Queensland University of Technology v Davis [1997] QCA 437

Included in the summary of the chapter on this subject to be found in an Australian text, "Medicine and Surgery for Lawyers", 2nd ed. LBC Information Services 1996, edited by Buzzard and others, one finds these comments on "functional overlay" cases:

"Because of constant brooding and introspection, a person either has multiple symptoms, or a few specific symptoms which are often constant, intractable and persistent. The diagnosis of a functional overlay aspect is not something which can be definitely made. There is no scientific test or litmus test whereby the diagnosis can be definitely proved". (150)

The author goes on to refer to what he describes as "inconclusive" studies of the extent to which persons in this category recover after the case is over.

In the present case, damages were assessed on the basis that the psychiatric condition from which the respondent suffered was permanent and substantially attributable to the minor injury which the respondent sustained. Trial judges generally take a rather cautious approach to cases of this kind, one reason for that no doubt being that, if the community understands that very large sums are likely to be awarded in such circumstances, there is a possibility that the tendency to exhibit functional overlay may be enhanced, among people who are injured in circumstances which give them a prospect of recovering damages. It would be unfortunate if too generous an approach to cases of this sort were actually to promote the exaggeration of symptoms.

Approaching that point from another angle, one would hope that injured plaintiffs who try their best to ignore minor disabilities rather than dwell on them should not be excessively disadvantaged in court proceedings, as compared with those who act otherwise. In the present case, there was no finding that malingering was involved, nor does any ground appear on which such a finding could be made; nevertheless, the award seems to me to have been a generous one for a condition of the type I have discussed.

Despite these reservations, I agree with Thomas J. that the case is not one in which this Court would be justified in interfering with the trial judge's assessment.

This is an appeal against a judgment in favour of a plaintiff for damages for personal injuries. The appeal challenges the trial judge's failure to find contributory negligence against the plaintiff and also the quantum of the damages assessed.

At the time of the accident the plaintiff was a 50 year old woman employed as a mail clerk at the Kedron Campus of QUT. The accident consisted of her being bumped from behind by a fellow employee, Steve Brooks, a man of about 25 or 26 who was carrying three cardboard cartons containing stationery. The cartons were so stacked (one on top of the other) that Brooks could not see where he was going except by craning his head to the side of the top carton.

The relevant events occurred inside a building (D Block), in a room or passageway described as the pick-up area. That area was about 3 x 4 metres in size. One end of that area gave access to another room described as the plaintiff's office. The other end of it was accessible from other parts of the building including a passageway and a walk-through area which led to an area outside the building described as the "goods inwards" area.

On the morning in question the plaintiff was dragging a mail-bag either from her room or from the mail rack to the corner where the passage led off from the pick-up area. The plaintiff was walking upright and dragging the mailbag with her right hand. As she did this she saw Brooks carrying the cartons. It was obvious that Brooks could not see where he was going. They were said to have been some eight feet apart and both moving in each other's general direction. Brooks was carrying the cartons from the "goods inward" area and was on a course that could have taken him either along the passageway or into the plaintiff's office. The plaintiff assumed that Brooks was intending to take the cartons into her room and she proceeded to place her mailbag at the corner of the passageway. In doing this she turned her back on Brooks. Brooks however was proceeding to the passageway to his right. This direction of travel brought him into collision with the plaintiff who was knocked over and fell on her right knee and wrists.

Part of the floor of the pick-up area was already covered by a number of mailbags which had been deposited adjacent to the racks outside the plaintiff's office. The place of the collision was near the commencement of the passageway along which Brooks was intending to move.

The learned trial judge found that the appellant university was negligent in failing to instruct Brooks in relation to his method of carrying such mail, that Brooks was negligent in failing to keep a proper lookout and that the university was vicariously liable for Brooks' negligence. He declined however to find the plaintiff guilty of any contributory negligence, observing that while she could be accused of some "misjudgment" in the matter, he did not regard it as amounting to contributory negligence, referring to Bankstown Foundry Pty Ltd v Braistina (1985-1986) 160 CLR 301, 310.

The following facts and observations are relevant in determining this question. The plaintiff saw Brooks prior to the collision and had sufficient time and opportunity to avoid him or to call out if she found difficulty in doing so. She knew that he was in effect walking blindly and that he was a potential danger. Instead of keeping him under observation she turned her back to him. She did this because of an assumption that he would go into her office. The reasonableness or otherwise of that assumption is a relevant matter. Depending upon the contents of the boxes, he would either be taking them into her office for processing, or if they were destined for departments, he would take them somewhere else by means of the passageway. The respondent did not know what was in the boxes. The evidence does not address the relative frequency of his movements in one direction or another, but the effect of the plaintiff's evidence is that usually such packages would be taken to her office.

Having observed him she did not look towards him again. She moved some distance towards him (although he could not see her) after seeing him, and then turned her back on him. It may be noted that even if he had intended to go to her office, there was very little space between the bags already on the floor and the other wall of the pick-up area and that it was a somewhat surprising action by the plaintiff to turn her back on him in such a small area even on the assumption that she had made. In the event, she moved herself to a position which would impede the course he intended to follow.

Counsel for the respondent submitted that these factors do not show contributory negligence on her part, and that her "misjudgment" did not show a want of reasonable care for her own safety. It was further submitted that she did not disobey any instructions and that the onus is on the defendant to prove contributory negligence.

In my view it is impossible to characterise the plaintiff's conduct and contribution leading to this incident as "mere inadvertence inattention or misjudgment", or as conduct which a reasonable person would not foresee as something that would expose herself to risk of injury. Indeed, she saw a fairly obvious potential risk and turned her back to it. Obvious and natural steps to ensure her own safety included calling out, staying where she was, or keeping him under observation so that she could avoid him.

This was essentially a matter of common sense and of natural instinct. There are everyday risks inherent in human movement which are instinctively avoided.

"The passing and repassing of persons in the street, in rooms, at social occasions, in corridors where pictures are hung, and the browsing and moving of persons in stores is a familiar part of life. In the street a person who has been looking in a shop window may step backwards into the path of another. The pedestrian may be forced to walk close to where such a person is standing because there are other persons occupying the footpath, or simply because he chooses to do so. Normal human movement adjusts itself to react even to sudden or unexpected movements of another in such situations."

(Uniting Church of Australia Property Trust v Dobell CA 145 of 1995,

It is inescapable that the plaintiff failed to take reasonable care for her own safety and that this contributed to the occurrence of the incident.

It will be necessary for this Court to decide the appropriate apportionment, none having been made by the learned trial judge. Submissions on this question have not been particularly helpful, and no comparable or relevant exercises of this particular discretion were referred to. Counsel for the appellant submitted that it is a simple case of two individuals physically colliding at a place of employment and that they should share responsibility equally for the collision.

"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd; Smith v McIntyre and Broadhurst v Millman, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."

(Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, 493-494)

The necessary comparison should not overlook the finding that the defendant is responsible not only vicariously for Brooks' negligence but also responsible for failing to impose a system which prohibited cartons being carried in the way Brooks did. Such a habit would be potentially dangerous to other employees. At the same time the plaintiff's conduct was an obvious departure from what might be thought to be elementary precautions, and it had played an important part in the overall incident. In the circumstances I would apportion liability as to 70 percent against the defendant and 30 percent against the plaintiff.

Following the accident (on 22 June 1993) the respondent complained of a sore right knee, painful wrists, some nausea and a headache. She was treated by the campus doctor and continued to attend work. The symptoms resolved fairly quickly except for the knee, and two months later chondromalcia was diagnosed in the right patella. An arthroscopy was successfully performed on 31 August 1993 leaving her with only a 5 percent loss of function of the right leg. The orthopaedic opinion is that apart from that there is nothing wrong with her knee, her feet, her hands, her back or her shoulders, in all of which areas she continues to complain of symptoms which are appropriately referred to by the learned trial judge as "bizarre". The persistence of complaints of pain in her knee and their alleged spread to other parts of the body were regarded by the learned trial judge as explicable only on the basis of a psychiatric disorder. His Honour accepted that they are so explicable and that they are a reaction by the plaintiff to the accident.

The principal challenge to the assessment is that the learned trial judge failed to give sufficient effect to the strong prospect that she would in due course have suffered from a similar psychiatric problem in any event. The way in which the learned trial judge dealt with this problem may be seen from the following extracts

"In saying that the plaintiff was likely to have developed a psychiatrically disabling condition some time in her fifties, Dr Mulholland was taking into account the 'monosymptomatic delusion' referred to by Dr Rice, that is the incident concerning the smoke from the combustion stove. If that incident is stripped of its delusional qualities, as I think is the result of the evidence called by the plaintiff on this point, and as Dr Mulholland seems to concede, then his conclusion on this point it seems to me is very much weakened and I suspect is not one he would continue to assert although he did not expressly abandon it. His evidence is still to the effect that a condition such as that from which the plaintiff suffers is dependent upon an underlying vulnerable personality so that the condition can be triggered by different events and in this case was triggered by the accident in June 1993; but as to when it might otherwise have occurred, I think the doctor would concede that he could not now say, except that it is likely to have occurred at some stage in the plaintiff's life. That would be consistent with the evidence of Dr Rice.

I consider that the proper conclusion to be drawn from the psychiatric evidence is that the plaintiff was likely to suffer a psychiatric condition, similar to the one presently afflicting her at some point in her life as a result of some other accident or incident acting as a precipitant, but it is not inevitable that this would occur, nor is it known when it would be likely to occur, if it did. Therefore it is not a case of acceleration, but a matter of assessing the risk of the plaintiff's developing similar symptoms in the absence of the defendant's negligence. Granted that she has a vulnerable personality, and taking into account the ordinary vicissitudes of life, I think it is reasonable to assess this risk at 20%, that is, I consider that there is and has been from the start of the accident a 20% chance that at any time the plaintiff might be involved in an accident producing a similar psychiatric result."

Counsel for the appellant submitted that the evidence of Dr Mulholland, whose evidence the learned trial judge otherwise accepted, included the opinion that sooner or later she would have developed some sort of psychiatric condition of this kind, given the history that had been put to him. In cross-examination the doctor said "I would think some time in her fifties she would have some sort of reasonably significant either physical or psychosomatic disorder". If the evidence stopped there, the appropriate assessment of damages should have been based upon the present accident having accelerated most of her overall problems by something of the order of five years. That would have led to a substantially lower assessment than that which was made ($211,352.28).

However Dr Mulholland's statements in cross-examination were posited upon a history which regarded as a delusion her reaction to a neighbour's use of a slow combustion stove and its pernicious emissions. The defence called evidence justifying the view that it was by no means a delusion even though her reaction to it was more extreme than that of other neighbours in the district. A similar "delusion" view of it was taken by Dr Rice in a report tendered in evidence and put to Dr Mulholland. This view was undoubtedly an influential factor in the view expressed by Dr Mulholland in cross-examination. Moreover, in re-examination he agreed that if he were to drop the notion that this was a delusion he would have to regard her reaction at the time as a reasonable response to her vulnerable situation, and as being of no psychiatric significance. His subsequent evidence is not particularly clear, but on that premise he would seem to have favoured the approach that at the time of her accident in 1993 she should be treated simply as an especially vulnerable plaintiff.

There is therefore no sound basis upon which the appellant may submit that the learned trial judge was bound to act upon the view stated by Dr Mulholland in cross-examination, which was partly based upon a premise which was falsified in the course of the trial. In that state of the evidence the learned trial judge was confronted with a difficult task and it was necessary for him to do the best that he could on evidence that gave little clear guidance on the question of the plaintiff's probable future if this particular accident had not happened. Given the relatively mild nature of the physical trauma in the accident in question and the extreme reaction of the plaintiff, and the existence before the accident of other stress factors such as the retirement of her husband in 1990 and her negative attitude towards this, it is perhaps surprising that His Honour settled upon "the risk of the plaintiff developing similar symptoms in the absence of the defendant's negligence" at only 20 percent. A considerably higher discount could reasonably have been allowed, but that is not to say that His Honour erred. The trial judge had advantages including hearing and seeing the plaintiff, and in the state of the evidence on this question the trial judge's impressions of her might reasonably influence his determination of such an issue. In an exercise of this kind considerable latitude is open to the trial judge and a court of appeal is reluctant to interfere unless error is apparent or such a result could not reasonably be arrived at.

It was further submitted on behalf of the appellant that psychiatric illness was not a reasonably foreseeable consequence of the relatively minor physical activity for which the defendant was responsible. It is enough to say that surprising though the eventual result may seem, in my view such a possibility survives the reasonable foreseeability test.

In the circumstances the appellant has failed to show that this Court should interfere with the quantum of damages assessed.

Since preparing these reasons I have read the additional comments of Pincus JA, with which I agree.

The damages, when reduced by 30 percent for contributory negligence come to $147,946.59. From this there must be deducted the amount required to be refunded to the Workers' Compensation Fund of $11,154.28.

1. The appeal is allowed with costs limited to the issue of contributory negligence.
2. The judgment below is set aside and replaced with judgment for the plaintiff for $136,792.31 with costs to be taxed.