Officeworks Ltd v Christopher

This Court's powers on an appeal by way of rehearing

1. It is as well to commence with the basis on which this Court proceeds in such a case. Contrary to one submission made orally, the Court does not proceed in such a case under s 107 of the Supreme Court Act 1970 (NSW), which permits this Court to reassess the amount of a judgment. That section in its current form only applies where there has been a jury verdict (which reflects the class of case excluded from s 75A by reason of s 75A(2)(c) and (d)). Formerly, s 107 applied to judgments following a trial in the District Court by a judge sitting without a jury: see Supreme Court Act s 105(b) as originally enacted. What was said in GIO of NSW v Evans (1990) 21 NSWLR 564 is not applicable to the different regime which now prevails, although little if anything turns on that for present purposes.
2. The appeal to this Court is by way of rehearing: Supreme Court Act, s 75A(5). This Court has power, under s 75A(10), to make all findings necessary to sustain the order that ought to have been given or made at first instance. That power should be exercised where possible in order to avoid the necessity for a retrial, in accordance with Uniform Civil Procedure Rules, r 51.53 as considered in Nobarani v Mariconte [2018] HCA 36; 92 ALJR 806 at [36]-[38].
3. Ms Christopher is now 80. There is an overwhelming case, contrary to the submissions made on her behalf, for this Court to enable her to achieve finality in proceedings which have now been pending for almost four years from an incident which occurred almost seven years ago. As will be seen below, the factual matters left unresolved by the primary judge do not require a retrial.

The circumstances of the second injury to Ms Christopher's left shoulder

1. Unfortunately, Ms Christopher had fractured her left shoulder while holidaying in Bali on 19 July 2012. Dr Christine Castle had performed an operation on the left shoulder on 25 July 2012, inserting a left intramedullary humeral nail. This was described in the operation report as being "inserted with two proximal and two distal locking screws".
2. Ms Christopher had seen Dr Castle on the morning of 2 August 2012, and a post-operation X-ray had been taken. Dr Castle reported to Ms Christopher's referring practitioner, by letter dated 2 August 2012, as follows: "She is now nine days post intramedullary humeral nail for proximal humeral fracture. The wounds were healing well and the staples were removed. Plain x-ray showed satisfactory fracture alignment and no complications with the fixation. She is to use the arm as tolerated and I will review her in four weeks with a repeat x-ray. I will keep you informed."
3. Ms Christopher entered the Officeworks premises later on the same day, 2 August 2012. It was not in dispute that while in the store, in the vicinity of a ladder on which a store employee, Mr Westgarth, was standing, something fell on her from a height. Her evidence was that when she was struck, she fell onto the ground. Her former husband was also in the store, but he did not witness the events. Mr Westgarth said that "the lady jolted but she didn't fall down". In cross-examination, he said he was not able to remember that "the lady ended up on the ground, laying on the ground". There was a (seemingly) contemporaneous incident report prepared by store staff but Mr Watson SC, who appeared for Officeworks in this Court but not at first instance, candidly eschewed that his client could obtain any benefit from it, for reasons which need not be elaborated. Mr Watson went so far as to acknowledge that it would be open for this Court to find that Ms Christopher had fallen to the ground.
4. Either Ms Christopher fell to the ground or, after she was hit by a falling object, she lost her footing but her fall was cushioned by some person coming to her aid. The primary judge identified both possibilities, but declined to make a finding. The significance was that the central issue in the litigation was the extent to which Ms Christopher, who was already recovering from serious injury to her shoulder, sustained further injury caused by the negligence of Officeworks. Different witnesses expressed different views about causation depending upon the mechanism by which Ms Christopher came to be injured.
5. The appeal proceeded on the basis that if Ms Christopher had fallen to the ground after being struck from above, there was a greater prospect of injury being caused to her already injured shoulder than was the case had she merely been hit from above. That assumption seems sound as a matter of common sense; one impact is less likely to cause damage than two.
6. The finding which is more favourable to Ms Christopher is that she fell to the ground. It reflects her own evidence. I shall proceed on that basis. That finding carries with it the possibility that Ms Christopher's fall rather than the direct impact of the object upon her caused damage to her shoulder.
7. A smaller issue raised in this Court on her behalf was whether Ms Christopher had been struck by a box dropped by Mr Westgarth or by some of the items in the box. The identity of the items was not the subject of precise findings. Further, the reasons of the primary judge were internally inconsistent about whether Mr Christopher was struck by a box or the items falling from the box. His Honour concluded his oral reasons (as corrected) by unequivocal findings that "I do find that the plaintiff was hit by the box and that following being hit by the box she did collapse" and that the box had some weight, by which his Honour meant to "suggest that it would have been greater than 5 kgs".
8. Although the focus was on the weight of the object which hit Ms Christopher, what actually matters is its shape and its momentum at the point of impact. There was some non-specific evidence of the "great height of the top shelves" and the "very high ladders" at the Officeworks premises, although it is unclear what precisely that meant. There was no evidence of the height from which the object had fallen which would permit an assessment of its momentum. On the view I take, nothing turns on this either.
9. For those reasons, there is no occasion for a retrial in order to make the findings of fact which were left undetermined by the primary judge.

Treatment received by Ms Christopher following the Officeworks incident

1. Ms Christopher testified that she was in very considerable pain following the incident at Officeworks. She tried to see her general practitioner but was unable to do so until the following Monday. Her doctor's notes record: "Pain ++ Left shoulder post op Also man in Officeworks dropped heavy object on to her shoulder, almost dropped her to the ground Also return of left sided chest / rib pain Aggravated by coughing Has had to take extra painkillers Needs help at home Examination: old bruising from surgery no new bruising apparent slow restricted painful movements as before"
2. In addition to panadeine forte, Ms Christopher was prescribed endone. Her consultations with Dr Castle in the intervening 15 weeks record that she continued to be in pain. I shall return to the X-rays and CT scan which were later obtained.
3. It appears that fairly shortly after her operation, and no later than September 2012, Ms Christopher was having physiotherapy every day for her shoulder.
4. Dr Castle performed a second operation on Ms Christopher on 11 December 2012. The evidence established that there were two aspects to that operation. 1. The first was that Dr Castle observed that her "rotator cuff" had been damaged, and repaired it. The rotator cuff describes the muscles and tendons near the shoulder joint. 2. Secondly, Dr Castle performed a left shoulder hemiarthroplasty. This involved removing the left proximal humeral intermedullary nail, and then what was described as removing "the humeral head at the proximal end of the humerus and inserts artificial head".
5. Ultimately, Ms Christopher underwent a shoulder replacement operation in August 2014. The intervening 20 months may be passed over, because there was clear evidence called by both sides that the failure of the hemiarthroplasty was not due to the Officeworks injury, and Ms Christopher accepted during the hearing in this Court she was not entitled to compensation for injury to which the third operation was a response. In accordance with this Court's directions, her counsel supplied a schedule of past out of pocket expenses which omitted any expenses associated with the third operation.

Reasons of the primary judge

1. The primary judge found that both aspects of the second operation, as well as the third operation, were caused by the incident on 2 August 2012. No attempt was made to sustain the findings in relation to the third operation. Officeworks attacked the absence of reasoning as to whether any aspect of the second operation was caused by the incident on 2 August 2012, and in particular the failure to have regard to ss 5D and 5E of the Civil Liability Act 2002 (NSW), notwithstanding reference to those provisions in its written submissions at trial.
2. The case advanced by Ms Christopher had been that the 2 August 2012 incident had caused (a) the rotator cuff to be damaged and (b) the intramedullary nail to loosen thereby leading to the need for its removal and the hemiarthroplasty. That conclusion was expressed by Dr Faithfull, whose opinion was preferred by the primary judge. However, as Ms Christopher's submissions with respect correctly observed: "No reasoning process was set out in relation to the actual evidence given by Dr Faithfull. A similar situation applies in relation to whether or not there was a tear in the rotator cuff."
3. The judgment entered by the primary judge also included damages based upon the third operation, which Ms Christopher conceded she was not entitled to. The judgment as entered comprised four components: 1. non-economic loss $107,000 based upon (a superseded) quantification of 29% of a most extreme case pursuant to s 16 of the Civil Liability Act; 2. past out of pocket expenditure of $71,777.40; 3. future medical expenses of $3,000, and 4. gratuitous domestic assistance $33,426 pursuant to s 15 of the Civil Liability Act.

Consideration - causation

1. It was necessary for Ms Christopher to establish factual causation that any harm to her left shoulder would not have occurred but for the Officeworks incident: s 5D(1)(a); Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [16]. (No reliance was sought to be placed upon s 5D(2) at trial or in this Court.) At all times, the onus lay with Ms Christopher of proving any fact relevant to the issue of causation: s 5E.
2. The first issue is whether Ms Christopher has discharged the onus on her of establishing that any damage was caused to her left shoulder by the incident at Officeworks. Principally, this involved considering the evidence bearing upon what caused (a) the need to repair the rotator cuff and (b) the need to perform the hemiarthroplasty. More evidence bore upon the latter than the former, because the nail, unlike the soft tissue comprising the rotator cuff, was visible on X-rays.
3. The X-rays taken on 2 August (immediately before the Officeworks incident) and afterwards on 21 August 2012 were not themselves in evidence. The report of the radiologist following the latter X-ray was in evidence. It stated: "There is a fracture of the surgical neck of the humerus which has been internally fixed by an intramedullary rod and screws in good position. The fracture line is still clearly visible and no bone union is seen. The fracture is mildly comminuted with some linear fragments lateral to the fracture site. There is a degree of periosteal new bone formation laterally."
4. A further X-ray was taken on 25 September 2012. The same radiologist reported as follows: "A proximal humeral fracture has been internally fixed in reasonably good position. The position has not changed since the previous study performed by us on August 21. There is evidence of progress towards bone union with consolidation of periosteal new bone formation. The fracture line however is still clearly visible. Two small loose bodies are seen superior to the humeral head, probably within the shoulder joint."
5. On 16 November 2012, the same radiologist conducted a computed tomography (CT) scan of Ms Christopher's left shoulder. His report to Dr Castle was as follows: "Thank you for referring Ms Christopher with pain posteriorly. Internal fixation of a fracture of the humerus. No obvious cause for the pain on plain x-ray. CT LEFT SHOULDER Technique: Multislice spiral scanning of the shoulder was performed with multiplanar reconstructions. Findings: There is a comminuted fracture of the proximal humerus which has been internally fixed with a medullary rod and screws. There is considerable residual deformity with some rotation of the humeral head with respect to the shaft and considerable medial displacement of the humeral shaft compared to the humeral head. This results in the upper medial cortex of the humerus protruding into the inferior aspect of the glenohumeral joint. In addition, there is a posterior fragment of the humeral head which is displaced medially with respect to the remainder of the humeral head and this protrudes towards the posterior aspect of the glenoid. It is likely to restrict external rotation of the humerus. There are several small bony fragments around the joint as well. Conclusion: Residual deformity at the fracture site with protruding fracture fragments extending to the posterior and inferior aspects of the glenohumeral joint which is likely to significantly restrict motion and this is likely to be the cause of the current symptoms."
6. Evidently that informed the decision to proceed with the hemiarthroplasty.
7. Dr Castle gave an opinion, in May 2016, which was more favourable to Ms Christopher on the question of causation than that in the radiologist's report: "She had an x-ray taken on 2 August just prior to being hit by the box in office works. She states that prior to this she had minimal pain in her shoulder and had considerable pain afterwards. The next x-ray was taken on 21 August. There is a slight difference in the x-rays with evidence of loosening of the proximal locking screws with a small sclerotic line developing around them in the head of the humerus. The second screw may have backed out by one screw thread. The comminution is difficult to discern if it has increased as there is also new callus formation. There has been a change between the x-rays of 2 August on 21 August accompanied by increasing pain which temporarily was related to the box hitting her."
8. Dr Castle went on to express two possible causes of the backing out of the screw: "The box hitting her may have had an impact on her shoulder condition and symptomatically it appears to be the case. However, proximal humeral fractures are known for loosening and backing out of the fixation and this is a recognised complication of proximal humeral intermedullary nailing."
9. It will be seen that, unlike the radiologist, Dr Castle identified some small change in the position of the screw. That may reflect an altered focus of attention, three years after the event and after litigation had commenced. Unlike the radiologist, she proffered the view that the loosening of the screw had been a possible cause of Ms Christopher's pain. However, her evidence was equivocal on the question of causation.
10. It was accepted that Dr Castle was unavailable to give evidence at the hearing. She was not asked about the possibility of the screw being loosened in the event that Ms Christopher had fallen to the ground.
11. Ms Christopher was referred to Dr Sonnabend in July 2014. He gave an opinion at the time: "Looking back at Christina's history, I do not think her current problem can be blamed on a box falling onto her shoulder."
12. Dr Faithfull was the principal expert witness called by Ms Christopher. He produced a report dated 10 September 2015. That report attributed the need for the second operation as "due to loss of rotator cuff and increasing pain". His report placed no weight upon any loosening of the screw. That may be for the good reason that, at that time (prior to Dr Castle's report) he did not himself have the X-rays, but only the radiologist's reports, which provide no foundation for any movement of the screw causing the need for the second operation.
13. However, Dr Faithfull made significant concessions in cross-examination. Dr Faithfull accepted in cross-examination that the hemiarthroplasty had nothing to do with the damaged rotator cuff, and was not caused by the incident on 2 August 2012: "Q. She also undertook a left shoulder hemiarthroplasty? A. Correct. Q. Can you tell the Court what that operation, what that means, in brief terms? A. She's removed the humeral head at the proximal end of the humerus and inserts an artificial head. Q. I see. That's nothing to do with any rotator cuff damage, is it? A. Correct. Q. In terms of that operation, there's no evidence to suggest that the need for that operation was caused by the incident on 2 August 2012, is there? A. No, that was part of the - that part of the operation was not, no."
14. Dr Faithfull also gave evidence about the cause of the damage to the rotator cuff. His opinion was based on the fact that no repairs had been made to the rotator cuff during the operation of 24 July 2012. He gave evidence that: "A. Dr Castle is a very experienced and qualified and I know her and her reputation. I doubt that she would not observe the rotator cuff when she was operating in the area and were she to observe it, and I'm sure she would not just let it pass through to the wicketkeeper, I'm sure she would do something about it, because that is an important part of making sure that the shoulder does regain function."
15. Dr Cass (who performed the third operation) gave evidence that the rotator cuff is "very difficult to visualise on an X-Ray", because its presence can only be implied by the position of bones. He said that he saw fractures where the rotator cuff was not torn, and fractures where the cuff was torn but could not be detected on an X-Ray. He accepted that a rotator cuff injury was more likely to result from a fall to the ground than being struck from above.
16. Dr Smith gave a report which stated as follows: "It is my opinion that it is improbable that some object falling onto the top of the left shoulder could affect the fracture, for the fracture was protected by the trapezius, the deltoid muscle and the acromion. In the event she was struck and fell down to the ground, landing on her elbow causing a compression injury to the neck of the humerus by the shaft of the humerus being driven up into the shoulder, then that could displace the fragments and lead to the need for further surgery, but if she did not fall under one of those circumstances, then I would not have thought an object weighing 2-3kg or even more than that falling on the shoulder, say 5-6kg, would cause any problems to the fracture of the shoulder."
17. Once again, it will be seen that that opinion (which was tendered without requiring its author for cross-examination) fell short of expressing a conclusion as to the cause of Ms Christopher's shoulder injury, even assuming she fell to the ground. It is one thing to hold the opinion that a fall to the ground could lead to the need for further surgery. It is another thing to conclude that the fall sustained by Ms Christopher on 2 August 2012 caused the need for the hemiarthroplasty four months later.

Conclusions on causation

1. Ms Christopher did not establish that the Officeworks incident caused the need for the left shoulder hemiarthroplasty. It was not established to the civil standard that the Officeworks incident had caused the screw to loosen or back out, even assuming that Ms Christopher fell to the ground. The movement of the screw was not detected by the radiologist, who attributed a different cause for Ms Christopher's ongoing pain, nor in Dr Faithfull's original report.
2. Even if the loosening of the screw was the cause of the need for the hemiarthroplasty, it was not established that that was caused by the fall at Officeworks. True it is that this was proffered as a possible cause by Dr Castle, but that is insufficient. Dr Castle also gave uncontradicted evidence that the loosening of screws was a recognised complication of surgery. Dr Faithfull confirmed that a recognised complication of humeral intramedullary nailing was that the nail "backed up". There was also evidence that screws most likely became loosened when patients were undergoing physiotherapy, as Ms Christopher may have been as early as August and certainly had been prior to the second operation.
3. With some hesitation, I would conclude that Ms Christopher has established that the damage to her rotator cuff was caused by the Officeworks incident. There is no reason to discount the opinion of Dr Faithfull about damage to the rotator cuff being readily noticed and repairable, so it is safe to proceed on the basis that it was undamaged at the time of the first operation on 24 July 2013. There is nothing in the evidence to suggest that it was damaged during or immediately after that operation, and there is the undoubted fact that Ms Christopher suffered severe pain immediately after the Officeworks incident.
4. There was no dispute that the damage to the rotator cuff might not be detectable on an X-ray. In circumstances where it is clear that (a) the rotator cuff was damaged at some time in the 18 weeks between the first and second operation, (b) the Officeworks incident may have caused the damage, and (c) Ms Christopher reported severe and ongoing pain immediately after the Officeworks incident, it may be concluded that Ms Christopher has made out this aspect of her case.

Consideration - damages

1. I turn to the heads of damages.

Non-economic loss

1. Section 16(1) precludes the award of damages for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. The primary judge's assessment, which included the period leading up to the third operation, cannot stand. Ms Christopher has established pain to which damage to her rotator cuff contributed for a period of just over 4 months. This cannot exceed the threshold imposed by s 16.
2. It follows that no damages may be awarded for non-economic loss.

Out of pocket expenses

1. The revised schedule provided by Ms Christopher after the hearing of the appeal claims $29,390.30 for past out of pocket expenses. However, many of the attendances which contribute to that amount are from 2013 and 2014. On the basis that Officeworks must compensate Ms Christopher for the damage to the rotator cuff, but not for the need for the hemiarthroplasty, no amounts for 2013 or 2014 are recoverable. Plainly, there should be no award of damages for future out of pocket expenses.
2. The largest component of the 2012 attendances is charges on 11 December 2012 by Dr Castle and Delmar Private Hospital. No evidence has been provided identifying the seven items comprising $12,387 by the hospital or three items comprising $1,945.80 by the doctor. It seems likely that the hemiarthroplasty contributed the majority of those expenses, as opposed to the repair of the rotator cuff. I consider that a broad brush approach is appropriate; cf Johnson v Perez (1988) 166 CLR 351 at 367; [1988] HCA 64, Firth v Sutton [2010] NSWCA 90 at [141], and would be inclined to allow the whole of the expenses in the schedule provided by Ms Christopher for services provided in 2012 by Dr Ashton, Dr Wilson, Dr Mechtler, Dr Chambers, Dr Gaden, Dr Hartley and Dr Castle on 4 December 2012, and one third of the expenses for services provided by Dr Castle and the hospital on 11 December 2012. However, I am conscious that the parties have not been heard as to that apportionment, and that both expressly requested an opportunity to make submissions as to costs.
3. Accordingly, the orders I propose will permit them also to make further submissions in relation to out of pocket expenses.

Gratuitous domestic assistance

1. The award by the primary judge was of $33,426. The basis upon which this was calculated is a little opaque based on the material available to this Court. Once again it is unnecessary to analyse this, in part because Ms Christopher accepted that not all of it could be defended.
2. However, s 15(2) and (3) of the Civil Liability Act provide as follows: "(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months."
3. It is not necessary to address how s 15(2) applies having regard to Ms Christopher's initial injury in Bali. The damaged rotator cuff was repaired just over four months after it was injured. Even allowing for a period of rehabilitation, it has not been established that Officeworks' negligence caused Ms Christopher to need gratuitous attendant care services for a period of at least 6 consecutive months. It follows that no damages are available under this head.

Orders

1. Both parties requested an opportunity to make further submissions on costs following the delivery of this Court's judgment. The orders I propose will permit that to occur. It may be mentioned that the circumstances attaching to this litigation make it a strong candidate for a certificate under the Suitors' Fund Act 1951 (NSW).
2. I propose the following orders:
3. Appeal allowed.
4. Set aside the judgment entered on 19 October 2018.
5. Direct the parties to provide an agreed amount of judgment, or, in default of agreement, direct the parties to provide the judgment amounts for which she and it contend and short submissions in support, in accordance with the timetable in order 5 below.
6. Direct the parties to provide an agreed minute of order as to costs, or, in default of agreement, direct the parties to provide the orders as to costs for which she and it contend and short submissions in support, in accordance with the timetable in order 5 below.
7. Any documents supplied by Ms Christopher pursuant to orders 3 and 4 above to be supplied to the Associate of Leeming JA and served within 14 days of today, and any documents supplied by Officeworks pursuant to orders 3 and 4 above to be supplied to the Associate of Leeming JA and served within 28 days of today, with a view to any remaining issue being determined on the papers.

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: 06 May 2019