Sukkhathammavong v Cook Freeze P/L [2003] QCA 248

[2] WHITE J: I have read the reasons for judgment of Wilson J and agree with her Honour that it cannot be said that the learned trial judge erred when he preferred the expert medical opinion advanced by the defendant to that of the appellant.

[3] I agree that the appeal should be dismissed with costs.

[4] WILSON J: This is an appeal against the decision of a judge of the Trial Division of this Court dismissing the appellant's claim against the respondent, his employer, for damages for negligence and/or breach of statutory duty.

[5] The appellant succeeded in proving a breach of the respondent's duty of care and probably also a breach of statutory duty, but he failed on the issue of causation.

[6] The respondent had a factory at Wacol where it produced frozen and other foods. The appellant was employed there as a cleaner and process worker between April 1981 and May 1997. He left that job because excessive degenerative changes in his lumbar spine at L2-3, L3-4 and L4-5 made it impossible for him to cope with the heavy lifting involved in his work. He alleged in his pleading -

"8. The excessive degenerative changes were caused by the negligence and/or breach of statutory duty of the Defendant."

It was not the appellant's case that the damage to his lumbar spine was the result of any sudden, acute injury, but rather that it was the result of repetitive heavy lifting. However, the trial Judge said -

"On the evidence, I accept that prolonged, extremely heavy lifting resulting in heavy loading of the lumbar spine can cause aggravation of degenerative lumbar disease. Such heavy loading can occur in work required of brick layers, furniture removers, and miners. But even though the plaintiff suffered the injuries I have mentioned, I am not satisfied, having considered all of the expert evidence on the subject, that the work he was required to do was a cause of the degeneration of his spine or of any part of that degeneration. It follows that the plaintiff's claim must fail."

It was submitted on appeal that that conclusion was against the evidence and against the weight of the evidence.

[7] The appellant was born in Laos in 1955. He came to Australia, via a refugee camp in Thailand, in 1980. He commenced work with the respondent in April 1981. He worked as a cleaner in the wash-up and rubbish rooms until 1991 or 1992, when he moved to the kettle bank. From late January 1997 until he ceased work in May 1997 he worked on the packing or production line.

[8] The work in the wash-up room involved dismantling, cleaning and reassembling parts of machines used in the cooking process, as well as cleaning and scrubbing out steel bins. The burger machine had a bowl weighing 35 - 40 kgs which the appellant had to remove, clean and replace. He also had to lift and handle three heavy plates, two of which weighed about 25 kgs and a third probably about 45 - 50 kgs, and wheeled steel bins weighing 90 - 110 kgs. In the rubbish room he sometimes had to lift damaged bins filled with food scraps onto trolley jacks. The appellant was rotated between the wash-up room and the rubbish room on a monthly basis. The duties in the wash-up room were rotated between cleaning the steel bins and the other work, one month being allowed for each.

[9] At the kettle bank the appellant was employed as a cleaner and as a cook's assistant, later becoming a cook specializing in cooking soup. In the course of those duties he had to lift boxes of ingredients of up to 30 kgs each, sometimes to carry the boxes up stairs to a platform, and sometimes to drag steel bins containing ingredients and then transfer the ingredients to the kettles by means of boxes or buckets. Once cooking was completed, the contents of the kettles had to be emptied into large steel bins which were then dragged from underneath the kettles.

[10] In each location the work was repetitive. In the wash-up room the appellant did most of the dismantling, cleaning and reassembly of the burger machine. The estimates of how often it was cleaned varied between two to four times a day and two or three times a week. The appellant cleaned 10 - 20 bins in the course of a day, sometimes cleaning each bin between four and six times. In the kettle bank substantial handling of heavy objects was required of him.

[11] On the evidence there were various occasions over the period of the appellant's employment by the respondent when he complained of back pain - 12 January 1982 (when he was off work for about one month); 28 April 1982; 21 November 1983; 2 March 1987 (when he was off work for two weeks); 23 October 1989 (when he had right sciatica); 8 April 1991; 29 December 1991; 28 February 1992; 21 February 1993; 23 July 1993; 28 May 1994; 5 September 1995 (when he was off work until 25 September 1995); 15 February 1996; and 12 November 1996 (when he was off work until 31 January 1997). He transferred to the production line, but his back problems worsened until he ceased work on 10 May 1997.

[12] An x-ray of the appellant's lumbar spine in 1982, when he was aged 27, showed some narrowing at L4-5. Nine doctors gave relevant evidence. That degeneration was unusual for a twenty-seven year old, and was an indication that more extensive degeneration could be anticipated in later life. By the time the appellant ceased work he was aged 42, and the degree of degeneration was far in excess of that commonly found in a man of his age.

[13] It was common ground that repetitive heavy lifting may accelerate degenerative change, but there was disagreement upon whether the lifting required of the appellant had done so to any material extent in his case. The trial judge was unpersuaded that it had.

[14] In his reasons for judgment the trial judge focussed on the competing views of Dr David White, orthopaedic surgeon, and Dr Alison Reid, neurologist. They were fairly representative of the medical witnesses. The evidence of Dr White, Dr Ronald Packer (orthopaedic surgeon), Dr Ian Low (specialist in occupational medicine), and Dr Michael Coroneos (neurosurgeon) tended to support the appellant's case, while that of Dr Reid, Dr Peter Boys (orthopaedic surgeon), Dr Michael Weidmann (neurosurgeon), Dr John Morris (orthopaedic surgeon) and Dr Robert McCartney (who was training to be a specialist in occupational medicine) did not.

[15] In Dr White's opinion the degree of the degeneration was such that there must have been some external factor in its development - which, on the evidence, was the repetitive, heavy lifting. In her report of 2 August 2001 Dr Reid noted a significant functional overlay in the appellant's presentation; she acknowledged the possibility of temporary aggravations triggered by activities within or without the workplace and went on -

"For the workplace to be seen to actually influence the natural progression of the underlying degenerative disease process, the worker would have to be involved in exceedingly heavy work placing mechanical loading on the lumbar spine over a very long period of time."

She did not consider the lifting he had done to fall within that description. Counsel for the appellant endeavoured to show that her knowledge of the weights lifted and their frequency was incomplete when she wrote her report. However, in cross-examination the actual weights were put to her, and she did no more than agree that lifting such weights may enhance a pre-existing degenerative process. She emphasised -

"But the degenerative process is there by virtue of sex, constitution, race, anything else, and heavy mechanical loading not just once but over a long period of time may serve to enhance this condition but, as I have said to the other gentleman, whilst that is all absolutely true, we practising doctors see people who have never lifted a thing in their life who have sat at desks. I wouldn't be a bit surprised if some people - you people in Court have horrible backs."

[16] Dr Low supported the appellant's case in his report when he wrote -

"It is highly probable that Mr Sukkhathammavong's spine was exposed to sufficient spinal loading, on undertaking these tasks, that he would have developed disc damage (see attachment). The spinal loading, associated with these tasks, could also have resulted in a mechanical derangement of Mr Sukkhathammavong's spine. Therefore, on taking into account both the stress associated with tasks he was required to undertake and the length of time he worked for the company, his employment at Cook Freeze would have, in all probability, materially contributed to his degenerative spinal disease."

His oral evidence was not so dogmatic. While maintaining that spinal loading associated with work had made a material contribution to the degeneration, he said it was impossible to say with certainty in an individual case what part of the degeneration was due to spinal loading and what part was due to ageing. He said -

"One can only look from a general point of view and try to assess the affect of any spinal loading that is there, and then make some sort of assumption with respect to that."

While the trial judge did not reject Dr Low's opinion, at its highest it afforded no more than evidence that some unidentified part of the degeneration was probably attributable to work related spinal loading, and it was counterbalanced by evidence of doctors with the opposing view.

[17] The assessment of the competing medical opinions was a matter within the province of the trial judge. He has not been shown to have misrepresented or misinterpreted that evidence. The appellant bore the onus of persuading him that the body of evidence which supported his case was to be preferred, but he failed to discharge that onus. In the circumstances the trial judge was correct in dismissing the appellant's claim: Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 995 - 6.