Crystal Wall Pty Limited v Pham

Workers Compensation Act 1987 LEGISLATION CITED: Workers Compensation Legislation Amendment Act 2001 Suitors' Fund Act 1951

Dell v Dalton (1991) 23 NSWLR 528 Doonan v Beacham [1953] HCA 38; (1953) 87 CLR 346 Ellis v Rantzos [2005] NSWCA 266 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Henry Walker Eltin Contracting Pty Ltd v Hrstic [2005] NSWCA 253 CASES CITED: House v R [1936] HCA 40; (1936) 55 CLR 499 Marsland v Andjelic (1993) 31 NSWLR 162 Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99 Rabay v Bristow [2005] NSWCA 199 Southgate v Waterford (1990) 21 NSWLR 427 Valeriani v Gibson [1963] NSWR 1430

Crystal Wall Pty Limited (Appellant) PARTIES: Van Chanh Pham (Respondent)

M J Neil QC/ R B Page (Appellant) COUNSEL: B R Ferrari (Respondent)

Moroney-Betts (Appellant) SOLICITORS: John D Hancock (Respondent)

LOWER COURT JUDICIAL OFFICER: Acting Judge Murray QC

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40211/05 DC 11645/01

HANDLEY JA SANTOW JA McCOLL JA

Thursday, 15 December 2005 CRYSTAL WALL PTY LIMITED v Van Chanh PHAM Judgment

1 HANDLEY JA: I agree with McColl JA. 2 SANTOW JA: I agree with McColl JA both as to liability and, regrettably, as to damages. Her judgment explains with clarity why those consequences must follow. I would wish however to add this. 3 This appeal illustrates an anomaly in the changes introduced by the modified common law regime in Part 5 of the Workers Compensation Act 1987 ("the Act"). It is one which leads to harsh and probably unanticipated results in cases like this. 4 The Act here renders a 10% difference (between 20% of a most extreme case and 30%) the cause of an enormous reduction in damages from $233,391 to $23,000. It does so to a plaintiff who, by reason of lack of English and a bad stutter is now essentially unemployable. Such a person would be most unlikely ever to find light duties given those disabilities. And heavy duties are now impossible, by reason of his work injury. 5 Thus, though suffering a significant back injury he cannot recover at all for economic loss from that injury; that is the effect of the modified regime. There is no pro rata reduction of the $233,391; it is all or nothing, once he goes from 30% to 20% of a most extreme case. And he can get only $23,000 for non-economic loss. 6 One may ask whether these anomalous and harsh consequences were fully appreciated when these modifications to the common law regime were introduced. 7 It would be relatively easy, and considerably fairer, for the legislation to allow at least a reasonable modicum for economic loss for those plaintiffs like this one whose economic loss, properly calculated, is of such significant order. On the principle that one takes one's victim as one finds him, this employee's lack of English and stutter renders the economic consequences of his work injury far more damaging than in the usual case. 8 McCOLL JA: Van Chanh Pham, the respondent, was injured on 15 August 2000 in the course of his employment with the appellant. He brought proceedings to recover damages arising out of the appellant's alleged negligence. The primary judge, his Honour Acting Judge Murray QC, found that the appellant had breached its duty of care to the respondent. He awarded damages of $233,931. 9 The appellant challenges the primary judge's finding that it breached its duty of care and also asserts that the damages awarded were excessive.

Statement of the case 10 The following facts were, according to the primary judge, agreed or otherwise proven. I do not understand that the appellant challenges any of them:

(1) the plaintiff was employed by the defendant as a shopfitter;

(2) on 15 August 2000 he was engaged with four other workers in replacing glass doors and fixtures to the Westpac Bank at Engadine;

(3) the process required the workers at some point to unload glass panels from the back of a truck and transport them into the bank;

(4) the panels were then carried manually, or with the use of a ski, a distance of about ten metres, but at some point had to be manually lifted;

(5) devices known as "suckers" were available for lifting; they were a type of lever fixed by suction to the glass, with a handle enabling both the adjustment for height and location on the glass and which could then be utilised for the lifting process. They were such that only one hand could be used for the lift, the other hand used as a steadier;

(6) the panels, as delivered, weighed, according to the measure of density used for 12mm toughened glass (2.5 kilograms per square metre or 2.73 kilograms per square metre) between 67 kilograms and 80.1 kilograms for the 2.5 measurement, and 72.6 kilograms to 87.31 kilograms for the 2.73 measurement;

(7) both experts agreed that a reasonable standard for a one person lift varied between 16 to 20 kilos, although both experts agreed that figures in excess of that could be comfortably lifted;

(8) the plaintiff was in the company of a person named Tatui who, together with the plaintiff, carried at least some of the glass panels;

(9) at some point the plaintiff, if accepted, was exposed to lifting between approximately 35 to 40 kilograms. 11 The proceedings were commenced by Statement of Claim filed on 16 November 2001. It asserted that on or about 15 August 2000 during the course of his employment, it was necessary for the respondent "to lift heavy glass door and wall panels and motors in connection with the control of an automatic door" and that "in the course of lifting those objects" he was injured. 12 The respondent, who was born in Vietnam and came to Australia when he was seventeen, gave his evidence through an interpreter. When asked about moving the first of several panels of glass into the Bank he said that when he started to lift and take the load of the glass he "felt sharp pain on the left half back of mine". When asked why he did not stop work at that stage, the respondent said: "… I was scared that the job may not be done on time, and, secondly, I was also afraid that [his working companion] could be blamed for slow work, for the work being done slowly." 13 The respondent continued with his duties and, in all, with the assistance of one other, carried five panels of glass into the Bank. When asked how his back was while he was carrying the panels he said: "I felt even more sharp pain and I perspired even more." 14 In cross-examination, it was put to the respondent that he had not been injured when he was carrying the first panel of glass on 15 August 2000. He denied that proposition. It was next put to him that any injury he suffered occurred later during the day. Again, he denied that proposition. 15 The primary judge said the difficulty in the case was accepting the respondent's version of how he suffered his injury. 16 His Honour referred to the respondent's evidence that he had suffered a sharp pain in his back while moving the first sheet of glass. He noted the appellant's case was that, while it did not dispute the respondent suffered some injury on the day in question, he was not injured in the manner he described. According to his Honour the matter was complicated by histories the respondent had given to various medical practitioners which demonstrated some degree of inconsistency with his evidence at trial. It is not necessary to set out those histories in detail. Suffice to say the medical practitioners recorded versions of the incident in which the respondent said he had experienced the pain in his back which were somewhat at odds with his evidence. 17 It was common to virtually all the histories that the pain in the respondent's back first occurred on 15 August 2000 while he was lifting heavy glass. However some recorded that he had experienced low back pain when carrying the last of several panels of glass, another recorded that he had experienced pain in the back after he had installed "four of these heavy glass doors", while another suggested that he had experienced low back pain some fifteen or so minutes after fitting a panel of glass and a 100 kilogram motor to a wall. 18 Apart from one medical practitioner, Dr Ellis (who had recorded a history that the respondent experienced low back pain during the installation of the last glass door), none of the medical practitioners whose reports were tendered were called. The primary judge noted that in such circumstances there was no investigation as to how the various histories were given. He inferred that, in most cases, it had been given with the aid of an interpreter but it was unknown how the interpreter conveyed the information the respondent had given. The primary judge said that he had felt "uneasy about literal acceptance of what is recorded". 19 The primary judge recorded other matters, which he also described as inconsistencies, which concerned him about the respondent's evidence. First, the respondent had given some evidence concerning a motor being loaded onto and manhandled off a truck. The primary judge said he was satisfied that had not happened. Secondly, the respondent gave evidence that the replacement glass for the day's work was delivered by another truck to the work site on the day in question. Two of the appellant's employees contradicted that evidence saying, in essence, that it was the practice for the glass to be delivered to the appellant's factory the day before the job in question. The primary judge accepted their evidence. The final matter upon which the appellant apparently relied to attack the respondent's version was the fact that he had not complained about his injury during the course of the day, even though he said when it occurred he was in quite severe pain and, although he continued lifting glass, had had to sit down and rest during the day. The primary judge noted however, that the respondent had complained at the end of the day that he had hurt his back although the leading hand, Mr Williams, had dismissed that complaint as one "that often occurs after a heavy day's work". 20 Mr Ferrari, who appeared for the respondent, submitted below that the inconsistencies troubling his Honour could be explained on the basis that the respondent was unsophisticated and had both a poor command of English, leading him to have to communicate through an interpreter, as well as a speech impediment - a marked stutter. He argued that one should not be too critical of the respondent who would not be concerned to be absolutely precise when giving the various histories to doctors, whereas, in court, it was necessary for him to focus on the mechanism of injury. 21 After referring to these matters and noting that the inconsistencies were "quite marked" the primary judge said:

"What is not in dispute is that the plaintiff and others were engaged this day in moving heavy panels of glass. As I have said, it is agreed that, depending on the view one takes as to the density of the glass, they weighed no less than 67 kilos and possibly up to 87, and there were at least 8, possibly 10 to be manoeuvred. I think that the plaintiff did sustain injury, if not precisely in the manner he describes in evidence, but in lifting a pane of glass which was beyond the recognised limits for safe lifting." 22 His Honour referred to the expert evidence concerning standards for accepted lifting weights. He noted the lift in which the respondent was engaged was a "one-handed lift" and that the respondent had had to carry the glass over a short distance of rough or uneven ground. He found it was unreasonable for the appellant to have exposed the respondent to a lift of the order of 33 or in excess of 40 kilograms. 23 He held the appellant had breached its duty of care in requiring the respondent "to undertake this lift".

Submissions 24 The appellant's essential complaint on liability is that, having regard to the respondent's evidence that he had been injured when lifting the first panel of glass, it was not open to the primary judge to conclude he had been injured when lifting another panel of glass. 25 Mr Neil pursued a difficult appellate course. He accepted that it was open to his Honour to conclude the respondent was genuinely mistaken about having been injured on the first lift and, if he was credible, and in circumstances where there were four or five similar lifts, to find he was injured in one of the other lifts. He submitted, however, that once the respondent's evidence that he was injured in the first lift was not accepted, in circumstances where the respondent was involved in other "non-tortious injury lifts" on the day in question, it was not open to his Honour to find that lifting one of the other panels of glass caused the respondent's injury. This submission effectively challenged the primary judge's ultimate acceptance of the respondent as a credible, albeit perhaps confused, witness. 26 Mr Ferrari submitted that the respondent's essential account was that he was injured when lifting a panel of glass and that the evidence disclosed the panels of glass were too heavy in the circumstances. He argued that it was open to the primary judge to find lifting a panel of glass caused the respondent's injury, even if he rejected his account that the injury was suffered on the first lift.

Consideration 27 It was open to the primary judge to find for the respondent if, on the whole of the evidence, his Honour could reasonably infer that the accident was due to the appellant's negligence. In Doonan v Beacham [1953] HCA 38; (1953) 87 CLR 346 the plaintiff's evidence failed to establish that the accident in which she was injured was due to any of the causes particularised. The defendant called no evidence, and submitted that there was no case to go to the jury. The trial judge directed the jury to find for the defendant. Williams ACJ, with whose reasons all other members of the High Court agreed, said (at 351): "In my opinion the jury are entitled to consider the evidence as a whole and if, on the whole of the evidence, the jury can reasonably infer that the accident was due to the negligence of the defendant, then they can find for the plaintiff. When I say the whole of the evidence I mean the whole of the evidence which is admissible within the scope of the particulars." 28 Dixon CJ, Webb, Fullagar and Taylor JJ developed this proposition in Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99, explaining (at 110): "In an action conveniently described as a negligence action the particular duty, a breach of which is relied upon to establish negligence on the part of the defendant, may be alleged to have been transgressed in a variety of ways and if the plaintiff particularises the transgression or transgressions relied upon the defendant may, subject to the discretion of the court, hold him to the issue or issues of fact so raised. But the action is still for a breach of the duty specified and the defendant will not defeat the plaintiff's claim either by establishing that the plaintiff's injuries resulted from or were consistent with some other breach of the same duty. If the facts, as proved in the case, lead to the conclusion that the injuries resulted either from one or the other the plaintiff will succeed. This view is implicit in the decision in Doonan v Beacham …" 29 Doonan v Beacham and Mummery v Irvings Pty Ltd were applied in Valeriani v Gibson [1963] NSWR 1430 (at 1435) where Herron ACJ, who delivered the judgment of the Full Court said "[e]ven where particulars have been supplied, the issue of negligence involves a consideration of the evidence as a whole." Accordingly the Full Court held the trial judge erred in ruling the plaintiff could not rely upon an issue of excessive speed, of which there was evidence in both the plaintiff and the defendant's cases, but on which the plaintiff's counsel had not opened to the jury. 30 In my view, it was open to the primary judge after evaluating all the evidence, to conclude that the respondent had established that he was injured on 15 August 2000 when he lifted a panel of glass. A case that the respondent was injured lifting a panel of glass other than the first panel in circumstances amounting to a breach of duty was within the respondent's pleaded case. There was evidence in the form of the various accounts to the doctors that the respondent's injury was suffered lifting a panel of glass, albeit perhaps not the first one. 31 Although his Honour did not specifically refer to it, it is relevant to note in this context that according to the Employer's Report of Injury Form dated 24 August 2000, the respondent reported that he suffered injury at the Westpac Bank site on 15 August 2000 at about 3:00 pm and that the injury occurred when he was "lifting glass on site". He also consulted Dr Nguyen on 16 August 2000 and complained he had experienced lower back pain "after lifting a number of heavy glass panels". 32 It is apparent that his Honour accepted Mr Ferrari's submission concerning the difficulties of communication from which the respondent suffered which suggested a credible explanation for the apparent inconsistencies which did not detract from the respondent's credit. His Honour accepted the respondent was "a basically honest individual" and while that opinion was expressed in the context of assessing damages was, no doubt, the view he formed of him generally.

33 It is necessary to consider whether the appellant's 'non-tortious lifts' case militated against the weight of the evidence concerning the panels of glass, depending as it did on acceptance of the respondent's credibility in a manner which would warrant appellate intervention: cf Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. 34 The appellant handed up a schedule of evidence to support its "non-tortious lifts" argument. It is not apparent that this argument was put below. The primary judge did not refer to it. However Mr Ferrari did not complain and I assume it was put below but rejected. 35 The schedule identified passages in the respondent's cross-examination where he was asked about other lifting on 15 August 2000. The respondent accepted he lifted objects, other than panels of glass, on a number of occasions. With two exceptions, which I will shortly address, the cross-examiner did not put to the respondent that he had suffered injury or pain in the course of those other lifts. 36 The first exception is that the respondent accepted that his back was very painful during a task requiring a motor unit to be supported by four workers while it was being raised using a device called a "Jenny lifter". This task was undertaken after lunch - well after the respondent had lifted the first panel of glass. 37 The other exception was that the respondent accepted he suffered pain in the left side of his neck and shoulder while he was lifting an electric motor which he estimated weighed over 100 kilograms. This did not relate to the back pain the subject of the respondent's claim. 38 In my view it was open to the primary judge to reject the appellant's case that the respondent suffered injury on some other occasion, particularly in the absence of any cross-examination of the respondent going to that point. The "non-tortious lifts" evidence did not raise an evidential issue for the primary judge's consideration that the respondent may have suffered injury on 15 August other than in the course of lifting an overweight panel of glass. 39 The appellant's written submissions argued that even if it was open to the primary judge to conclude that the respondent sustained his injuries while engaged in lifting a panel of glass other than the first one, it was nevertheless not open to his Honour to find that that [later] lift involved a breach of duty. It should be noted, in this respect, that the respondent gave evidence that he and his co-worker carried in five panels of glass in the same manner as the first. Further, as I understood Mr Neil's oral submissions, he conceded that all the glass the respondent was required to lift on the day in question was overweight. In such circumstances, it was open to the primary judge, even if he concluded that the respondent was not injured when lifting the first panel of glass but, rather, when lifting another panel of glass to conclude that the appellant had breached its duty of care. 40 The appellant's challenge to the primary judge's conclusion on liability should be rejected.

Damages 41 The medical evidence was at one that as a result of his accident, the respondent had suffered muscular ligamentous strain and aggravation of pre-existing degenerative changes in his low back. The parties parted company, however, on the issue of whether the symptoms from which he was suffering at the time of trial were the effect of the injury or were referable to his pre-existing condition. 42 The primary judge rejected the opinions expressed by the appellant's medical experts that the sequelae of the accident had ceased. He did accept, however, the opinion of Dr Wilding, who was qualified by the appellant, that: "Mr Pham is a slightly built man and he is unfit for his former duties at work as a labourer which involve considerable physical activity. His degenerative changes in his spine and heavy physical work would tend to aggravate the underlying degenerative conditions. In my opinion he is fit for light duties which do not involve prolonged stooping or bending or heavy lifting." 43 The primary judge also expressed the opinion that the respondent was "a basically honest individual who did not embellish his complaints in a dramatic fashion". His Honour accepted that the respondent's complaints "moderate as they are, represent the consequence of this injury". He found, however, that the respondent would be fit for "many tasks in the future" and he expected that he would gain employment "in the not too distant future". 44 Damages had to be assessed under the modified common law provisions of the Workers Compensation Act 1987 (the "Act") as they existed prior to the commencement on 27 November 2001 of the Workers Compensation Legislation Amendment Act 2001. The primary judge concluded that in terms of non-economic loss (s 151G(2)) the respondent's disability represented 30% of a most extreme case which translated into an award of $73,275. 45 He accepted that the respondent had been incapacitated for the whole of the period from the time of injury until trial and allowed him $118,000 (236 weeks x $500 per week) in this respect. 46 In terms of future economic loss his Honour expressed the view that the respondent would obtain some light work within the next two years but that his injuries would preclude him from engaging in heavy labouring work. He assessed his future loss of earning capacity at $150 a week. Taking into account other consequential sums (Fox v Wood, lost superannuation, out of pocket expenses) and after deducting amounts paid in respect of workers compensation, he entered a verdict and judgment in the respondent's favour of $233,931. 47 The appellant's principal submission on damages was that the primary judge's assessment that the respondent's injury represented 30% of a most extreme case was excessive. It also challenged the assessment of the respondent's economic loss, principally on the basis that his Honour had failed to take into account the fact that the respondent was also suffering from physical limitations due to an injury to his neck, shoulder and arm also suffered on 15 August 2000, but which was not the subject of his claim. 48 The first question which should be addressed is the appellant's challenge to the non-economic loss head of damages. The appellant submitted that the primary judge ought to have assessed the respondent's injuries as being between 15% and 20% of a most extreme case. If either of these submissions is successful then, as the appellant's schedule of damages (whose accuracy was accepted by the respondent) revealed, the respondent would either recover no damages, (if assessed at 15%) or $23,000 for non-economic loss (if assessed at 20%). On the 20% scenario he would not recover any amount for economic loss as the amount of $23,000 is less than $57,500, the indexed amount provided by s 151H(2A)(b) of the Act. 49 The exercise in which the primary judge was involved in determining non-economic loss is neither scientific nor normative. While it is not wholly at large, it involves an exercise of discretion with which the Court will rarely intervene: Southgate v Waterford (1990) 21 NSWLR 427 at 440. Having regard to the nature of the exercise, a finding that a particular case is or is not "a most extreme case" has been said to be not "readily … susceptible of appellate review" as "its resolution … involve[s] questions of fact and degree, and matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment": Dell v Dalton (1991) 23 NSWLR 528 at 533 per Handley JA (with whom Kirby P and Priestley JA agreed); Rabay v Bristow [2005] NSWCA 199 at [62] - [67]. Unless it can be demonstrated that the trial judge has erred in the application of principle, in order to attract appellate review it will be necessary to show that the conclusion reached by the primary judge was manifestly erroneous: Ellis v Rantzos (t/as Rantzos Hairdressing) [2005] NSWCA 266 at [43] per Basten JA (with whom Handley and Santow JJA agreed). 50 The first step in his Honour's exercise of his discretion was to consider and make findings on those elements in the evidence relevant to non-economic loss: Southgate v Waterford (at 440). It is in this context that his Honour's finding that the respondent's moderate complaints represented the consequence of his injury is significant as, too, are his findings that the respondent would be fit for many tasks in the future and would gain employment in the not too distant future. 51 One of the difficulties with the primary judge's reasons is that his Honour did not identify the moderate complaints made by the respondent which he accepted were a sequelae of his injury. At best, it might be said that the moderate complaints to which he referred were those represented by Dr Wilding's findings which his Honour accepted. 52 Mr Ferrari submitted that it was necessary to bear in mind that the exercise in which the primary judge was engaged was of determining the percentage of "a most extreme case" not "the most extreme case" represented by the respondent's injuries: Southgate v Waterford (at 440). He drew attention, again, to the fact that the respondent's physical limitations resulting from the accident had to be understood in the context of a person who did not speak much English, who came from a restricted background and education, who had a speech impediment (stuttering) which the primary judge described as "marked" and who was going to find it difficult to do anything other than the physical work in which he had been engaged. 53 It must be acknowledged that the exercise in which a primary judge is engaged in determining non-economic loss is "insusceptible to entirely logical exposition [and] … rests upon the judge's finding and his or her reaction to those findings, drawing upon the judge's general experience" (Southgate v Waterford (at 442)). I accept that, too, that the meaning of "a most extreme case" as determined in Dell v Dalton is that that phrase refers to "a category of cases rather than to a case at the apex of the graduation of injuries": Marsland v Andjelic (1993) 31 NSWLR 162 at 183 per Mahoney JA; see also Henry Walker Eltin Contracting Pty Ltd v Hrstic [2005] NSWCA 253 at [37] per Basten JA (with whom Hodgson JA and Burchett AJA agreed). 54 I am unable, however, to reconcile his Honour's conclusion that the respondent's complaints were "moderate" with his assessment of the respondent as 30% of a most extreme case. If one accepts that a most extreme case would, as Mr Neil submitted, represent somebody with severe quadriplegia (Southgate v Waterford (at 440)) or, for example, total blindness combined with loss of limbs, it is difficult to discern a reasonable relationship between injuries of that nature and 30% thereof being accorded to a person with muscular ligamentous strain and aggravation of pre-existing degenerative low back changes with an ability to return to work, albeit light. It appears to me that his Honour's assessment of 30% is so unreasonable that it warrants appellate intervention: see House v R [1936] HCA 40; (1936) 55 CLR 449 at 505. 55 In my view, the appropriate percentage of a most extreme case represented by the respondent's injuries is 20%. On this basis the respondent is entitled to $23,000 for non-economic loss and to no other damages. 56 The appellant has been unsuccessful on the issue of liability, but has succeeded on the issue of damages. The costs order should reflect that outcome. There should be no interference with the District Court order that the appellant pay the respondent's costs of the trial.

(2) Judgment in favour of the respondent insofar as it ordered the appellant to pay the respondent $233,391.00 set aside and in lieu thereof order the appellant to pay the respondent $23,000.00.

(3) Respondent to pay 50% of the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if qualified.

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