CONCRITE PTY LTD v ROGERSON

Court of Appeal (NSW)|2002-09-10|Before: Handley JA, Sheller JA, Young CJ

Background 5 Mr Rogerson was born on 26 October 1950. There was no issue that he suffered some injury in the fall nor that at the time of the trial he was in poor health. The difficulty in assessing damages, which the trial Judge acknowledged in her reasons for judgment, was how to determine the extent to which the injury he suffered was attributable to the fall. 6 On 24 August 1998 Mr Rogerson tried to return to work but found he was not ready. He was certified fit to return to work (without qualification) by Dr Givney, his general practitioner, on 31 August 1998, and did so. The trial Judge said that thereafter he attended work and worked as a driver, for some months. He performed his full range of driving duties, although he took longer about his tasks than before. He did not undertake the heavy yard work that he had previously performed when work was slow. His supervisor exempted him from this. He apparently continued to receive prescriptions for Ativan which had been prescribed to him for depression for some years before his fall. 7 In March 1999 Mr Rogerson resigned and travelled "north" driving and towing a caravan. Her Honour said that he resigned for "personal reasons". His marriage and a subsequent relationship had ended. He was in considerable financial difficulty. The trial Judge said that had he chosen to do so he could have continued in his employment with Concrite, discharging the same driving (including unloading) tasks. After his fall he was not required to do yard duty (whether he was able so to do or not). The trial Judge did not believe he was dependent on analgesics to undertake his work for Concrite or to assist him to drive north. 8 The trial Judge accepted Mr Rogerson suffered acute back pain during his travels north. About the end of 1999 he suffered severe back pain in Darwin but saw no doctor about it. Some time after this he drove back to Mackay where he attended on various doctors, "most" unrelated to the fall. In Mackay his back pain became particularly acute. He returned to New South Wales and on 3 March 2000 saw Dr Givney and several other doctors.

Medical evidence 9 The medical evidence consisted entirely of reports, certificates, correspondence and clinical notes. None of the medical witnesses was required to give oral evidence. Dr Phil Egan from Mackay gave the following report dated 10 July 2000 which was tendered on behalf of Mr Rogerson: "This man first presented to me on the 15/2/2000 with regard to back problems. He stated that he had had a fall from a concrete truck some 18 months previously and sustained a crush fracture of his lumbar spine. A CT scan was performed on his lumbar spine and I enclose a copy of the results. He was seen again on the 16/2/2000 and the various options of treatment for his back were discussed. After discussing pros and cons of treatment with him we elected conservative therapy and he was prescribed Naprosyn medication and advised of back maintenance. With regard to his psychiatric problems he was seen by me on the 22/12/1999 and the 12/1/2000. He had a letter from his general practitioner in Engadine which stated that he had ongoing anxiety - depression which was well controlled with Ativan medication. I do not have any documentation or any recollection of discussing this problem with regard to his back problems but there is no doubt that anybody who has a significant anxiety - depression illness would have been adversely affected by any such debilitating injury. It was quite apparent to me that Mr Rogerson had most likely developed an addiction to the Ativan tablets he was taking and it was suggested that he have a consistent amount each day rather than the variable amount that he was taking. It was also discussed about possibly withdrawing from these Ativan over a period of time. It is difficult to know how much of his back problem was related to the injury and how much was related to degenerative changes." 10 The trial Judge referred to the last sentence in this report and said it neatly summarised the problem that confronted her. After referring to reports prepared by Dr Andreas Loefler (Mr Rogerson's treating orthopaedic surgeon), Dr Julian Adler (who prepared a report on the results of the MRI), Dr David Maxwell (another orthopaedic surgeon), Dr John Matheson (the defendant's consultant neurosurgeon), Dr Michael Ryan (a Clinical Associate Professor of Surgery, Orthopaedics and Spinal Surgery, retained by Concrite), and Mr Rogerson's medico legal general surgeon Dr Neil Berry and to the results of a bone scan and MRI of Mr Rogerson's spine, the trial Judge said: "Mr Rogerson's fall did cause him an injury, and it aggravated what Dr Berry described as a pre-existing degenerate disc disease. But Mr Rogerson's health - and his working capacity - is greatly affected by the various unrelated conditions from which he suffers." 11 The trial Judge next referred to a report of Dr J M Ellis dated 12 April 2001. In this report Dr Ellis said that Mr Rogerson had signs of early Parkinson's disease with weakness of both hands, tremor and typical facies. He stated, as her Honour quoted, that Mr Rogerson had suffered a pathological grief reaction seven years previously following the death of his father, the breakdown of his marriage and the fear that he could have cancer. Ativan was prescribed and he had been taking that in very high dosage. This medication can aggravate depression. "He could benefit from more intense psychiatric treatment with further reduction of the Ativan. He is not currently fit for employment from the psychiatric point of view." The doctor went on to comment that he was unfit for his usual occupation because of his lumbar spinal injury. The cervical spine injury and his lumbar spinal injury were reasonably attributed to his fall at work on 13 August 1998. He had in addition depression, Ativan habituation and early Parkinson's disease.

Psychiatric evidence 12 On 26 October 2000 Mr Rogerson attended upon Concrite's medico legal psychiatrist, Dr Skinner, who reported the consumption of Ativan. The same consumption was reported to Dr McMurdo, Mr Rogerson's medico legal psychiatrist in August 2000. Dr McMurdo was told that Mr Rogerson was on "10 tablets for a long time". He had been taking a variable amount of Ativan when he attended upon Dr Egan in Mackay in late 1999 and early 2000. The trial Judge said: "There is a divergence of opinion between the psychiatrist(s), with Dr McMurdo diagnosing depression and Dr Skinner (for the defendant) finding Mr Rogerson to be Stoic and 'not suffering from any psychiatric illness or emotional disorder'. I prefer Dr McMurdo's opinion as to Mr Rogerson's psychological condition, but not Dr McMurdo's opinion on causation. Mr Rogerson was depressed long before the August 1998 accident, and addicted to a drug (Ativan) that compounded that problem. His personal life was been adversely affected, but not by reason of the August 1998 accident. I find no casual [sic causal] relationship between Mr Rogerson's psychological condition and his August 1998 accident. In my opinion, the August 1998 accident caused a short-term, acute injury, the majority of which resolve within a month. He suffered little discomfort thereafter, until driving for lengthy periods on his trip north aggravated the situation, some time in late November or early December 1999. I accept Dr Berry's opinion and find that the musculo-ligamentous injuries to Mr Rogerson's neck and back in August 1998 aggravated his pre-existing degenerative disc disease, and made a contribution to his present condition. But the accident was merely one of the contributing factors, and one that has since been overtaken by the (unrelated) progression of the pre-existing degenerative disc disease. Others are constitutional, and his lengthy driving on his trip north on [sic] 1999." 13 The following parts in this passage in the reasons for judgment raise difficulties: · The stated preference of the trial Judge for Dr McMurdo's opinion about Mr Rogerson's psychological condition but not on causation. · The finding of no causal relationship between Mr Rogerson's psychological condition and his August 1998 accident. · The acceptance of Dr Berry's opinion and the finding that the musculo-ligamentous injury to Mr Rogerson's neck and back in August 1998 aggravated his pre-existing degenerative disc disease, and made a contribution to his present condition. · The finding that the accident was "merely" one of the contributing factors and one that had since been overtaken by the (unrelated) progression of the pre-existing degenerative disc disease. 14 Dr Berry's opinion in his report of 30 October 2000 was that Mr Rogerson's fall "was a substantial contributing factor to his present condition". It seems there was no evidentiary basis for the conclusion that the accident as a contributing factor had "since been overtaken by the (unrelated) progression of the pre-existing degenerative disc disease". Certainly Mr Hislop QC, who appeared for Concrite, could not point to any.

Damages for non-economic and economic loss 15 Judge Gibb said that the proper assessment of damages to be awarded for non-economic loss for Mr Rogerson's injury, "….having regard to the requirement that I have regard to the severity as a percentage of a most extreme case requisite test under the Workers Compensation Act 1987 (NSW) is twenty-five per cent (25%)."

The amount so calculated of $57,087.50 exceeded that required to satisfy the two threshold requirements under the Act. In reaching this conclusion Judge Gibb did not mention "the various unrelated conditions from which he suffers" and his unfitness for employment "from the psychiatric point of view". 16 When she came to deal with economic loss, for the period after Mr Rogerson was off work in August 1998, the trial Judge said: "It is difficult to fix with any precision the date on which Mr Rogerson became disabled from work after his return at the end of August in 1998, when his general practitioner had certified him fit for work (with no qualification). He was fit for work when he left in March 1999. He sustained an acute episode at the end of 1999, but until then was driving a car towing a caravan in Queensland and the Northern Territory. He was able to drive back to Mackay within a short time, where he saw Dr Egan (among other doctors). Dr Egan's report dated July 2000 expressed no view upon Mr Rogerson's capacity for work. Dr Egan last reviewed Mr Rogerson in mid February 2000. By August 2000, Dr McMurdo considered Mr Rogerson to be unfit for work from a psychiatric point of view, but the psychiatric problems are not causally related to the accident. Dr Maxwell was silent on the point (in June 2000), as was Dr Loefler in May 2000. On 30 October 2000, Dr Berry (medico-legal specialist) considered Mr Rogerson to be unfit for work requiring heavy lifting, repetitive bending, prolonged crouching and stooping. Dr Berry concluded that August 1998 work injuries contributed to that incapacity. I find that as from 30 October 2000, Mr Rogerson has been incapacitated for work as a driver. He has some residual working capacity, but by reason of his age, education, skills and unrelated incapacities, that is limited. But the accident may well have been the last straw, and there is no reason to conclude that Mr Rogerson would have been unfit for work regardless of the accident. The defendant bears the onus in that respect: If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred. [Dixon CJ in Watts v Rake (1960) 108 CLR 158 at 160]. In part the restrictions are unrelated to the work accident. But the defendant's negligence wrought an injury none-the-less and as a result Mr Rogerson's limited working capacity was impaired." 17 These quoted paragraphs include internal inconsistencies. Her Honour said that by August 2000 Dr McMurdo, whose opinion as to Mr Rogerson's psychological condition she had earlier said she preferred, considered Mr Rogerson to be unfit for work from a psychiatric point of view but that the psychiatric problems were not causally related to the accident. Shortly thereafter the trial Judge said there was no reason to conclude that Mr Rogerson would have been unfit for work regardless of the accident.

Burden of proof 18 It seems that Judge Gibb proceeded on the basis that if Mr Rogerson's disabilities were the result of more than one contributing cause, Concrite had failed to exclude the operation of the accident as a contributing cause. In Purkess v Crittenden (1965) 114 CLR 164 the majority of the Court (Barwick CJ, Kitto and Taylor JJ) in a joint judgment said, by reference to Watts v Rake, at 167-8: "We do not regard that case as formulating the proposition that once a plaintiff has established a prima facie case that he has been incapacitated as a result of the injuries inflicted upon him by the defendant's negligence the burden of establishing that his incapacity is wholly or partially the result of, or that total or partial incapacity would, in any event, have resulted from, some pre-existing condition in the plaintiff passes to the defendant in the sense that, when the whole of the evidence in the case has been given, the onus of proof on this issue rests upon him. … We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence." 19 Judge Gibb referred only to Watts v Rake. She did not refer to Purkess v Crittenden and it may be that it was not brought to her attention. There was evidence from Dr McMurdo, a witness her Honour said she preferred, that by August 2000 Mr Rogerson was unfit for work from a psychiatric point of view. This was not a mere suggestion of the existence of a relationship between a condition, not causally related to the accident, and Mr Rogerson's earning capacity. It was evidence of that relationship and required the plaintiff to satisfy the Court of the extent that the injury caused by the August 1998 accident contributed to his unfitness for work. This question the trial Judge never addressed it seems because she thought that Concrite bore the onus and was required to exclude the operation of the accident as a contributory cause. 20 The consequence is that her Honour's finding about economic loss cannot stand.

Statutory modification of common law damages 21 Division 3 of the Workers Compensation Act 1987 (the Act) modified the amount of damages that might be awarded for non-economic and economic loss. Section 151G, as in force at the relevant time, provided, so far as presently material: " Damages for non-economic loss ….. (2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded. … (4) If the amount of non-economic loss is assessed to be $36,000 or less, no damages for non-economic loss are to be awarded." 22 Section 151H of the Act, as in force at the relevant time, provided, so far as presently material: "(1) No damages are to be awarded for economic loss unless the injured worker has received a serious injury or dies as a result of the injury. … (2A) A serious injury is, if received on or after the commencement of Schedule 2 (2) to the Workers Compensation (Benefits) Amendment Act 1991: … (b) an injury for which damages for non-economic loss of not less than $48,000 are to be awarded in accordance with the Division (whether or not compensation is payable under section 66)." 23 The adjustment of the amounts of benefits provided for by s80(1) of the Act applied relevantly to substitute $40,300 for $36,000 and $53,750 for $48,000; see ss151G(7) and 151H(4).

Non-economic loss 24 The award for non-economic loss of $57,087.50 exceeded the threshold. However in my opinion, the award cannot stand as it is unreasoned. Again the problem arises from unexplained inconsistencies in the trial Judge's judgment. Her Honour found that Mr Rogerson's health - and his working capacity - was greatly affected by the various unrelated conditions from which he suffered. These at least included the psychiatric condition and an Ativan addiction. Her Honour said that the accident was "merely" one of the factors contributing to his present condition. Against that background her Honour said no more than that in her view the proper assessment of damages to be awarded for non-economic loss for the plaintiff's injury, having regard to a most extreme case, was 25 per cent. It is not self-evident or otherwise evident how the other contributing factors were excluded or brought into account, if at all. It should be noted, as Mr Webb QC, who appeared for Mr Rogerson, pointed out, that when dealing with future economic loss the trial Judge reduced the calculated amount by 25 per cent for vicissitudes "having regard to the unrelated problems and Parkinson's disease".

Conclusion 25 Concrite asked this Court to re-assess the damages. Unfortunately I do not think that the findings of fact made by the trial Judge allow this to be done. A good part of the reasons for judgment was taken up with excerpts from medical reports without indication as to whether or not they were accepted. Indeed, Mr Webb argued that her Honour had done no more than recite what Dr McMurdo said about psychiatric illness and working capacity. In some of the reports her Honour emphasised sentences by underlining. We were asked to proceed on the basis that the passages underlined were findings. This is unsatisfactory and in any event does not overcome the problem. I am persuaded that Judge Gibb gave no sufficient reasons for her awards of damages for both non-economic and economic loss. On the face of the judgment there remained apparent and unresolved inconsistencies about the extent of the contribution of the fall in August 1998 to Mr Rogerson's health and physical condition at the time of trial. Arguably, if he was unfit for work because of a psychiatric condition unconnected with the accident, no damages for economic loss should have been awarded, apart from the amount of $1,152.10 awarded for the period Mr Rogerson was off work in August 1998. The deficiencies in the reasons for judgment infect not only the non-economic and economic loss awards but also the awards for domestic assistance and medical assistance.

Orders 26 In my opinion, the appeal should be upheld and the proceedings remitted to the District Court for a new trial limited to the question of damages. I propose the following orders: 1. Appeal allowed; 2. Set aside the verdict and judgment for the respondent given and entered by her Honour Judge Gibb on 26 November 2001; 3. Remit the proceedings to the District Court for a new trial limited to the question of damages; 4. Judgment for the appellant by way of restitution in the amount of $141,000 paid by the appellant to the respondent as a term of the stay of execution of the judgment together with interest thereon from the date of payment to the date of repayment; 5. The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified; 6. The costs of the first trial be in the discretion of the Judge who hears the new trial. 27 YOUNG CJ in EQ: I agree with Sheller JA. **********

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.

CITATION : CONCRITE PTY LTD v ROGERSON [2002] NSWCA 310 FILE NUMBER(S) : CA 40978/01 HEARING DATE(S) : 10 September 2002 JUDGMENT DATE : 18 September 2002

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