THE COUNCIL OF THE MUNICIPALITY OF SHELLHARBOUR v EZZI

DAMAGES - Whether trial judge failed to properly allow for pre-existing disability in awarding general damages - Effect of terminal cancer. Held The trial judge had failed to properly allow for the effects of the plaintiff's pre-existing condition and since the effects of the accident had by the date of the trial been largely overtaken by the terminal cancer there should be a reduction in the award of general damages.

Wyong Shire Council v Shirt (1980) 146 CLR 40 Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 Heskell v Continental Express [1950] 1 All ER 1033 Jobling v Associated Dairies Pty Ltd [1982] AC 794.

Priestley JA I have had the benefit of reading in draft the reasons of Handley JA in this appeal. Except as to one matter I agree fully with his reasons.

The one matter on which I have formed a different opinion from Handley JA concerns the element in the judgment figure allowed by the trial judge for pain, suffering and loss of the amenities of life. To a considerable extent this is a matter of impression on the relevant materials. Although I see force in the considerations taken into account by Handley JA in reaching his conclusion that the trial judge was in error on this matter, it does not strike me, even taking into account those considerations, that the figure of $30,000 which the trial judge thought appropriate was outside the range of figures within which a judge could reasonably operate when considering the respondent's particular circumstances.

This leaves the $269.60 referred to by Handley JA as the only amount in regard to which I differ from the trial judge. In the overall context of this case, this amount seems to me to be more appropriately treated by being corrected under the slip rule.

Handley JA This is an appeal by the defendant from a judgment for the plaintiff for $63,802.77 entered by JB Phelan DCJ in an occupier's liability case. The appellant has challenged the judgment on grounds going to both liability and damages.

On 16 February 1989 at the time of the accident which gave rise to the proceedings the plaintiff was a teacher employed by the Department of Education at Warilla High School near Wollongong. On that day pupils of the school were engaged in a carnival at Oaks Flats swimming pool which was owned and occupied by the appellant.

The plaintiff was walking along the side of the pool supervising the swimmers in the interests of their safety when she alleges that the toe of her right sandal became caught on a slightly elevated section of the concrete paving which surrounded the pool. She says she momentarily lost her balance but managed to jerk herself up again but in the process injured her back. She immediately felt pain in her back but remained at the pool and completed her duties for the day.

There was an issue at the trial as to exactly where the accident occurred. The plaintiff indicated an area of broken cement which was shown in some of the photographs in evidence. The concrete slabs tended to rise or fall creating a vertical gap between adjoining slabs. The questions in issue included the extent of that gap and its location and whether the plaintiff tripped on the broken section or elsewhere.

The trial judge had no doubt that on the probabilities the plaintiff fell where she says she did or very close to it. The plaintiff said that the vertical gap where she fell was between an inch and an inch and a half. Some of the photographs suggested that the gap was almost the diameter of a twenty cent piece or a little over an inch. On the other hand measurements taken on behalf of the defendant shortly after the accident suggested that the gap was only about ten millimetres, approximately one third of the diameter of a twenty cent coin.

As the trial judge recorded a strong attack was made on the plaintiff's evidence on the issue of liability. Her evidence as to the accident, its cause, and the precise spot where it occurred was challenged and the defendant emphasised that there was no direct eye witness corroboration of her evidence on these issues. The trial judge found that the plaintiff was a reliable witness who generally endeavoured to do her best to tell the truth. He found that some of her evidence on the medical issues was not satisfactory but concluded that she had not attempted to mislead the Court.

He was inclined to accept that at the time of the accident the vertical gap where the plaintiff fell was in the vicinity of about twenty millimetres but said that even if the gap was only ten millimetres "it represent[ed] a foreseeable preventable risk". He concluded that it did not matter a great deal whether the plaintiff tripped on a broken or unbroken section of the concrete.

Counsel for the appellant submitted in this Court that because some of the plaintiff's evidence on the state of her back and her pre-existing disabilities due to her back pain was inaccurate in material respects, the trial judge had fallen into error in accepting her uncorroborated evidence as to the occurrence, the manner, and the place of the accident. He invited this Court to set aside the trial judge's findings on these issues favourable to the plaintiff and enter judgment for the defendant.

It is true that there is no direct eye witness corroboration of the plaintiff's evidence on these issues. However the trial judge found that on the day in question an unidentified woman reported to Mr. Lord, the defendant's pool manager, that an accident had occurred, that someone had been injured as a result and pointed to the general area where it had occurred. As a result Mr. Lord was able to take measurements of the vertical gap between the concrete slabs in the area pointed out to him and found that it was of the order of ten millimetres.

Moreover in the opinion of Dr. Riordan a bone scan of the plaintiff's spine taken after her admission to Port Kembla Hospital following the accident confirmed his clinical impression of a crush fracture of the plaintiff's tenth

URJHE COUNCIL OF THE MUNICIPALITY OF SHELLHARBOUR v EZZI (Handley JA) 3

thoracic vertebra. Dr. Henke subsequently reported that x-rays of the plaintiff's thoraco-lumbar spine showed evidence of crush fractures of the lower thoracic vertebrae including T10, T11 and T12.

The plaintiff suffered from pre-existing spinal osteoporosis and kyphoscoliosis involving curvature of her spine which made her vulnerable to injury and this explains how her jerking action without a fall caused these crush fractures. The doctors evidently considered that the plaintiff's crush fractures were consistent with her history of a sudden jerking action without a fall and there was no medical evidence to the contrary.

Counsel for the appellant relied on the fact that the medical records and reports of the plaintiffs general practitioner, Dr. Duncan, revealed that the plaintiff had not associated her back pain with any accident at the swimming pool, or even reported the occurrence of the accident to Dr. Duncan until many weeks after the event. However the plaintiff did report the accident to Dr. Riordan on 27 February only eleven days later.

The plaintiff's evidence as to the accident was therefore supported by the existence of the crush fractures, by her history to Dr. Riordan eleven days later and by the complaint made by the unidentified woman to the pool manager on the day of the accident itself. In these circumstances this Court is not entitled to disturb the findings of the trial judge that the accident occurred as the plaintiff said it did, especially as those findings were based on his assessment of her credibility and reliability in the witness box.

The trial judge held, as already mentioned, that a vertical gap between adjoining concrete slabs in the walking areas surrounding the swimming pool created a foreseeable preventable risk. There was no challenge to these findings. However the appellant challenged the trial judge's conclusion that it was in breach of the general duty of care it owed to persons such as the plaintiff lawfully using the swimming pool complex. See Australian Safeway Stores v Zaluzna (1987) 162 CLR 479. The trial judge's ultimate findings on the issue of negligence were: "Something should and could have been done about [the foreseeable risk] by way of warning or by way of maintenance. Indeed the evidence was that the procedure was available whereby this danger could have fairly readily been removed."

It was common ground that the defendant had not given any warning to persons such as the plaintiff of the existence of this risk. However there was no evidence from the plaintiff that she would have noticed any warning signs or that if she had the accident would not have occurred. In fact she said "we had to walk along the side of the pool... and keep your eye on the children the whole time." Accordingly the trial judge's decision on liability cannot in my view be supported on the ground that the appellant's failure to give appropriate warning of the uneven surface of the concrete paving caused this accident.

The evidence disclosed that the pool had been constructed about 1965 and that the soil below the concrete slabs was such that it tended to expand following wet weather and contract following dry weather as it took up or lost moisture. As a result the slabs moved up and down in relation to each other causing the uneven surface.

At one stage during the trial the plaintiff sought to establish a case based on some expert evidence given by an architect that the Council had been guilty of negligence in the original construction of the pool. However I am satisfied that the cross-examination of this expert by counsel for the defendant effectively

disposed of that ground of negligence, and this no doubt explains why it was not mentioned by the trial judge in his reasons for judgment.

As previously mentioned the trial judge held that the risk created by the uneven surface of these concrete slabs was preventable. There was evidence from the architect called for the plaintiff that it would have been feasible for the projecting corners of the slabs to be cut off by jack hammers or ground down. There was also evidence from the Council Safety Officer that it was "a simple matter" to chamfer off the projecting edges of the slabs, that it would not take "very long" to do such work and that it would only cost "a couple of hundred dollars". This evidence fully supported the trial judge's finding that the risk was preventable and that something should and could have been done about it by way of maintenance. In my opinion that evidence coupled with the finding that the risk was foreseeable established that the Council was negligent in failing to remove that risk. See Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. In my opinion therefore the appeal on the issue of liability fails.

The damages awarded at the trial comprised $33,802.77 for loss of wages, hospital and medical expenses and $30,000 for general damages. There was no claim or award for future economic loss. The appellant challenged both components of the award. The $33,802.77 comprised:

Hospital expenses 15,006.30 Rehabilitation 1,108.00 Medical Expenses 6,134.88

Details of the plaintiff's loss of wages and out of pocket expenses were obtained from the GIO as the worker's compensation insurer for the Department of Education. The list was admitted in evidence without objection. Counsel for the defendant then had the following "agreement" noted on the transcript:

"Tt might be helpful to note the agreement of a quantum of the past period of wage loss if your Honour found in the result of the accident of $11,553.59. The balance of the medical treatment, again if your Honour were to attribute to the accident that amount would be $22,249.18 for the out of pocket expenses [Sic]."

It is apparent that the defendant conceded at the trial that the plaintiff had lost the wages and incurred the out of pocket expenses recorded on the list (ExM) and there was no dispute as to quantum but the defendant did not concede that those losses were caused by the accident. The trial judge found:

"Tt is difficult to assess the actual impact of the accident on her, having regard to the multiple medical problems and the major cancer problem she now faces. In the end result, bearing in mind those various matters in my findings, it seems to me that the various expenditures and loss which have been included in Ex(M) flow as a direct consequence of this accident."

The appellant submitted that there was no evidence to support these findings or in the alternative the findings were incorrect and that this Court should interfere and set them aside. With one exception to which I will refer later there is nothing in the evidence which suggests that any of the periods off work occurred or any of the out of pocket expenses were incurred either prior to the accident, or later as a result of the plaintiff's cancer or for any other extraneous reason. The appellant's submission was that the trial judge and this Court could

URJHE COUNCIL OF THE MUNICIPALITY OF SHELLHARBOUR v EZZI (Handley JA) 5

not properly be satisfied that the whole, or any particular part, of the wage losses and out of pocket expenses flowed from the accident and the resulting aggravation to the plaintiff's pre-existing back condition, and would not have been lost or incurred in any event.

There is no doubt that before the accident the plaintiff was already suffering from an existing condition of spinal osteoporosis and kyphoscoliosis which were already causing her significant pain and disability. It will be necessary in due course to refer to the relevant evidence in some detail. Nevertheless Dr. Riordan reporting on his examination and treatment of the Plaintiff between 27 February and 16 March 1989 said that the accident had exacerbated her pre-existing condition and "this had aggravated the pain quite significantly". He also expressed the view that there was a risk of further collapse fractures occurring in the future. On 5 May 1989 Dr. Henke reported to the GIO "clearly the crush fractures will complicate the already existing pathology and therefore increase the possibility of further symptoms". Finally Dr. Dan reported on 16 October 1989 that the crush fracture to her tenth thoracic vertebra had "increased the scoliotic curve and related symptoms".

The absences from work with consequent loss of wages occurred over a period of some five months following the accident which, as I have already mentioned caused crush fractures to three of the plaintiffs lower thoracic vertebrae. Treatment for these fractures and associated rehabilitation resulted in extensive periods of hospitalisation for the plaintiff during that period. There is no suggestion that the plaintiff's pre-existing back condition had caused her to be hospitalised for treatment in the years prior to the accident. In my opinion the plaintiff established a clear prima facie case in respect of all "special" damages other than the wage loss for the short period in September 1989 previously referred to. Purkess v Crittenden (1965) 114 CLR 64 decided that in situations such as this the evidentiary, but not the legal, burden of proof lay with the defendant. In the joint judgment the Court said at 16B:

".. it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity.... Both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence... which if accepted would establish with some reasonable measure of precision what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress were likely to be."

In the present case there was no such evidence either in the cross-examination of the plaintiff's witnesses or in the defendant's own case. It is true that the plaintiff's pain and disabilities at any one time during this period would have included a component due to her pre-existing condition, and that to an unknown extent she would probably have incurred some medical expenses in any event in seeking to control or alleviate the pain and disabilities due to her back condition.

In one sense it could be said that the plaintiff's pre-existing back condition and its aggravation as a result of the accident were both concurrent causes of the wages lost and expenses incurred during this period. However the existence of a concurrent cause does not relieve the tortfeasor from responsibility for loss. It is well settled, as Devlin J said in Heskell v Continental Express [1950] 1 All ER 1033 at 1047:

"Where the wrong is a tort it is clearly settled that the wrongdoer cannot excuse himself by pointing to another cause. It is enough that the tort should be a cause and it is unnecessary to evaluate competing causes and ascertain which of them is dominant."

There is however one period of wages loss which is in a different position. The plaintiff had a further accident at work on 12 September 1989 when she slipped on a polished floor at the school. As a result she missed fifteen hours of work for which she made a WorkCover claim and received $269.60. The plaintiff did not attempt to establish that the February accident caused or contributed to the accident in September. In my opinion this amount should not have been allowed and the damages should be reduced accordingly.

There remains for consideration the award of $30,000 as general damages. The judge's reasons for awarding this sum were as follows: "Bearing in mind the fact that but for this accident the plaintiff would have been spared much of the pain and problems which she has had over the last few years and will in the future have (at least in part) due to this accident, I think an appropriate amount for general damages is the sum of $30,000."

The appellant submitted that the trial judge in awarding this sum failed to properly allow for her pre-existing back condition and the full extent of the pain and disability that this was already causing prior to the accident.

The judge found that prior to the accident the plaintiff had not had a particularly happy medical history although despite it she had apparently led a fairly active life and had continued to play tennis until shortly before the accident. He said that the plaintiff in her evidence tended to suggest that her prior history of back disability was intermittent and not particularly serious but that the evidence demonstrated that this was not a complete picture of her situation at all. Nevertheless he found that prior to her accident the plaintiff was not affected to the same degree either in frequency or degree by her back condition as she was after the accident. He also recognised that it was difficult to assess the actual impact of the accident on her having regard to the multiple medical problems she had before the accident and the major cancer problem she now faced.

The appellant submitted that in two respects the judge's findings as to her pre-accident condition were wrong and that these errors vitiated his award of general damages. The trial judge found that the first complaint of "severe back pain" made by the plaintiff to Dr. Duncan was made on 21 February 1989 following the accident and he held that the plaintiff's history given to Dr. Riordan on 27 February supported that view.

Counsel for the appellant submitted that the trial judge had misunderstood the evidence in Dr. Duncan's clinical notes and that these revealed that the plaintiff had complained to the Doctor of "severe back pain" on 17 November 1988. The photocopy of Dr. Duncan's clinical notes in the appeal book appears to show such an entry and to support counsel's submission. After the Court had reserved its decision I checked the original exhibit and when I did so it was apparent that the entry in question did not relate to a visit to Dr. Duncan on 17 November 1988 but to such a visit on 21 February after the accident. The stamped date 21 February 1989 in the original exhibit was not picked up in the photocopy in the appeal book. The trial judge was therefore perfectly correct in noting that the first recorded complaint of severe back pain post-dated the accident.

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Nevertheless the clinical notes do indicate quite clearly that the plaintiff was suffering from chronic back pain of a lesser degree during 1987, 1988 and 1989 prior to the accident. The Doctor noted on 13 February 1989 "pain lower thoracic area again - ten days". Moreover Dr Riordan on 27 February recorded the following history from the plaintiff:

"Mrs. Ezzi had a long history of back pain. This had been much more severe over the four weeks prior to presentation. There had been some exacerbation when she had tripped and jarred her back some two weeks before the consultation and this aggravated the pain quite significantly".

Following the accident the plaintiff received extensive hospital, medical and rehabilitation treatment over a five month period before returning to work on a part time basis during July and then on a full time basis in October. However she was diagnosed as having breast cancer in February 1990 and then underwent major surgery involving the removal of a breast. This was followed by a course of chemotherapy. She returned to full time duty in April 1990. A year later Dr. Clingan, the treating surgeon, gave a guarded prognosis although at that stage secondary cancers had not appeared. Unfortunately these were diagnosed shortly afterwards and by June this year she had been forced to give up work and by late July she was receiving treatment with morphine for the pain from the cancer. By the end of the trial the plaintiff had only a limited life expectancy.

It is clear, as the judge found, that the plaintiff's evidence in chief and the history she gave the various doctors who examined her for medico-legal purposes significantly understated the extent to which she was experiencing pain and disability in her back prior to the accident. Thus on the basis of the history received from the plaintiff Dr Deveridge who qualified for the plaintiff reported that prior to the accident the plaintiff's condition was causing only minimal symptoms and on the basis he reported at as a result of the accident the plaintiff had suffered a permanent loss of 55% of the effective use of her back. It is clear however as the Doctor himself acknowledged in cross-examination that his opinion would be flawed if it were based, as it was, on an inaccurate history.

The appellant's challenges to the judge's award based on alleged mistakes of fact have failed. Nevertheless it seems to me, with respect, that his Honour's award does not properly reflect the existence of the plaintiff's long standing and progressive back condition. While the accident aggravated and accelerated this condition the plaintiff is only entitled to be compensated for that aggravation and acceleration. Within five months of the accident the plaintiff had recovered sufficiently to resume part time duty and within eight months had returned to full time duty. While she continued to suffer the effects of the aggravation and acceleration of her condition, the worst effects were confined to this closed period in 1989. By February 1990 she had been diagnosed as suffering from breast cancer and by June 1991 that disease had progressed to the stage where she had to give up work and a month later she was receiving morphine for the cancer induced pain.

It is clear therefore that by July this year the effects of the accident on her pre-existing condition had been largely overtaken by her cancer and this sad fact must necessarily be reflected in a significant diminution in the compensation to which she would otherwise have been entitled. See Jobling v Associated Dairies Pty Ltd [1982] AC 794.

In these circumstances I have reached the conclusion that the award of $30,000 for general damages is generous to the point of being erroneous and that this Court must intervene. I would therefore set aside that award and substitute an

award of $15,000. Although in my opinion the appeal succeeds to that extent nevertheless the appellant failed entirely on the issue of liability and almost entirely on the other major issue relating to damages. In my opinion therefore the following order should be made:

2. Set aside the judgment in favour of plaintiff for $63,802.77 and substitute a judgment for $48,533.17 to take effect from 26 July 1991.

3. The defendant to pay the plaintiff's costs of the trial.

4. The appellant to pay one half of the respondent's costs of the appeal.

Counsel for the appellant: AS Morrison Solicitors for the appellant: Tesoriero Kwan Counsel for the respondent: D Stewart

Solicitors for the respondent: Lawson Andonovski and Co