CLIFTON BRICKS PTY LTD v GERLACH [2003] NSWCA 257

New South Wales Court of Appeal

CITATION : CLIFTON BRICKS PTY LTD v GERLACH [2003] NSWCA 257 HEARING DATE(S) : 5 September 2003 JUDGMENT DATE : 5 September 2003

JUDGMENT OF : Sheller JA at 1; Santow J at 9; Davies AJA at 10 DECISION : Appeal dismissed with costs.

CATCHWORDS : APPEAL - negligence of employer - causal connection with injury - back injury - congenital condition LEGISLATION CITED : N/A CASES CITED : Purkess v Crittenden (1965) 114 CLR 164 PARTIES : Clifton Bricks Pty Ltd - Appellant Armin Gerlach - Respondent FILE NUMBER(S) : CA 40435/98 COUNSEL : W P Kearns SC - Appellant P R Callaghan SC - Respondent SOLICITORS : Hunt & Hunt - Appellant Gary Robb & Associates - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 6583/97 FILE NUMBER(S) : LOWER COURT Morrison ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40435/98 DC 6583/97

SHELLER JA SANTOW JA DAVIES AJA

Friday, 5 September 2003 CLIFTON BRICKS PTY LIMITED v GERLACH Judgment 1 SHELLER JA: This is an appeal from a decision of Morrison ADCJ in the District Court given on 21 May 1998. One ground of appeal was dealt with separately by this Court and then was taken to the High Court where the decision of this Court was overturned. As a result the other grounds of appeal were referred back to this Court to deal with. 2 The plaintiff, Mr Armin Gerlach, sued the defendant, Clifton Bricks Pty Limited for damages for personal injury arising from his employment in 1983 and 1984. The nub of the plaintiff's complaint was that in late 1983 while so employed the Caterpillar forklift on which he worked as a driver with pneumatic tyres was replaced with a Hyster forklift with solid rubber tyres at the front and a short wheelbase which gave a much rougher ride, especially when driving over fallen bricks which apparently were common on the work site.

3 The plaintiff started to experience pain in his lower back. He said that he complained to the production manager and to the dispatch clerk. He asked that the tyres be changed to pneumatic but this was refused by his manager. The back pain included pain radiating down his right leg. The plaintiff said the pain got worse but he was still coping until about November 1984 when after a series of jolts he had two weeks off work.

4 The plaintiff succeeded in the proceedings in the District Court and was awarded damages in an amount of $390,000. The defendant/appellant relies upon an amended notice of appeal in which particularly grounds 2,4,5 and 6 were said to be pressed. However, the main thrust of the argument was that his Honour erred in holding that the plaintiff's back condition was causally connected with any negligence of the employer. That argument was addressed today by Mr Kearns SC. In substance, as I understood the oral argument, it was directed to what was said to be the lack of expert medical evidence connecting complaints made by the plaintiff about jarring or jolting on the forklift with the hard tyres to the particular back injury that the plaintiff suffered. There seems to be no debate but that the plaintiff suffered from a chronic lower back condition which caused him constant pain.

5 The trial Judge carefully reviewed the evidence and carefully summarised what was said in the reports of various medical and other experts which were relied upon. None of these expert witnesses was required to give oral evidence. Having reviewed this evidence and the submissions that had been put to him, his Honour said: "It is clear that the plaintiff was a poor historian. However, the length of time since these problems arose at least partially explains that."

I should point out that the events with which we are here concerned were in 1983 and 1984. I continue with the quotation: "The other witnesses for both sides were no better. It is however clear to me that the plaintiff's low back and right leg problems pre-date complaints about the forklift and probably pre-date the arrival of the forklift with solid rubber tyres on the scene. I am driven to the conclusion that Dr Hutton is correct in thinking that the plaintiff had a congenital back condition which was symptomatic at least since early 1983. However I think there is sufficient evidence to support the plaintiff's history of complaint of problems in relation to the forklift. I am satisfied that the forklift was causing the plaintiff problems and that he did complain of it on a number of occasions over a period of time. The evidence of Mr Stanley in particular supports this. I am satisfied that the defendant knew, or should have known of this through its employees. There was an initial refusal to take action and it was only after the plaintiff took two weeks off with back pain that approval was finally given to change to pneumatic tyres. I do not accept the view of Dr Olsen that there was no relationship between the tyres and the back problem. Clearly the defendant company did not share his view because they changed the tyres. On the other hand I do not think that the forklift caused the plaintiff's problems, rather it exacerbated a pre-existing congenital problem which was already symptomatic. The fact however is that until late 1984 the plaintiff had been able to manage to do his work. The forklift in my view made the difference between his employment and his inability to continue in that capacity at that time. That is not to say that the plaintiff would not have had trouble in any event. Clearly he was going to have difficulty with his back in the future even if he had not been driving forklifts". 6 When his Honour came to assess damages he took account of the reality that quite apart from this particular injury, the plaintiff was going to have back problems in the future and discounted the damages accordingly. His Honour also took account of the degree to which thereafter the plaintiff was employable though apparently, except for quite short periods, he had been unable to obtain work.

7 Mr Kearns pointed to a number of passages in the medical reports where opinions had been expressed about the connection between the driving of the forklift with the hard tyres and the plaintiff's chronic back condition. The point was made that these reports were historically inaccurate in that they failed to take account of the fact that prior to his starting working on the hard-tyred forklift the plaintiff had experienced back problems as a result of lifting bricks. However, it is plain enough from the medical evidence that the pain he suffered as a result of this was of quite a different and lesser significance than the chronic and continuing back pain that he suffered once he started driving the forklift with the hard tyres. It seems to me plain enough from the medical evidence that it was open to his Honour to conclude that there was a causative connection. Certain it is from the plaintiff's own evidence that it was a finding available and open to the trial Judge.

8 In my opinion, and with due respect to the careful argument advanced by counsel, it was amply open to his Honour to find the causal connection that he did. As I understand the submissions as they were put to us, if the Court came to that conclusion the appeal inevitably fails. In my opinion, for the reasons I have given, the appeal should be dismissed with costs. 9 SANTOW JA: I agree. I would only add this. The circumstances of this case are an apt illustration of the principles enunciated in Purkess v Crittenden (1965) 114 CLR 164, particularly at 168. Here the plaintiff in the original proceedings had established on a prima facie basis, for the reasons earlier set out by Sheller JA, that the conditions of work constituted by the forklift and the uneven site with bricks strewn about materially contributed to his back injury. That being so the evidentiary onus shifted to the appellant to establish that the pre-existing back condition of the respondent precluded any causal effect of those working conditions in the injury suffered by the respondent. This the appellant failed to do for the reasons earlier explained by Sheller JA. 10 DAVIES AJA: I agree with Justice Sheller.

11 SHELLER JA: The order of the Court is that the appeal is dismissed with costs. CALLAGHAN: Could I just clarify one matter as to costs, your Honour. The matter is back before the Court on remittal from the High Court of Australia. In remitting the matter the High Court ordered that the costs of the appeal to the Court of Appeal be in the discretion of that court. Clearly that is covered by the generality of the order that is made but the particular aspect of the costs that should be clarified is that the costs of the previous Court of Appeal hearing would be included in the costs.

SHELLER JA : They are all part of the costs of the appeal. Is it necessary for me to say anything more? You've made that point, it's on the transcript.

CALLAGHAN: With respect, no, I've made the point your Honour. It's just that given the order of the High Court it was a matter that was causing some concern. Thank you.

SHELLER JA : Are you content with that Mr Kearns?

KEARNS: Yes. There is nothing I can say about that your Honour. **********

Last Modified: 09/19/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.