Better Alternative Transport Pty Ltd v The Nominal Defendant

Causation 13The worker said that he was showered with glass in the course of the accident, some of which lodged in his face, arms and legs. He felt pain in his left shoulder, the intensity of which increased when he assisted in unloading the stock that remained in the damaged truck. 14He consulted his general practitioner, Dr Wu, on the day of the accident. Dr Wu certified him unfit for work by reason of a left shoulder injury. The worker's compensation claim form dated 2 February 2007 described the injury as a torn soft tissue injury to his left shoulder. 15Dr Wu certified the worker unfit for work until 28 February 2007. This period was subsequently extended to 9 March 2007. He was certified unfit for work on 14 March 2007 but fit for pre-injury duties from 15 March 2007. 16The full duties to which the worker returned on 15 March 2007 included loading and unloading frozen food that was delivered to fast food outlets. He was required to lift loads of up to 20 kgs, using both arms with a full range of movement to move boxes of frozen food to positions at different heights and locations. 17The worker continued to do this work between 15 March 2007 and 24 July 2007 without taking time off. He said that he continued to suffer from pain in his left shoulder and that he managed his work by favouring his right arm. He said this was a matter of necessity because he had to provide for his family, comprising his partner and six children, four of whom lived with him full time and two of whom lived with him on alternative weekends and for periods during school holidays. 18On 24 July 2007 the worker was placing boxes of food into a freezer at the premises of Kentucky Fried Chicken at Narellan. He slipped on ice on the floor and fell, striking his left shoulder against the wall of the freezer. 19The worker said he thought his shoulder had been dislocated and he suffered a significant increase in pain. His general practitioner referred him to Dr Kuo, orthopaedic surgeon, whom he consulted in October 2007. Dr Kuo ordered an MRI investigation that revealed a full thickness rotator cuff tear. Dr Kuo treated this injury with several surgical procedures. 20After the procedure performed on 26 November 2008 an infection developed in the wound. The plaintiff claimed that this infection was subsequently identified as MRSA. 21The worker's rehabilitation included physiotherapy. This involved his participation in a gym program, under the supervision of the physiotherapist, designed to strengthen the muscles in his shoulder. The therapy included bench pressing weights of gradually increased sizes. By the end of 2011 the weights totalled 20 kgs. In the course of lifting this weight the worker suffered the onset of back pain. He denied that he previously experienced back pain. 22A CT scan of 15 February 2012 demonstrated the presence of disc bulges at L3/4 and L4/5 as well as degenerative lumbar spondylosis. 23The worker recovered from the injury to his left shoulder. He continued to be unfit for work. The plaintiff claimed this was because of disability resulting from the back injury.

The Incident of 24 July 2007 24The defendant's principal contention was that, on returning to work on 15 March 2007, the worker was fully recovered from any injury to his left shoulder that he suffered in the motor vehicle accident. It also argued that, since the injury of 24 July 2007 occurred as a result of impact and not in the course of the direct use of his left arm, I should find that it was a fresh injury. 25The problem facing the defendant was that at no stage did it challenge the worker's credit. Nor did I have reason to reject his statement that, notwithstanding the rigorous nature of his work, he performed it while he continued to suffer left shoulder pain. 26Further, the defendant's contention was not supported by medical opinion. Dr Wu, Dr Pillemer, Dr Marchant and Dr Stephen all reported that the incident of 24 July 2007 caused an aggravation of the original injury. 27Dr Wu issued medical certificates that described his diagnosis as injury left shoulder aggravation of old injury dated 30.1.01. 28Dr Marchant, noting the history that the left shoulder symptoms were not fully resolved by the time of the second injury, said it was reasonable to conclude that on 30 January 2007 the worker suffered a partial tear of the left rotator cuff that was aggravated by the impact injury of 24 July 2007. 29The defendant presented no medical report that provided a different opinion. 30I concluded that the evidence established a probability sufficiently strong to warrant a finding that the original injury was not fully resolved at the time of the incident of 24 July 2007 and that the increase in symptoms suffered as a result of that incident was caused by the aggravation of the injury suffered in January 2007. 31The plaintiff drew my attention to this extract from the reasons of the Chief Justice Malcolm in the West Australian Supreme Court in State Government Insurance Commission v Oakley (1990) ATR 81-003 (WASC) at 67,577: "(1) where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence; (2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and (3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first." 32My finding that the incident of 24 July 2007 aggravated the injury suffered on 30 January 2007 placed this injured worker into the second category identified by Chief Justice Malcolm. 33Accordingly, I find the defendant liable to indemnify the plaintiff in respect of its liability to the worker for compensation paid as a result of the aggravation of the injury that occurred on 24 July 2007.

The Back Injury 34The defendant similarly argued that it was not responsible for any element of compensation said to have arisen as a result of the back injury suffered in the course of the gym program. 35The defendant pointed to evidence that indicated there was some degenerative disease affecting the worker's spine but it did not challenge the worker's statement that he suffered no back pain prior to this incident at the gym. In those circumstances, it appeared that, as is commonly the case, the indications of degeneration disclosed by the CT scan resulted in no prior symptoms. 36The plaintiff relied on the reasons of the High Court in Mahony v J Kruschich (Demolitions) Pty Ltd & Anor (1985) 156 CLR 522; (1985) 59 ALR 722 that dealt with the circumstances in which medical treatment causing a subsequent injury might or might not be regarded as a foreseeable consequence of the original injury. The relevant part of those reasons was (at 529-530): "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. When an injury is exacerbated by medical treatment, however, the exacerbation may easily be regarded as a foreseeable consequence for which the first tortfeasor is liable. Provided the plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment need not be regarded as a novus actus interveniens which relieves the first tortfeasor of liability for the plaintiff's subsequent condition. The original injury can be regarded as carrying some risk that medical treatment might be negligently given: see Beavis v. Apthorpe (1962) 80 WN (NSW)852, at p 858; Moore v. A.G.C. (Insurances) Ltd. (1968) SASR 389, at p 394; Lawrie v. Meggitt (1974) 11 SASR 5, at p 8; Price v. Milawski (1977) 82 DLR (3d) 130, at pp 141-142; Katzman v. Yaeck (1982) 136 DLR (3d) 536. It may be the very kind of thing which is likely to happen as a result of the first tortfeasor's negligence (cf. per Lord Reid in Dorset Yacht Co. v. Home Office [1970] UKHL 2; (1970) AC 1004, at p 1030). That approach is consistent with the view taken in workers' compensation cases that the total condition of a worker whose compensable injury is exacerbated by medical treatment, reasonably undertaken to alleviate that injury, is to be attributed to the accident: see Lindeman Ltd. v. Colvin (1946) [1946] HCA 35; 74 CLR 313, per Dixon J. at p 321; Migge v. Wormald Bros. Industries Ltd. (1972) 2 NSWLR 29, per Mason J.A. at p 48; on appeal (1973) 47 ALJR 236, although medical negligence or inefficiency can be held to amount to a new cause of incapacity in some circumstances: Rothwell v. Caverswall Stone Co. (1944) 2 All ER 350, at p 365; Hogan v. Bentinck Collieries (1949) 1 All ER 588, at p 592. In the last-mentioned case Lord Reid, in dissent, expressed the opinion that there is a break in the chain of causation when a doctor is guilty of such negligence as would make him liable in damages. We think, with respect, that that test is too rigid. Some degree of medical negligence in the treatment of an injury may well be a reasonably foreseeable result of the act or omission by which that injury was inflicted, and then no clear line can be drawn to limit the original tortfeasor's liability to exclude the consequences of medical negligence. However, in the ordinary case where efficient medical services are available to an injured plaintiff, the original injury does not carry the risk of medical treatment or advice that is "inexcusably bad" (Martin v. Isbard (1946) 48 WALR 52 at p 56), or "completely outside the bounds of what any reputable medical practitioner might prescribe" (Lawrie v. Meggitt, at p 8) or "so obviously unnecessary or improper that it is in the nature of a gratuitous aggravation of the injury" (South Australian Stevedoring Company Limited v. Holbertson [1939] SAstRp p 37: (1939) SASR 257, at p 264) or "extravagant from the point of view of medical practice or hospital routine" (Hart and Honore Causation in the Law, (1959), p.169). In such a case, it is proper to regard the exacerbation of a plaintiff's condition as resulting solely from the grossly negligent medical treatment or advice, and the fact that the plaintiff acted reasonably in seeking and accepting the treatment or in following the advice will not make the original tortfeasor liable for that exacerbation." 37In the current case, there was no material before the court to suggest that the subsequent back injury was the result of gross or any negligence by treatment providers. I therefore could not excuse the defendant from liability on that basis. The injury to the worker's lumbar spine occurred in the course of treatment that was properly and reasonably undertaken by the worker to deal with the original injury. I formed the opinion therefore that back injury was sufficiently causally related to the accident of 30 January 2007 to render the defendant liable for that injury.

Assessment 38The plaintiff acknowledged that, following his recovery from the left shoulder injury, the worker's condition was of insufficient severity to allow for a claim for non-economic loss. Its claim was therefore limited to loss of income and out of pocket expenses. 39The worker remained unemployed at the time of the hearing. The issue was the extent to which his unemployment was caused by the injuries suffered as a result of the accident. 40The defendant claimed that the worker's employability was affected not only by the back injury but by the MRSA infection from which he suffered and from a serious psychiatric condition.

MRSA 41The worker maintained that he contracted the MRSA infection in the course of shoulder surgery in November 2008. He denied that he was informed that the infection occurred when he was treated for an unrelated condition in August 2008. 42The defendant relied on the report of Associate Professor Eisen, dated 23 April 2012, that raised two issues of note. Medical records made available to Associate Professor Eisen showed the presence of MRSA in swabs taken from an area of trauma treated following injury in August 2008. The worker agreed that this area was drained after surgery. He appeared to be unaware that this was necessary because the wound was infected or that the source of the infection was MRSA. 43Associate Professor Eisen also noted that the strain of infection, which he described as caMRSA, was infrequently acquired in hospitals and was characteristically acquired outside the hospital environment in Australia. 44The medical records referred to by Associate Professor Eisen were not in evidence nor was there any attempt by the plaintiff to respond to his opinions. In such circumstances, I accepted Associate Professor Eisen's opinion. 45I find that the MRSA infection was not causally related to the accident of 30 January 2007.

The Psychiatric Condition 46Again, the defendant relied on expert opinion to which the plaintiff provided no response. Again the medical expert referred to medical records that were not in evidence, leading to the inference that the plaintiff accepted that those references were accurate. 47They indicated that the worker had a history of psychiatric ill health that predated the accident but did not preclude him from full time employment. The records also made it clear that that the worker's mental health has deteriorated. The plaintiff did not claim that this deterioration was the result of the physical injuries suffered by the worker. 48The worker agreed that his mental health deteriorated four years ago following in incident that affected one of his children. He suffered from an episode of psychosis and he was admitted to hospital for treatment. 49The worker said that he believed that since mid-2012 he had been capable of sedentary work. He thought he could do this full time with overtime if it was offered to him. His attempts to date to secure employment have been unsuccessful. He said that, as instructed by the workers compensation insurer, he disclosed to potential employers his ongoing back problems and the MRSA infection. He also disclosed his mental health problems. 50The expert relied on by the defendant was Dr Martin, psychiatrist. His opinions were affected by the fact that he did not examine the worker, basing his reports on medical records. Dr Martin was also clearly influenced by DVD surveillance recordings that suggested to him that the worker exaggerated the extent of the ongoing disability in his left shoulder. The inconsistency between the level of capacity shown in surveillance material and that reported by the worker was simply explained. The observations were made before the worker was treated with further surgery that resulted in his very substantial recovery from symptoms in the left shoulder. 51Dr Martin's opinion was that factors other than the shoulder injury contributed to his psychiatric condition. He did not express an opinion concerning the extent to which the mental illness affected the worker's capacity for employment. 52The plaintiff's general practitioner reported, however, that the worker was prevented from working by back pain and his psychotic medication that affected his capacity for concentration and rendered him a risk to himself and to others. 53The worker was 41 years old at the time of the hearing. He held no formal qualifications and his employment history was of unskilled or labouring work suited to his basic level of education. 54I concluded that realistically the worker had little prospect of obtaining employment. Even if the consequence of the MRSA infection were disregarded, the deterioration in his mental health itself presented a significant barrier to his employment. 55The defendant claimed that the assessment of the worker's income earning capacity should extend only to the date of an episode of mental illness that resulted in admission to hospital in November 2011. Dr Martin reported hospital admissions at an earlier date but, in the absence of evidence of clinical records or a chronology of events, there was no basis for a finding that these admissions were the sole or dominant reason for the worker's continuing unemployment. 56The plaintiff conceded that an adjustment should be made. It sought to recover 50% of $1,200, or half of the maximum net weekly income earned by the plaintiff at the time of the accident with a further discount of 20% for vicissitudes to take account of the plaintiff's residual income earning capacity. 57The defendant also proposed that the amount claimed should be reduced by 50%. 58I accepted that the 50% discount proposed by both parties was appropriate. I did not accept that this discount should be applied, as proposed by the plaintiff, to the maximum amount paid in net wages at the time of the accident. I considered it more appropriate to apply the discount a figure of $900, being the average of the net wages paid as disclosed in the payslips contained in Exhibit A. 59The result was that I reduced the claim for past income loss by $450 for 87 weeks or $39,150 for the period from 1 December 2012 to 31 August 2013. The sum awarded was $117,759.05. I allowed superannuation on past income loss at the rate of 9% in the sum of $10,598.31. 60I allowed loss of income earning capacity for the future at the rate of $450 net per week. I considered that it was not necessary to discount further by increasing the allowance for vicissitudes beyond the standard 15%. 61For the future, I allowed income loss in the sum of $282,208.50 and superannuation at the rate of 9.25% in the sum of $26,014.28. 62The defendant did not challenge the claim for $107,496.77 for past medical expenses. 63The plaintiff claimed a buffer of $50,000 for future expenses but provided no explanation to support the sum claimed or evidence from the worker of expenses likely to be incurred. The only assistance in this regard was provided by Dr Stephen who said that further investigation was required to determine what might be appropriate by way of future treatment. He suggested that perineural nerve root injections might relieve the worker's back pain. 64In the absence of more precise evidence, I was prepared to accept that treatment in the form of pain relief was likely to be necessary and I allowed the sum of $35,000 to meet the cost of this treatment. 65I applied the interest rates used by Mr Olsen, chartered accountant, to recalculate interest to take account of the reduction made in the award for past income loss. I allowed interest in the sum of $63,633.08. 66In summary, I assessed the plaintiff's notional damages as follows: Past income loss $117,759.05 Past superannuation 10,598.31 Future income loss 282,208.50 Future superannuation 26,014.28 Past out of pocket expenses 107,496.77 Future medical expenses 35,000.00 Interest 63,633.08 Total $642,799.99

ORDERS (1)Verdict and judgment for the Plaintiff in the sum of $330,823.90, comprising payments made pursuant to the Workers Compensation Act 1987 in the sum of $264,255.82 and interest on that sum pursuant to s 100 of the Civil Procedure Act 2005 in the sum of $66,568.08. (2)The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis to 8 July 2013 as agreed or assessed. The defendant is to pay the plaintiff's costs on the indemnity basis from and including 9 July 2013 as agreed or assessed. (3)The exhibits are returned. (4)My reasons are published. 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. Decision last updated: 25 September 2013