe and continuous over the last 12 months.
In the recent January episode, Mr Ryan felt his
shoulder click painfully. He has not worked since that
time."

18. Dr Coyle's opinion, which was accepted by the trial judge, was that the respondent's main problem was a shoulder rotator cuff condition, probably the result of a partial tear of the rotator cuff in the original injury several years ago, resulting in fibrosis and thickening of the tendons and capsule which became trapped between the head of the humerus and acromion and resulting in painful restriction of movement and clicking or snapping.

19. Returning to the chronology, as found by the trial judge, Dr Coyle advised an operation with the caution that the results were not predictable and that further operation might be necessary. The first operation was carried out on 10 September 1980. Dr Coyle's reservations about the possible success were borne out in that the respondent obtained no relief. A further operation of a more extensive nature was carried out on 25 February 1981 when Dr Coyle repaired what he described in his report as "a chronic tear in the left rotator cuff, the site of the supraspinatus tendon rupture, and also transferred the long head of the biceps tendon into the shoulder capsule, as this appeared to be chronically inflamed".

20. On 20 May 1981 a manipulation under anaesthesia was performed. Again the respondent's condition did not improve and on 6 August 1981 Dr Coyle performed a left total acromionectomy and excised adhesions which had resulted from the prior operative procedures. Still the respondent's condition, so the trial judge found, never improved.

21. In his oral evidence Dr Coyle said that, whereas his initial diagnosis was a shoulder rotator cuff condition with probably a partial tear in the rotator cuff, that diagnosis was not confirmed at operation. He said that in actual fact it was a complete tear of the rotator cuff which he elucidated as a full thickness tear. In relation to the episodes in April 1979 and February 1980 Dr Coyle said that they were not complete and separate incidents, that he could not be certain whether the respondent had further damage in the succeeding episodes or incidents or whether he just had a flare up of his original problem, but in his opinion the original injury was the cause, the one that did the damage.

22. Dr Coyle was cross-examined about the symptoms which arise from a full thickness tear of the rotator cuff and a partial tear. He did not resile from his opinion that the cause of the original injury was the 1977 incident when the respondent was lifting the 44 gallon drum and that the intervening incidents in April 1979 and February 1980 were aggravations of the original injury. In re-examination he said that he always believed that the first incident was the important one and he gave further reasons, which it is unnecessary to set out.

23. The trial judge dealt with Dr Coyle's evidence by finding that the effect thereof in relation to the cause and extent of the condition of the respondent up until the time of the first operation was that the severe tearing of the rotator cuff in the original injury, whilst it might have resolved if it had been repaired immediately, had never healed, or had healed, but with some thickening, leading to pain on movement of the shoulder. He referred to the distinction drawn by Dr Coyle between the original injury in 1977 and the subsequent incident in February 1980. In our opinion it was certainly open to the trial judge on the evidence of Dr Coyle and the respondent himself to find that there was no evidence of any particular incident which gave rise to shoulder pain in 1979 and of course to express that finding in his own way.

24. Counsel for the respondent relied also on the evidence of Dr Richard Vance, orthopaedic specialist, who gave evidence on behalf of the appellant at the trial. The trial judge described Dr Vance's evidence as having been really directed towards the extent of the respondent's disability rather than to the exact nature of his condition and its causation. His Honour referred to Dr Vance's original report of 18 October 1982 where Dr Vance said that he could "only conclude the present condition of his shoulder is a result of the accumulative effects of time and treatment to the original injury in 1977". His Honour has not misunderstood or misquoted the evidence from Dr Vance in that respect.

25. In his oral evidence Dr Vance was asked in cross-examination whether, when he wrote his original report and expressed that opinion, he had in mind the episodes which are referred to in the history set out in his report, namely the April 1979 incident and a second episode when he came under the care of Dr Coyle. Dr Vance agreed that he had had those episodes in mind.

26. From a perusal of Dr Vance's oral evidence, there is some force in the criticism of the trial judge's appraisal of that evidence that it was directed towards the extent of the respondent's disability rather than to the exact nature of the condition and its causation. However, the trial judge was entitled to accept the evidence of Dr Coyle where it conflicted with that of the other doctors on the question of the nature of the respondent's injury, his subsequent condition and the question of causation. The trial judge had the advantage of seeing and hearing the medical witnesses give evidence at the trial. We would not be justified in finding any factual error in his assessment of that evidence, where no misapprehension of the facts has been demonstrated.

27. In the exercise of its jurisdiction to hear and determine appeals from judgments of the Supreme Court of the Territory pursuant to s.24 of the Federal Court of Australia Act 1976, this court is to have regard to the evidence given in the proceedings out of which the appeals arose and has power to draw inferences of fact and, in its discretion, to receive further evidence (s.27). It may, in the exercise of its appellate jurisdiction, inter alia, affirm, reverse or vary the judgment appealed from and give such judgment or make such order as in all the circumstances it thinks fit or refuse to make an order (s.28(1)(a) and (b)) (Whim Creek v. Federal Commissioner of Taxation (1977) 17 ALR 421). It is now clear law that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is inordinately high so as to be a wholly erroneous estimate of the damage suffered (Wilson v. Piesley (1975) 7 ALR 571; Precision Plastics Limited v. Demir [1975] HCA 27; (1975) 132 CLR 362 per Gibbs J., as he then was, at 369; Gamser v. The Nominal Defendant [1977] HCA 7; (1976-77) 136 CLR 145; see also the collection and discussion of the authorities in Moran v. McMahon (1985) 3 NSWLR 700 per Priestly J.A.

28. Having considered all the evidence in the matter we are not persuaded that the trial judge misapprehended the facts. There was evidence to support his findings (1) and (3) referred to above. As to (2) above, his description of Dr Vance's evidence was no more than an expression of his assessment of that evidence, which he was obliged to do, and would not call for review by this court.

29. Lastly, it was submitted on behalf of the appellant that the damage flowing from the lifting episode in February 1980 was not compensable at the hands of the defendant, because it was not causally related to the May 1977 accident or, alternatively, it was not reasonably foreseeable. We have already dealt with the first limb of this submission as to the causal relationship between the May 1977 accident and the respondent's capacity for work since the February 1980 accident. The trial judge dealt with the question of foreseeability in the following terms:

"In the light of the above, I make the finding that
the plaintiff's original injury was in the nature of a
rotator cuff tear which condition caused him to have
symptoms of pain and restriction of movement in the
left shoulder, aggravated from time to time by
unexceptional physical effort during 1979 and finally
substantially aggravated when he tried to lift a heavy
object on 5 February 1980 and further aggravated by a
series of operations which were intended to relieve his
condition. Each element of aggravation was, in my
view, a foreseeable consequence of the original injury
and no act on the part of any person other than the
defendant operated as a novus actus interveniens.
Consequently, the defendant is wholly responsible for
the plaintiff's condition and the symptoms resulting
from the original injury on 9 May 1977. These findings
are findings of fact; I do not think it necessary to
discuss problems of law that might arise in different
factual circumstances: see e.g. Mahony v. J. Kruschich
(Demolitions) Pty. Ltd. (1985) 59 ALJR 504, Chapman v.
Hearse [1961] HCA 46; (1961) 106 CLR 112, Griffiths v. Commonwealth 50
ACTR 7."

30. The relevant law on foreseeability of damage is set out in the joint judgment of the High Court (Gibbs CJ, Mason, Wilson, Brennan & Dawson JJ) in Mahony v. Kruschich (Demolitions) Pty. Ltd. (1985) 156 CLR at p 528-9 in the following terms:

"A negligent tortfeasor does not always avoid
liability for the consequences of a plaintiff's
subsequent injury, even if the subsequent injury is
tortiously inflicted. It depends on whether or not the
subsequent tort and its consequences are themselves
properly to be regarded as foreseeable consequences of
the first tortfeasor's negligence. A line marking the
boundary of the damage for which a tortfeasor is liable
in negligence may be drawn either because the relevant
injury is not reasonably foreseeable or because the
chain of causation is broken by a novus actus
interveniens: M'Kew v. Holland & Hannen & Cubitts
(1970) SC (HL) 20 at 25. But it must be possible
to draw such a line clearly before a liability for
damage that would not have occurred but for the
wrongful act or omission of a tortfeasor and that is
reasonably foreseeable by him is treated as the result
of a second tortfeasor's negligence alone: see Chapman
v. Hearse [1961] HCA 46; (1961) 106 CLR 112 at 124-125. Whether
such a line can and should be drawn is very much a
matter of fact and degree: ibid. 122. In Dillingham,
the plaintiff's condition after the subsequent injury
was regarded as falling outside the area of foreseeable
consequences of the earlier act of negligence; there
were 'two injuries, two unrelated acts of negligence'.
Barwick C.J. said (at 327):

'I ought to add that in point of fact I cannot
accept that, however much the workman's
deteriorated condition caused by the first tort
exposed him to the possibility of further harm, an
injury of the nature of that suffered by the
plaintiff in the employ of the cross-claimant was
relevantly foreseeable.'

Where it is not possible to draw a clear line, the
first tortfeasor may be liable in negligence for a
subsequent injury and its consequences although the act
or omission of another tortfeasor is the more immediate
cause of that injury: cf. Lothian v. Rickards [1911] HCA 16; (1911)
12 CLR 165, per Griffith C.J. at 176. Thus Gibbs
J. in Dillingham (at 329-330) accepted the suggestion
that if a pedestrian were run over by two drivers
consecutively, and both were negligent, the injuries
caused by the negligence of the second driver would be
damage for which both drivers are liable if those
injuries were also the foreseeable consequence of the
first driver's negligence.

In particular circumstances, minds may differ as
to whether a subsequent injury was foreseeable or
whether it is too remote to be regarded as a
consequence for which an earlier tortfeasor may be held
liable."

31. We are not persuaded that the trial judge made any error in coming to the conclusion expressed in the passage above that the damage flowing from the February 1980 incident was reasonably foreseeable. His Honour adverted to the question of foreseeability and decided the question on correct principles and on the available evidence.

32. For these reasons the appeal is dismissed with costs.