Mecho Constructions Pty Ltd v. Ryan, W.R. [1987] FCA 80

2 SFEB 1987

FEDERAL COURT OF AUSTRALIA € &

CATCHWORDS

PRINCIPAL REGISiAY

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.

On Appeal from the Supreme Court of the Australian Capital Territory

MECHO CONSTRUCTIONS PTY LIMITED v. WILLIAM ROY RYAN

A.C.T. No. G.15 of 1986

Coram: Fisher, Gallop and Neaves JJ. Date: 19 February, 1987

Canberra.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

No. ACT G15 of 1986

DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MECHO CONSTRUCTIONS PTY

LIMITED Appellant

AND: WILLIAM ROY RYAN

Respondent

ORDER

Judges Making Order Fisher, Gallop and Neaves JJ.

Date of Order 19 February, 1987

Where Made

Canberra.

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

No. ACT G15 of 1986

DISTRICT REGISTRY

ee SS SS

GENERAL DIVISION

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MECHO CONSTRUCTIONS PTY

LIMITED

Appellant

AND: WILLIAM ROY RYAN

Respondent

Coram: Fisher, Gallop and Neaves JJ.

Date: 18 February, 1987

REASONS FOR JUDGMENT

THE COURT

This 1S 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

The respondent's cause of action arose out of an

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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 i1njury 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.

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 intervenilens. 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.

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.

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

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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 1s able to decide for itself the factual issue as to the nature and extent of the 1977 injury. It was conceded that 1f no appealable error was made, his Honour's award of damages could not be challenged.

The following facts of the 1977 accident for which his Honour found the appellant liable, a finding against which there 1S 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 1t 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 1t was on this site that the plant was refuelled and greased each

morning. There was also on the Vosper Street site an

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overhead fuel tank from which the plant could be refuelled. In that operation a certain amount of grease and diesel o1l had found its way on to the bare ground and some of 1t percolated into the soil. There were a number of 44 gallon drums of diesel fuel stored on the site.

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 1S 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 011. 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 the left-shoulder.

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

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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. 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 1f 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. 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 1S 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."

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

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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.

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.

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

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contrary were clearly wrong on the evidence. The evidence demonstrated, so 1t 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 interveniens.

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 alli the time; and that he used to favour the left shoulder all the time.

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 Vailey 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 1t". Accordingly, 1t was

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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 injurires but that they were minor aggravations of the earlier injury.

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 1t 1S 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.

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 1n Dr Coyle's report to the respondent's

solicitors dated 3 June 1980, was:

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"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."

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.

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

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tendon rupture, and also transferred the long head of the biceps tendon into the shoulder capsule, as this appeared to be chronically inflamed".

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 acromlonectomy and excised adhesions which had resulted from the prior operative procedures. Still the respondent's condition, so the trial yudge found, never improved.

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.

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

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said that he always believed that the first incident was the important one and he gave further reasons, which it 1S unnecessary to set out.

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 1t 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 1n his own way.

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 1ts 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 1s a result of the accumulative effects of time and

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treatment to the original injury in 1977". His Honour has not misunderstood or misquoted the evidence from Dr Vance in that respect.

In his oral evidence Dr Vance was asked 1n 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 ha@ had those episodes 1n mind.

From a perusal of Dr Vance's oral evidence, there 1s some force in the criticism of the trial judge's appraisal of that evidence that 1t 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.

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 1S to have regard to the evidence given

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in the proceedings out of which the appeals arose and has power to draw inferences of fact and, in 1ts 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

1s 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) 132 CLR 362 per Gibbs J., as he then was, at

369; Gamser v. The Nominal Defendant (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.

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.

Lastly, 1t was submitted on behalf of the appellant that the damage flowing from the lifting edpisode

in February 1980 was not compensable at the hands of the

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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

1t 1S 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 1s 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) 132 CLR 362 per Gibbs J., as he then was, at 369; Gamser v. The Nominal Defendant (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.

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.

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

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defendant, because 1t was not causally related to the May 1977 accident or, alternatively, 1t 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 conseguence 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 1s 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 1t 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) 106 CLR 112, Griffiths v. Commonwealth 50 ACTR 7."

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) 1n 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 1s 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 1s liable in negligence may be drawn either because the relevant injury 1S not reasonably foreseeable or because the

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chain of causation 1s broken by a novus actus interveniens: M'Kew v. Holland & Hannen & Cubitts (1970] S.C. (H.L.) 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) 106 C.L.R. 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 deter1lorated 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 1S not possible to draw a clear line, the first tortfeasor may be liable in negligence for a subsequent injury and 1ts consequences although the act or omission of another tortfeasor 1s the more immediate cause of that injury: cf. Lothian v. Rickards (1911) 12 C.L.R. 165, per Griffith C.J. at 176. Thus Gibbs

J. in Dillingham (at 329-330) accepted the suggestion that 1f 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 1t 1S too remote to be regarded as a consequence for which an earlier tortfeasor may be held liable."

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

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to the question of foreseeability and decided the question on correct principles and on the available evidence.

For these reasons the appeal 1s dismissed with

costs.

Oo I certify that this and the />

preced.ng pe as are a true copy of the Reasons for Juggment herein of his Honour

Mr. Justice

Associate

Dated: jy Aha VPEP 1