Sutton v Firth

Sutton v Firth - [2009] NSWDC 53 - NSWDC 2009 case summary — Zoe

[62]

35 In my view, the medical evidence is all one way, namely, that the plaintiff had pre-existing congenital pars defects in her spine, which were asymptomatic although perhaps making the back more prone to injury. The nature and conditions of her work at Go-Lo over a two or three-year period in lifting heavy boxes, standing and bending caused disc protrusions at the L3/4, L4/5 and L5/S1 levels; those protrusions culminated on 12 February 1998 in the onset of a chronic condition of lower back pain with referred pain down the left leg, as the plaintiff was bending and lifting heavy boxes of product; she was thereby unable to perform any work for a period; her condition was expected to be ongoing with the possibility of future surgery to excise the protrusions and perhaps spinal fusion; and future cognitive behaviour therapy would assist in better managing the chronic back and left leg pain where it had as a sequelae to the employment injury resulted in an adjustment disorder with mixed anxiety and depressed mood. The injuries to the plaintiff, which involved a significant permanent impairment of her back, are to be viewed in their likelihood of occurrence and effects as being to a physically immature teenager engaged in work duties of the lifting of heavy boxes and bending on a regular basis. Although there was a suggestion in the evidence of Dr Searle that the plaintiff was permanently unfit for all forms of work, including housework, I accept the dominant view in the medical evidence that she is partially incapacitated for work, but not as involving bending and lifting, so as to be fit to perform sedentary type work in an office situation, as she had been doing with Response Publishing, LA Accounts and Angela Thomas; she is unable to satisfy her career ambition to become an airline steward. On the domestic side, the plaintiff is able to manage the household with her three children but as requiring some regular minimal assistance with the heavier work such as cleaning, laundering and lawnmowing.

[95]

43 Mr Govan confirmed the initial telephone call on 9 December 1998 from Ms Northey and his conversation then with the plaintiff. He agreed he sent to the plaintiff a letter dated 14 December 1998 in which advice was stated "that if the medical evidence supports a degree of permanent impairment of your back and legs as a result of the injury then you will be entitled to bring a claim for lump sum compensation in addition to your entitlements to payment of weekly compensation and reasonable and necessary medical expenses." This letter contained the heading "Re: Your Compensation Claim" and contained no mention of common law, modified common law or damages - it is plain that it was concerned only with a potential claim for workers compensation benefits as distinct from modified common law damages under the Workers Compensation Act. A costs agreement was enclosed, reflecting the position under the Workers Compensation Act relating to compensation proceedings, together with authority forms to enable medical reports to be obtained. Indeed, in a file note made on 9 December 1998 Mr Govan recorded the approach from Ms Northey as concerning an injury to the plaintiff at work at "Gay-Lo(sic) Chester Hill at 12/97 started, 2/98 off work" from "n & c (nature and conditions) lifting, etc. Had been working for couple years". Mr Govan subsequently received the medical reports from Dr Rosenberg, Dr Wolfenden, Dr Blake and Dr Limbers, together with the various radiological reports, and said from those reports he formed the view that there was a very real prospect the plaintiff would not satisfy the thresholds in the Workers Compensation Act modified common law damages regime in s 151G to qualify for non-economic loss and in s 151H to qualify for economic loss. Nevertheless, Mr Govan did not seek another legal opinion or consult with counsel. He had concerns also that negligence may not be established against Go-Lo so as to support a common law claim because the plaintiff's injury did not arise from a frank incident other than from the nature and conditions of the work over a period and where there was a pre-existing medical condition in her back.

[139]

65 It maybe given, I think, and as the cases show, that it is generally more difficult to establish negligence in an employer from a system of work rather than as a result of a discrete incident in the workplace. And that is so because the system of work may well be safe for the average worker but unsafe for a particular worker due to, say, a constitutional condition aggravated by the work and where no discernible act or omission of the employer be shown to exist. Where injury be alleged, as here, from the nature and conditions of the work over a period of time with the presence of a pre-existing congenital fault it may be admitted that the difficulty in showing negligence is increased. That, in short, was the position taken by the present defendant. However, at the end of the day it is a question, in my view, of examining all the circumstances in a particular case to ascertain the true position. It is to be borne in mind also that liability in an employer arises where a plaintiff's injury is not only caused but is materially contributed to by the negligence of the defendant: see Purkess v Crittenden (1965) 114 CLR 164 and Tubemakers of Australia v Fernandez (1976) 50 ALJR 720; (1976) 10 ALR 303. It is sufficient in establishing negligence in the employer to show that its wrongful act may not be the sole cause of any injury as long as it is a contributing cause which is more than negligible; see Chapman v Hearse (1961) 106 CLR 112. And, as Purkess v Crittenden (114 CLR at 166 in para [4]) made clear: "...where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial ... "

[167]

85 It would, in my view, be a very rare situation in a professional negligence type action as here that a plaintiff would be found to have so contributed to her own loss. After all, and it is the present case, the plaintiff relied on the professional advice of the defendant through Mr Govan in guiding her as to appropriate and available action she could take in a situation where she had no knowledge or experience. She was dependent on that advice to enable the making of a rational and informed decision as to the best course to suit her position. Indeed, after the settlement at the conciliation conference on 1 September 1999 Mr Govan in a letter to the plaintiff of 2 September 1999 said "We regard the settlement as most satisfactory..." It was not until about September 2002, when her condition deteriorated and the defendant said nothing could be done and she should consult another solicitor, which she did, that Kells Lawyers and Ms Ens advised her as to her previous options against Go-Lo and so the present proceedings commenced after those lawyers further investigated her potential claim. However, by then it was more than three years since the lump sum settlement was obtained in September 1999, nearly five years since the injury in February 1998 and nearly two years since the common law limitation period expired in February 2001 - time was continuing to run as investigations of the plaintiff's condition and the relevant facts proceeded until 9 August 2005 when the present statement of claim was filed. To do as the defendant suggested would have required multiple proceedings, with their own attendant risks, in both the Compensation Court for revocation of the election and in this Court for an extension of the limitation period and then, if successful, a further action in this Court for damages against Go-Lo. The defendant would thereby avoid any exposure to liability but where he was, on Ms Ens advice and as it has proven to be, liable to the plaintiff for professional negligence. Time was against the plaintiff in taking those other courses.

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Judgment (219 paragraphs)

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