R.E. Batger Pty. Ltd. v. Khayat [2004] NSWCA 276

LOWER COURT District Court JURISDICTION : LOWER COURT DC 145/01 FILE NUMBER(S) : LOWER COURT Graham DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40999/03 DC 145/01

GILES JA HODGSON JA PEARLMAN AJA

Monday 16 August 2004 R.E. BATGER PTY. LTD. V. KHAYAT Judgment 1 GILES JA: I agree with Hodgson JA. 2 HODGSON JA: On 27 July 2003, Graham DCJ gave judgment for the plaintiff in the sum of $235,342.52 in proceedings in which the respondent had sued the appellant his employer in respect of a work place injury. The appellant appeals to this Court from that judgment.

CIRCUMSTANCES 3 The respondent was born on 21 January 1981. He attained his HSC in 1998, then worked as a chef for 18 months. He worked then for six weeks as a salesperson at Bing Lee, and in November 2000, he commenced work as a process worker with the appellant, a manufacturer of education and office furniture. The respondent's normal duties with the appellant comprised cutting, punching and sanding metal. 4 In about April 2001, he was required to work on what has been variously called the paint line, the oven line, or the process line. This involved putting the frames of chairs, tables and desks onto a hook at the beginning of the line and taking them off at the end of the line. It also involved bringing the frames to the line from the welding bay, and taking the frames from the end of the line to the loading dock; although these tasks of carrying frames to and from the line were also performed by other workers, so that he performed them only once or twice per hour. 5 According to the respondent, he did this work for about three weeks in April while the worker who regularly did it was away on holidays, and then again for a few days in the week after the worker came back from holidays. His evidence was that, in taking the frames to and from the line, he was required to lift up to five or six frames at a time, giving loads of 20-45kgs; and that shortly after he started this work, he noticed pains in his lower back, and had told the foreman Ali about this. He said he was then taken off the line for some time, but later put back on it. He said he then complained to the supervisor Allen, and the same thing happened. His evidence was that this happened about ten times altogether, after which he gave up complaining. 6 The foreman Mr. Ali, and the supervisor Mr. Mann, both denied that such complaints were made, and there was no entry of any such complaints in books kept by the appellant, including one for possible compensation matters entitled the "compo book". However, Mr. Mann said that on one occasion, the respondent had complained about being stiff after weight training, and he had been taken off the line for a time following that complaint. 7 According to the respondent, he was off work with flu for ten days after these events. Employment records show that he was away from work from 4 to 14 May, although the only medical certificate in relation to that period, being a medical certificate relating to flu, referred only to the period 7 May to 9 May. The respondent was back at work on 15 and 16 May doing process work. 8 According to the respondent, on 17 May he called Allen and told him he was still having pain in his back; and Allen then said that the appellant did not need him. That evidence was not directly addressed by Mr. Mann, although Mr. Mann did say that the respondent's employment was terminated because he was often late coming to work. 9 On 17 May, the respondent went to see his general practitioner Dr. Wadhera. According to a report from Dr. Wadhera, the appellant gave him the history that he "strained his lower back while lifting metal table frames at work on or around 14-05-01". An x-ray was taken, and showed no abnormality. 10 He saw Dr. Wadhera on 19 May, and mentioned that he had been having "injection into the left gluteal region, which may have some relationship to his pain"; and Dr. Wadhera referred him to a specialist neurologist Dr. Wood for further assessment and treatment. 11 Dr. Wood reported as follows to Dr. Wadhera on 25 May 2001: Thank you for asking me to see Amer who came with his father today. Some two months ago he was given an injection of androgen by a friend into his left buttock. He also had an episode on the right buttock a week or so previously. Soon after this injection he noticed that both great toes went numb but it has only been in the last few weeks that he has noticed that the area of numbness spread onto the dorsum of his left foot and up into the lateral part of his calf and that his left leg has become weak and heavy. He noticed that he throws it when he walks and that he has pain down his shin on the left. In the last week or two he has also developed back pain and he has pain which radiates from his buttock up into his back down into the lateral part of his leg into the calf. He has had episodes of back pain on and off in the past and does recall having to do a lot of heavy work in the course of his job around the time when these symptoms developed. He has had no operations in the past and is on no regular medications. He was working in a factory but was sacked from this job last week which he believes was a result of his complaint of back problems. He has intended to do some security work but says he would find this difficult currently. He smokes about one cigarette per day. He does not use any alcohol and denies any other drug usage.

On examination he has normal cranial nerves and upper limbs. He has 4/5 power of inversion and dorsiflexion and extensor hallucis longus on the left and also has some weakness of her (sic) abduction. He possibly has some reduction in his left knee jerk although quadriceps seems quite strong. When he walks he cannot get onto his heel on the left. He has no convincing sensory loss.

He brought with him the plain X-ray of his lumbar spine which does not show significant abnormalities.

I suspect the injection is not the cause of his symptoms as certainly one would think that an injection into his sciatic nerve would result in symptoms immediately and not the development of symptoms as time has gone on. I suspect he more likely has an L4/5 disc prolapse with compression of his L5 root on tile left. I have suggested he have a course of physiotherapy and have also sent him for a CT scan of the lumbar spine with which he will return in a couple of weeks. At that stage I will also perform some nerve conduction studies to determine whether he has a more distal lesion such as peroneal nerve palsy. 12 A CT scan taken on 28 May 2001 showed "At L5/S1, there is a prominent left foraminal and far lateral disc herniation, compressing the exiting left L5 nerve root". 13 There is in evidence a medical certificate from Dr. Wood certifying a condition of "disc prolapse", and certifying unfitness for work from 25 May 2001 to 25 June 2001. 14 The respondent signed a workers' compensation form on 17 August 2001, asserting "in April and in first two weeks in May 2001 while working on the Oven Line I experienced pain in my back which worsened over a three week period". The form stated that the injury was reported to Allen (supervisor) in April; and that the witnesses were Keith Richards and Ali. The date of injury was given as between 1 March 2001 and 17 May 2001. 15 According to the respondent, he had physiotherapy which improved his back. He got a job in December 2001, process working, but after some time started getting pains in his back and legs again; and he left this job in July 2002. He was out of work then until November 2002, when he obtained a job selling electrical appliances, a job which he retained at the time of the trial. 16 The respondent gave evidence that he also helped in a family business of erecting pergolas. 17 The respondent said he was still getting pains in his back and left foot, though the back was improving while the left foot remained the same. 18 The respondent also gave evidence that since about 1994 or 1995, he had always done weight training, lifting weights of 5-15kgs for his biceps standing up, and doing bench presses raising weights of about 50kgs lying on his back; and that he did this about once a week. Since May 2002, he had been engaged in kickboxing, doing kicking, punching and running twice or three times a week, for two hours at a time. He also did a fair bit of disco dancing, about once a week. The only medication being taken was Voltaren Rapid. There was in evidence a video tape of the respondent, showing him engaging in quite vigorous activity. 19 The respondent put into evidence reports from a safety and risk management expert, Mr. Cockbain, to the effect that the respondent had been exposed to a high risk of injury. However, that report was based on certain assumptions, including assumptions that the respondent was working about 13 hours per day, lifting tables each weighing between about 20 and 50kgs, and generally weighing about 30kgs, 40-50 times per hour. 20 There were reports by medical experts tendered for the respondent and for the appellant. 21 For the respondent, Dr. Wood, who last saw the respondent in late 2001, reported that he would regard him as having 15% impairment of his back and 10% impairment of his left leg below the knee. He believed that the prognosis for further recovery and perhaps of complete resolution of his symptoms was good, although the work restrictions (unfitness for work that involve heavy lifting or substantial bending) were likely to be permanent. Dr. Wood considered there was a possibility that he might have exacerbation of symptoms in the future and also a possibility that surgical treatment might be required if he had a serious exacerbation. Dr. Wood's report made no reference to the respondent's weight training either before or after the alleged injury, or to his other vigorous activities. 22 An orthopaedic surgeon, Dr. Benanzio, who saw the respondent on 11 April 2002, reported that his prognosis was guarded, and that he must avoid repeated bending and lifting. He considered the permanent impairment of the back to be 25%, and permanent loss of the efficient use of the left leg at or above the knee to be 20%. He made no reference to the weight training, before or after the alleged injury, or to the other vigorous activities. 23 For the defendant, Dr. Millons, who saw the respondent in April 2002, reported that the respondent would perhaps be advised to avoid work that entailed excessive bending, lifting more than 15kgs or working in confined spaces. However, the prognosis was reasonable. He put permanent impairment of the back in the order of 10%, and permanent loss of efficient use of the left leg at or above the knee of the order of 2%. Dr. Millons has recorded that the respondent used to be active in the gym, attending there three days a week doing some circuit work, including some cardio work and weights; but incorrectly recorded that he had not gone back to the gym. 24 Finally, Dr. Bodel, an orthopaedic surgeon who saw the respondent on 20 September 2001, considered that the respondent probably was not then fit for work as a process worker in an office furniture company, but should soon be able to cope with part-time light duty work that avoids unprotected bending, twisting or lifting, and that long-term, his prognosis was reasonable. He considered there were minimum nerve root irritability signs in the left leg, and that these might settle over time. He assessed the respondent as being left with a 5% overall permanent impairment of function in the back. On 23 June 2003, Dr. Bodel gave a report based on his observation of the video tape of the respondent, and he noted as follows: There is certainly nothing in the video tape which would indicate that this patient has definite ongoing pathology although his clinical presentation when I examined him and the CT scan that I saw at that time did suggest some minor disc pathology in the back which may have been consistent with the history of the injury that he gave.

DECISION OF PRIMARY JUDGE 25 The primary judge said that his impression of the plaintiff was that he was a truthful witness; and although he was not entirely a careful historian, that did not in itself cause him to doubt that his evidence, generally speaking, was reliable evidence. He accepted that the plaintiff's description of the events which led up to his going to see the doctor with back complaints was an honest and accurate description of those events. 26 He found that the plaintiff was lifting and carrying frames, each normally weighing between about 7 and 11kgs, and carrying them in stacks of between about 20 and 40kgs, which were significant and which had to be carried on a regular basis; and that it was carrying these stacks of frames that caused the back symptoms. He found that the appellant knew or ought to have known this, and that this was unsafe and preventable. Accordingly, he found that the appellant was negligent, and that there was no contributory negligence. Turning to damages, the primary judge found that this was a serious injury, relying particularly on its nature as a disc injury and on its potential impact over a lengthy future; and in terms of economic loss, he assessed it as being 33?% of a most extreme case, resulting in an award of $84,163.00. He found past economic loss of $18,018.93. He awarded $120,000.00 for loss of earning capacity for the future, on the basis of a cushion. He awarded $10,000.00 for future medical expenses, $1,820.00 for past out-of-pockets, and $1,319.59 as interest on past economic loss.

GROUNDS OF APPEAL 27 The appellant relied on the following grounds of appeal: Liability 1. The trial judge erred in law as to the determination of negligence on the part of the employer. 2. The trial judge erred in the manner in which he: (a) found the facts relevant to the issue of liability; (b) applied the expert evidence to the facts (as found) on the issue of liability; (c) utilised and applied the expert evidence, in light of the assumptions upon which the experts relied being proved to be false. 3. The trial judge erred generally in failing to give adequate reasons and specifically in respect of the reasons given: (a) in making findings of fact in respect of the circumstances of the injury; (b) by failing to make any, or any adequate findings, in relation to issues of credibility and reliability; (c) in finding that the alleged injury was related to an incident in the workplace.

Damages 4. The trial judge erred in law as to the test to be applied to determine whether an injury is a `serious injury' for the purposes of the Workers Compensation Act, 1987 5. The trial judge erred: (a) in making a finding for non economic loss which was excessive and not supported by the evidence; (b) in making a finding for economic loss which was excessive and not supported by the evidence; (c) in selecting a figure for economic loss of a global sum of $120,000.00, rather than making calculations of the loss as required by the Workers Compensation Act, 1987; (d) by making a finding in respect of a future medical expenses which was excessive and not supported by the evidence.

SUBMISSIONS 28 Mr. Watson SC for the appellant submitted that the primary judge erred in three principal respects. First, he did not resolve material factual issues in the case, or at least did not give reasons. Second, he did not justify a finding of causation, in effect reversing the onus of proof. Third, he did not justify the finding of negligence. 29 On the third matter, Mr. Watson submitted that the respondent's expert had given evidence based on completely wrong assumptions; and that the findings to the effect that there was regular lifting of significant weights was insufficient to support a finding of negligence. 30 As regards damages, Mr. Watson submitted that the higher percentage figures for disability given by the respondent's doctors should be discounted, because they did not have proper histories; and that in the light of the respondent's present condition and activities, a finding of 33?% of a most extreme case was plainly excessive. On a proper assessment, the respondent did not pass the 17.6% threshold under s.151G of the Workers' Compensation Act 1987, as it was at the material time, necessary for the award of non-economic loss; much less the 23.5% threshold required for economic loss under s.151H of that Act. Mr. Watson submitted that the primary judge did not give reasons supporting his award of past economic loss, and the award for future economic loss, which represented about $150.00 per week net, was plainly excessive. 31 Mr. Cranitch SC for the respondent submitted that the primary judge had adequately resolved the necessary facts. The job required the respondent to load about 40 items per hour onto the paint line, and also to take items to and from the line, carrying them in multiples of up to five or six. That supported the judge's findings that loads of up to 40kgs were carried, and the expert's report supported a finding that carrying loads of that weight on a regular basis was excessive. It was open to the judge to take the view that this was a hazard and was one of which the appellant should have been aware and against which the appellant should have protected the respondent. The appellant did not guide the respondent as it should have, and gave no direction as to what should or should not be lifted or as to how the items should have been dealt with. 32 On causation, Mr. Cranitch submitted, it was open to the judge to find that the use of weights as described by the respondent would not have contributed to the injury, and this was supported by Dr. Millons. 33 As regards damages, Mr. Cranitch submitted that the primary judge was entitled to treat the injury as serious: there was a disc lesion causing genuine low back pain, and the respondent was only just over 20 years old with almost the whole of his life in front of him. Putting the matter at one-third of a most extreme case was within sound discretionary judgment. All doctors put a restriction on his work capacity, and the respondent was continuing to experience pain after doing any lifting.

DECISION 34 In my opinion, as submitted by Mr. Watson, it was necessary for the judge to resolve the conflict in the evidence between the respondent on the one hand, and Mr. Ali and Mr. Mann on the other. The respondent's evidence about experiencing pain at the time of doing the work and complaining, with the result that he was temporarily taken off this work, was an important part of the respondent's case that the lifting was excessive and did cause his back problems. Mr. Mann's evidence that the only complaint was of stiffness caused by work at the gym was significant evidence to the contrary. The primary judge did say that he accepted the respondent's account as honest and accurate, and thus at least implicitly rejected the contrary evidence of Mr. Ali and Mr. Mann. The only reason he gave for doing so was reference to a photograph showing four frames being carried at once, but that photograph did not contradict anything that Mr. Mann or Mr. Ali said. In circumstances where the primary judge said that Mr. Ali and Mr. Mann gave evidence that was on the face of it credible, it was necessary to indicate some rational basis for preferring the evidence of the respondent, and this was not done. 35 Dealing with the second point, the primary judge observed, at Red 31, that the respondent bore the onus of proof, and that there was no onus on the appellant to establish any alternative explanation for any injury which the respondent had. In relation to the suggestion from the appellant that his back problem may have been caused by his weight-training in the gym, the primary judge made the following observations: No evidence has been led to suggest how it might be that his involvement in those pursuits might have produced the type of injury which has been found by the medical experts in this case.

Whilst, no doubt, as a matter of lay inference, it could be said that the plaintiff's involvement in such activities outside his work could have created a situation in which he may have sustained some such back injury, in the absence of any expert evidence and in the absence of any lay evidence as to any such incident or series of incidents on his part, that hypothesis seems to be very much a speculative hypothesis. 36 I do not read that passage as indicating that the primary judge reversed the onus of proof in relation to causation. Given that the primary judge accepted the respondent's evidence that he complained about problems with his back connected with the lifting of the frames, and apparently rejected the evidence of Mr. Mann that he sought to be relieved from lifting frames because of stiffness from his gym work, the primary judge was entitled to infer causation; and I would not read the passage quoted as doing any more than raising factors relevant to the question whether he should draw the inference of causation in the respondent's favour. Similarly, on the basis that the respondent's evidence was accepted, I do not think the absence of reference in the medical evidence, apart from that from Dr. Millons, to the weight-training was of great significance. 37 However, if the respondent's evidence had not been preferred to Mr. Ali and Mr. Mann, it is very doubtful that the inference of causation could have been drawn. If the truth was that the respondent made no complaint about lifting affecting his back to Mr. Ali or Mr. Mann, but did complain about problems with lifting resulting from his gym work, then in my opinion it would have been necessary for the question of causation to be addressed by the medical witnesses, having regard to that set of circumstances; and of course, that was not done. 38 Turning to the third question, the evidence of the safety and risk management expert was based on incorrect assumptions. At no time did the respondent work 13 hours a day. In the first of the three weeks when he was working on the paint line, it appears that he worked for 10 hours and 25 minutes on three days and for lesser times on two days. However, in the second of those weeks he worked for 8 hours and 25 minutes on each of three days and did not work on any of the other four days. On the third of those three weeks, he worked for five hours one day, 8 hours and 25 minutes another day, and 9 hours and 25 minutes on a third day, and did not work on the other four days. In the week before he was off work for ten days, he only worked two days, one for five hours and one for 7.9 hours. On the following week, he worked one day before his ten days off work, for 6 hours and 25 minutes. On the two days that he worked after coming back from his ten days off work, he worked for 8 hours and 5 minutes and 8 hours and 25 minutes. The frames that he was lifting did not weigh between 20 and 50kgs, and generally about 30kgs but, on the primary judge's findings, between about 7 and 11kgs. He was loading individual frames onto hooks, perhaps 40 or 50 times an hour, and it would seem taking individual frames off hooks 40 to 50 times an hour; but the carrying of stacks of frames, which the primary judge found to be the cause of his problems, only occurred once or twice per hour. As far as the evidence went, when he carried stacks of 40kgs, he stood up inside the frames and lifted them with his arms on either side of him. The primary judge's finding of carrying significant weights on a regular basis did not, in the light of the expert's report, justify a conclusion that the system of work was unsafe. 39 For those reasons, in my opinion the finding on liability should be set aside. It is possible that, if the respondent were to be completely accepted, a finding of negligence might be justified, and so, but for my views on damages, I would have ordered a new trial. 40 However, in relation to damages, the finding of one-third of a most extreme case was in my opinion plainly excessive. On the primary judge's finding, the respondent did have a condition which would limit the jobs available to him, and could give rise to periods of unemployment, this in turn having some bearing on his enjoyment of life. There was evidence of some continuing pain, albeit adequately controlled by medication. There was a possibility that his condition could worsen, but also a possibility that it could resolve. A factor in favour of a significant award for non-economic loss was the circumstance that he was young and had his whole adult life in front of him. 41 However, when one has regard to the vigorous activities that he was undertaking, including weight-training, kick-boxing and disco-dancing, it is in my opinion impossible to regard his condition as being anything approaching one-third of a most extreme case. In my opinion, that assessment is well outside the range open to the primary judge. In my opinion, were this Court assessing damages at this stage, it would be appropriate to assess the respondent's non-economic loss at 15% of a most extreme case. That would be insufficient to pass the threshold for non-economic loss, much less the higher threshold for economic loss. For that reason, in my opinion there should not be a new trial ordered, but a verdict entered for the appellant.

CONCLUSION 42 For those reasons, in my opinion the following orders should be made: 1. Appeal allowed. 2. Verdict and judgment below set aside, and in lieu thereof verdict and judgment for the appellant, the respondent to pay the appellant's costs of the proceedings. 3. Respondent to pay appellant's costs of appeal, and to have a certificate under the Suitors Fund Act if otherwise entitled. 43 PEARLMAN AJA: I agree with Hodgson JA. **********

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