Anodising & Aluminium Finishers v Coleman [1999] QCA 467

[2] CHESTERMAN J: I agree that the appeal should be dismissed for the reasons given by Douglas J. As his Honour points out the finding of negligence made by the trial judge against the appellant depended upon an assessment of the witnesses and their evidence. It has not been shown that the trial judge erred in accepting the respondent's account of how she came to fall.

[3] The appellant's complaint as to quantum misunderstands the trial judge's finding. It was submitted that allowing damages for economic loss in respect of a period of five years was inconsistent with finding that the fall had accelerated pre-existing degenerative change in the respondent's spinal processes and brought her condition forward by about two years.

"... the [respondent] suffered an injury to her thoracic spine which has resulted in no loss of spinal function but has caused post traumatic changes and consequent pain. As a further result of that fall the [respondent] has suffered an aggravation of the degenerative changes in her lumbar spine. Dr Pentis's opinion is that the fall brought forward the degenerative problems by a year or two at the most. I understand that to mean that had the plaintiff not fallen in August of 1995, the natural progression of her degenerative condition would have been such that by August 1996 or August 1997 she would have been in the same position as she was in late 1995."

[5] The trial judge later noted evidence from Dr Pentis, which he obviously accepted, that the respondent would have worked until she was 60, in the year 2000, had she not fallen in August 1995. The damages for economic loss were calculated in accordance with that finding though, as Douglas J has pointed out, the award was substantially discounted.

[6] I can see no inconsistency in the manner in which the trial judge assessed damages. It was only the condition of the lumbar spine that was accelerated by the fall. The respondent suffered as well an injury to her intact thoracic spine. The trial judge must have accepted that it was the combination of both injuries that caused the respondent to cease work when she did and that the disability in her lumbar spine would not by itself have caused the respondent's early retirement from the workforce.

[7] I am content to adopt Douglas J's views on Bugge v REB Engineering Pty Ltd [1998] QSC 185.

[8] DOUGLAS J: This is an appeal from a decision of a Judge of the District Court in which the respondent was awarded judgment against the appellant in the sum of $93,265.33 for damages for personal injuries suffered in the course of her employment with the appellant in 1994 and 1995.

[9] The respondent was at trial aged 58 years, her date of birth being 12 August 1940. She was employed as a process worker and her duties mostly involved packing aluminium extrusions and mesh into boxes. The work was repetitive in nature and involved bending, lifting and reaching. She worked in a team of two.

[10] The action was brought with respect to two falls alleged to have occurred at work in 1994 and 1995. It was not alleged at trial that the first fall was caused by the appellant's negligence and no damages were claimed in respect of that fall. As the learned trial Judge said:

"The plaintiff's case is that after the first fall the defendant knew or ought to have known that she was suffering from symptoms of spinal strain or injury, but still required her to undertake heavy and repetitive duties from time to time which caused a back strain injury and exacerbation of degenerative changes within her spine . . . . In relation to the second fall the plaintiff's case is that as a result of this fall she suffered further back strain injury and an aggravation of her degenerative changes caused by the defendant's negligence as particularised in paragraph 11 of the complaint."

[11] The learned trial judge found against the respondent with respect to the first alleged fall and said:

The most that can be said is that the defendant knew in January 1994 that the plaintiff had suffered some recent injury at work. On the evidence, that injury was a minor injury, the symptoms of which were of short duration and responsive to treatment. Nothing occurred after January 1994 which would have indicated otherwise to the defendant. There was nothing which ought to have put the defendant on notice that the plaintiff was at risk of suffering further injury or an aggravation of any pre-existing condition if she continued to perform the duties expected of her. She made no specific complaint of difficulty or discomfort in performing her work and did not take time off work for any reason related to back symptoms. Nor do I think that the defendant was bound to make enquiries of the plaintiff after January 1994 to ascertain whether she had fully recovered from the symptoms for which she had been treated at the defendant's expense or whether she was continuing to suffer symptoms, and, if so, whether those symptoms were related to her work duties."

[12] However, his Honour did find that the second fall occurred as described by the respondent. He did so being well aware of the conflicting evidence about its occurrence. He said: "The plaintiff gave evidence that Ms Hunter saw her fall but Ms Hunter said there was no fall. Neither witness was lying, but the recollection of one of them is plainly unreliable."

[13] The learned trial Judge then went on to find that the fall occurred in circumstances where the appellant was negligent and in breach of its duty as an employer to provide a safe place of work. The respondent's case was that she, whilst walking backwards and pulling paper from a roll, tripped or fell over a protrusion being a steel plate above a trolley wheel in her path. There was evidence that the steel plate had been reduced in size after the accident and photographs tendered at the trial show that this in fact occurred. His Honour correctly found that the fact that the modification was done was evidence that the appellant had the available means to fairly easily cut off anything protruding from the trolley, which demonstrated the reasonableness and practicability of that ameliorative measure. He found that the appellant's previous failure to remove or reduce the extent of the protrusion and its failure to redesign the system of work so as to avoid the necessity of walking backwards was negligent and caused the plaintiff's injuries. Nothing has been advanced which convinces me that the learned trial Judge fell into error in any way.

[14] Consequently the appeal in respect to liability must fail. An appeal that the learned trial Judge should have found the respondent to have been contributorily negligent was abandoned at the outset of the hearing of this appeal.

[15] At the appeal and by written submissions afterwards, the appellant submitted that the learned trial Judge erred in law in applying the decision in Thomas v O'Shea (1989) Aust. Torts Reports 80-251 in finding that the respondent had a residual earning capacity. The appellant seeks leave to amend its notice of appeal accordingly.

[16] Thomas v O'Shea (supra) was considered by Chesterman J in Bugge v REB Engineering Pty Ltd [1998] QSC 185 where his Honour said having referred to Linsell v Robson [1976] 1 NSWLR 249, and Baird v Roberts [1977] 2 NSWLR 389:

"[54] The New South Wales cases do not support the proposition that once the plaintiff has proved the matters referred to in Thomas, damages must be assessed on the basis that his earning capacity has been destroyed unless the defendant discharges the evidentiary burden described. They do no more than show that the absence of evidence from a defendant as to available alternative employment may well lead, depending upon the calibre of the plaintiff's evidence, to that conclusion."

"[50] This being the nature of an evidentiary onus, it seems to me impossible to propound in advance as a principal of law where an evidentiary onus will lie. It can only be determined in the course of evidence at trial. I cannot accept that, as a matter of law, I must find that the plaintiff has no residual earning capacity because the defendant did not adduce evidence that work of which the plaintiff is capable is available. In my view, the assessment of damages for lost earning capacity has to be made with reference to all the evidence that touches that point including, of course, evidence (or the lack of it) as to the availability of work which an injured plaintiff can perform. But there can be no mechanistic approach which requires the court to disregard residual earning capacity unless a defendant adduces evidence of available alternative work."

[19] In any event in this case the plaintiff was at trial aged 58 and suffered from an obviously worsening degenerative abnormality of her back. Her pre-accident work experience in a demanding and laborious, semi-skilled occupation was such that she was not likely to find other work and because of her degenerative condition was likely to cease working all together somewhat prematurely. The learned trial judge only allowed future economic loss to age 60 and then further discounted that assessment. The appellant submitted that she had no residual earning capacity on the evidence. However, his Honour found she did. The significant discounting applied by the learned trial Judge in the assessment of future economic loss amply covered the contingencies.

[20] It follows that it is not necessary to consider the question of whether or not leave should be granted to amend the Notice of Appeal at this late stage bearing in mind that an appeal on that ground with respect to future economic loss must fail.