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STATE GOVERNMENT INSURANCE COMMISSION v ALICE HERTAOAKLEY - BC9001537

SUPREME COURT OF WESTERN AUSTRALIA FULL COURTMALCOLM (1) CJ, WALLACE (2) AND KENNEDY (3) JJ

7 of 1989

18 October 1989, 17 January 1990

BC9001537 at 1Damages -- negligence -- personal injuries -- causation -- injury received in motor vehicle accident laterexacerbated by subsequent injury at work -- damage sustained in subsequent accident included aggravation ofearlier injury -- liability of defendant.

Cases referred to in judgment: Faulkner v Keffalinos (1970) 45 ALJR 80 Fishlock v Plummer [1950] SASR 176 Leshkev Jeffs [1955] QWN 67 Porter v Tisco Pty Ltd [1964] QWN 14 Purkess v Crittenden (1965) 114 CLR 164 Pyne vWilkenfield (1981) 26 SASR 441 Watts v Rake (1960) 108 CLR 158 Weiland v Cyril Lord Carpets Pty Ltd [1969] 3All ER 1006

Cases also cited: Jones v Dunkel (1959) 101 CLR 298 Martin v Isbard (1946) WALR 52 Rayson v Drilling Corporationof Aust; Supreme Court of Western Australia; unreported; Library No 5268; delivered 14th February 1984 Rothwell vCaverswall Stone Co Ltd (1944) 2 HER P 350 Schuster v Signorilo; Australian Torts Reporter (1987) 69093 Warren vCoombes (1979) 142 CLR 531

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Malcolm CJ

This is an appeal from the judgment of the learned trial Judge in the District Court delivered on 22nd December 1988by which he gave judgment against the appellant in favour of the respondent for the sum of $83,610.00 damages forpersonal injuries.

The damages were awarded in respect of injuries suffered by the respondent in a motor vehicle accident on 2nd August1981. The injury suffered was a soft tissue injury in the region of the cervical spine, which left her with some permanentdisability of mild severity. The respondent was a nurse. She was able to resume work after the accident. While workingas a nurse at Warren District Hospital on 7th August 1984 the respondent was involved in an accident while she wassupporting a geriatric patient. Following this second accident the respondent was totally incapacitated for work for aperiod three months. By March 1987 she was again fit for work, but she was advised to avoid heavy lifting and excessbending. The detailed facts are set out in the reasons for judgment to be published by Wallace J.

The major issue at the trial was whether and, if so, to what extent the respondent's disability and damages following thesecond accident could be said to be caused or contributed to by the disability caused by the first accident and, therefore,

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caused by the negligence of the appellant. The finding of the learned Judge on that issue was : "I am also drawn to theconclusion in the light of Mr Anastas' evidence that as a result of the incident at work on the 7th August 1984 when thepatient pulled the plaintiff's arm, the plaintiff suffered injury to the left side of her body and the injury received in themotor vehicle accident was exacerbated to the extent that her disability is and since August 1984 has been due inapproximately equal proportions to the motor vehicle accident and her work related accident."

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The appellant appeals against that finding and the consequent award of damages based upon it on the following ground:"The learned Trial Judge's finding that the Respondent's work disability, loss of amenities and future medical andpharmaceutical expenses are and since 1984 had been due in approximately equal proportions to the motor vehicleaccident and her work related accident was against the evidence and the weight of the evidence when he should havefound that the Respondent's abovementioned heads of damages were substantially if not entirely due to the work relatedaccident on the 7th August 1984."

The challenged finding made by the learned Judge was clearly based on acceptance on this issue of the evidence of MrNC Anastas, an orthopaedic surgeon, and the rejection of the evidence of Mr BAR Stokes, a neurosurgeon, whoexpressed a contrary opinion.

There are difficulties with the finding made by the learned Judge. There is no express finding that there was a causalrelationship between the appellant's negligence, which caused the respondent's disability as a result of the first accident,and the disability suffered as a result of the second accident. There is no express finding that the disability caused by thefirst accident in turn caused or contributed to the second accident or the disability suffered as a result of it. There is nofinding concerning the degree of disability suffered as a result of the first accident. The only finding made by thelearned Judge was that the respondent's disability as a result of the second accident was due in approximately equalproportions to the first accident and the second accident. Thus, the process of reasoning adopted by the learned Judgeseems to have been to look first at the total disability as a result of the two accidents. He then assessed that the originaldisability had been exacerbated by the second accident and that there was a further disability as a result of it. Theapportionment was made on the basis that the exacerbated disability from the first accident was due to that accident andthe "new" disability resulting from the second accident each represented 50 per cent of the total disability.

In a report dated 16th March 1987 Mr Anastas noted that the respondent was still having symptoms as a result of thefirst accident, which were aggravated by the second accident. She was still having symptoms on the left side of her neckwith radiation to her left arm as a result of the injury in the second accident and, in Mr Anastas's opinion, this aspectshould be considered "a new injury". He said: "The disability that she has in her neck is, in part, due to the motorvehicle accident on the 1st August, 1981 and, in part due to the injury that she sustained on the 7th August 1984 and Iwould portion the disability to being 50% due to the vehicle accident on the 1st August, 1981 and 50% due to the otherinjury on 7th August, 1984."

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Mr Anastas explained in his oral evidence that there had been aggravation of the first accident's symptoms as a result ofthe second accident and, in particular, aggravation of the pain on the right side of the respondent's neck, with radiationdown her right arm. This followed her taking the full weight on her left of a patient who slipped and pulled at her leftarm.

In cross-examination Mr Anastas was asked only one direct question about his assessment of the respective disabilitieswhich is at the end of the following passage: "I think on the next page of your report you make all that quite clear in theparagraphs near the bottom of the report, when you say, `She's still having symptoms on the left side of her neck withradiation to her left arm as a result of the injury at work, and this aspect should be considered as a new injury'. - Yes. Asyou saw it, she was fit for duty, but she should avoid heavy lifting and excess bending, is that right? - Yes. So she wasfit then, when you last saw her; she was fit at 16 March 1987. Any difference in the level of fitness between the twodates? - Well, she was less fit on 16March1987. Less fit, and that's because of? - The added injury that she had at work.

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On the left-hand side? - Yes. On the last page of your report of the 3rd, you talk about - you split the disability up,fifty-fifty. Would that be right? Would it be fifty-fifty, or is the injury on the left much more significant than the one onthe right? - Well, I wouldn't have said fifty-fifty if I didn't think it was right."

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Mr Anastas later explained that when he saw the respondent in March 1987 she was fit for work with some restrictions,whereas when he last saw her in October 1983 before the second accident, she was fit for work without as manyrestrictions. In his opinion, the injury suffered to the left side of her body in 1984, looked at separately, was no worsethan the injury suffered to the right side of her body in 1981. Regarding each separately, each of them could bedescribed as of mild severity.

In re-examination the following exchange occurred between the learned Judge and Mr Anastas: "The situation really ina nutshell is that whether she would have been injured to the same extent if she had not suffered the original soft tissueinjury, you see? - Yes and I don't know the answer to that question either. Don't you? That is what I am going to beasked to say? - I mean - I will say this, your Honour, that if you have had an injury to your neck, certainly you are morepredisposed to another injury. I mean, it takes less force to injure your neck. -- Don't I know it? - Yes. Don't we allreally? - Yes."

Counsel for the respondent then continued his re-examination: "MR ROBINSON: You said then, I think, Mr Anastas, oryou agreed with his Honour, once you have had an injury to the neck it takes less force to have another injury? - Toproduce symptoms. Yes. Is that part of the fifty-fifty computation that you've done in your mind? - Well, I didn't takeinto account the force of the injury in the motor vehicle accident or the force that she sustained at work in August 1984.It was just my assessment of her symptoms and on the history that she had given and on the basis of previousconsultations it was fifty-fifty: it might well be sixty-forty either way. In the course of your career in orthopaedics, isthis the type of thing that you've seen from time to time where people have had two whiplash or one whiplash injuryfollowed by a further trauma? - Yes. Yes, we see it often enough. I think you mentioned the word `susceptibility'. Wasthat your word or is that one I had in my mind? - I can't recall. It meant the same thing. When you stretch the ligamentson one occasion with a whiplash injury in the neck, does a further stretching cause not only that it takes less force toinjure it again, but that it causes more injury the second time? - Well, it aggravates the symptoms. All I can say is frommy experience in a number of cases the symptoms from the aggravation settle and also in just as many cases thesymptoms from the aggravation do not settle. We've gone 3 years further down the track since the incident in thehospital and she is still complaining of symptoms, so do you think it right, now, in 1988 to say that what you said a yearor so ago about the fifty-fifty is still your opinion as to a fair estimate or - ? - Yes. Unless there has been any significantchange, yes. Although as you say, it could be sixty-forty either way? - Yes, that's right."

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In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a furtherinjury the position is as follows: (1) Where the further injury results from a subsequent accident, which would not havenot have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the addeddamage should be treated as caused by that negligence; (2) Where the further injury results from a subsequent accident,which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because ofaggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as causedby the defendant's negligence; and (3) Where the further injury results from a subsequent accident which would haveoccurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of theearlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.

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Authority for the first two propositions may be found in Fishlock v Plummer [1950] SASR 176 per Mayo J at 181;Porter v Tisco Pty Ltd [1964] QWN 14; Weiland v Cyril Lord Carpets Pty Ltd [1969] 3 All ER 1006; Pyne vWilkenfield (1981) 26 SASR 441. The second proposition covers what have been called the "increased vulnerability"cases: Lunz, Assessment of Damages for Personal Injury and Death (2nd Ed 1983) at 140. In Pyne v Wilkenfield, supra,

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at 442 Zelling J held that such cases are concerned with: "...an accident arising from an independent cause whichincreases the damage caused by the first accident but does not arise out of it."

In such a case the plaintiff does not recover the full damages resulting from the second accident, but only those extraconsequences of the second injury due to the existence of the first injury.

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In my opinion the present case falls within the category covered by the second proposition. The evidence disclosedincreased vulnerability. Before the first accident the plaintiff tended to use her right side. Her own evidence was, that asa result of the first accident, she used her left side instead of her right. The second accident occurred under thesecircumstance. The effect of the evidence of Mr Anastas was that, as a result of the first accident, the respondent wasexposed to a greater risk of injury when assisting patients than before it. The aggravation of the first injury in the secondaccident involved a materialisation of that risk: cf Leshke v Jeffs [1955] QWN 67; approved by Windeyer J in Faulknerv Keffalinos (1970) 45 ALJR 80 at 85.

Where a plaintiff suffers more than one accident and it is argued that the plaintiff's disabilities should be regarded as theseparate consequences of concurrent and independent causes only one of which is the conduct of the defendant difficultquestions of fact occasionally arise. Thus, in Watts v Rake (1960) 108 CLR 158 at 160 Dixon CJ said: "If thedisabilities of the plaintiff can be disentangled and one or more traced to causes in which the injury is sustained throughthe accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operationof the accident as a contributory cause."

This passage was cited by Windeyer J in Purkess v Crittenden (1965) 114 CLR 164 at 171. At 170-171 in that caseWindeyer J stressed that in a personal injury case the ultimate burden is on the plaintiff to establish the extent of hisinjuries caused by the conduct of the defendant. His Honour first considered the progressive disease cases, where theplaintiff may in any event have been disabled in the same way as he was as a result of the tort. He then went on to say:"In Watts v Rake there is also a reference by Dixon CJ to another situation, that which arises when it is said theplaintiff's disabilities should be regarded as the separate consequences of concurrent and independent causes only one ofwhich is the conduct of the defendant. Such cases can no doubt exist. But again the defendant is not relieved of theresponsibility for the consequences of his conduct because the plaintiff would not have suffered as he did unless othercontributory factors had existed. The ordinary conclusion when a man suffers a hurt is that all the consequences thatfollow it are attributable to the events that immediately caused it. If it be suggested that this is not so, that some of theapparent consequences are not causally related to it, then some material is required to support that suggestion. It is inthis sense and at this stage that a burden of adducing evidence is upon the defendant."

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In my opinion, whatever the degree of disability caused by the first accident, the evidence of Mr Anastas, which wasaccepted, clearly supported a finding that on the balance of probability the respondent's disability after the secondaccident were caused or contributed to as to 50 per cent by the "new injury" suffered in the second accident and, as to50 per cent, by the old injury as aggravated by the second accident. In my view, on the basis of the authoritiescommencing with Fishlock v Plummer supra, it necessarily follows from the evidence of Mr Anastas that 50 per cent ofthe disabilities suffered after the second accident was caused by the first accident and attributable to the negligence ofthe appellant. This is because of her increased vulnerability, having regard to the pain and other symptoms following thefirst accident, which caused her to use her left arm instead of her right arm when lifting or assisting a patient. Thedisability was described by Mr Anastas in October 1983 and in her evidence as a permanent disability of mild severity.Whatever the precise degree of disability, it was aggravated in the second accident by reason of her increasedvulnerability when encountering the ordinary situations in her work, such as a geriatric patient slipping and grabbing herarm when being assisted. The disability suffered as a result of the first accident left her predisposed to aggravation.When that risk materialised it had the result that 50 per cent of her disability after the second accident was attributableto the first accident. Consequently, 50 per cent of the damages resulting from the second accident were correctlyattributable to the first. While not all the necessary findings were made by the learned trial Judge I consider that the

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obvious inference from the findings which he did make is that he would have found in this way.BC9001537 at 11

For these reasons I am of the opinion that the appeal should be dismissed.

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Wallace J

This is an appeal from a District Court assessment of damages in favour of the respondent as the result of injuriessuffered in a motor vehicle accident on 2nd August 1981. At that time, the respondent was working as a trained nurse atHollywood Hospital. The injury suffered was diagnosed as a soft tissue injury in the region of the cervical spine. Thefull effect thereof was not felt immediately, for the respondent worked on the day of the accident although by theevening she was in a lot of pain, mainly in the neck region, and was suffering from a headache. Altogether she was offwork for 23 days but on returning to work continued to suffer neck pain which became quite severe by the end of theday and was accompanied by a severe headache. This condition did not improve and approximately two months afterthe accident, the respondent began to suffer pain in her right shoulder and down her right arm. She is naturally righthanded and found that the more she used her right arm, the more painful it became. She therefore commenced to use herleft arm as much as possible. In March 1982 she left her employment and took six weeks leave. With that period of resther pain symptoms improved.

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The respondent then obtained employment as a nurse at St Anne's Hospital where she worked until November 1983.She continued to suffer the effects of the soft tissue injury. On 20th July 1982 she saw surgeon Nicholas C Anastas,who recorded her complaints of a constant dull ache at the back of her right shoulder, and, about every two to threedays, numbness in her right hand. She was also suffering from two to three severe headaches a week which requiredanalgesics for relief. Examination revealed her cervical spine had a good range of movement but the extreme extensionwas painful. There was tenderness about the spinous process of the first thoracic vertebra and in the right trapeziusmuscle. She had altered sensation to pin prick on the back of both forearms. Manipulation of her cervical spine undergeneral anaesthetic was recommended. At that stage the respondent was under the care of her general medicalpractitioner Dr Strickland.

On 17th November 1982 the respondent was admitted to St John of God Hospital, Belmont, for manipulation of hercervical spine under general anaesthetic and decompression of the ulnar nerve behind her right elbow. She wasdischarged two days later. On 6th December 1982 the respondent felt that her neck was much better. She had had onlyone headache over the previous week. She was concerned about some numbness around her elbow following theoperation, but it was subsiding. Examination found her cervical spine with a good range of movement but again theextreme extension caused discomfort and there was tenderness about the spinous process on the second thoracicvertebra. The wound on her right elbow was well healed. She was fit to return to work on 7th December 1982.

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Mr Anastas again reported on 8th March 1983 that the respondent complained of increasing pain in her neck on the leftside. Over the previous four weeks the respondent also stated that sometimes she had a dull ache down her right arm,but no numbness. She complained of tenderness at the back of her neck radiating to her left arm. She was still havingheadaches. Examination showed the extreme of extension of her cervical spine still causing discomfort. Again there wastenderness over the spinous process of the seventh cervical vertebra and in the left trapezius muscle. On 30th May 1983Mr Anastas reported that whilst the respondent was fit for duty, she was still suffering the symptoms previouslymentioned 21 months after the motor vehicle accident. He felt that she would be left with some permanent disabilityalthough there was the probability that, with time, her symptoms may improve rather than worsen.

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In September 1983, Mr Anastas was still of the opinion that the respondent had been left with a permanent disability ofvery mild severity which should not disadvantage her in the workforce. By October 1983 the respondent was stillsuffering from neck pain, pain radiating to her right shoulder and right arm with occasional numbness therein.Examination of her spine showed that the injury had not improved.

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The complicating feature of the learned Judge's damages assessment is that whilst working at the Warren DistrictHospital in August 1984, the respondent suffered a work-related accident while supporting a geriatric patient whichaggravated the pain on the right side of her neck with radiation down her right arm together with developing pain in herleft arm with radiation down that limb and the side of her neck. As at 16th March 1987, the respondent was fit for work,but she was advised to avoid heavy lifting and excess bending. In Mr Anastas' opinion, the disability in the respondent'sneck was in part due to the motor vehicle accident of 1st August 1981 and in part due to the injuries sustained on 7thAugust 1984. He apportioned liability for the disability equally between the two injuries. Cross-examined on hisapportionment Mr Anastas maintained his opinion.

In the opinion of surgeon BAR Stokes, however, who saw the respondent after the August 1984 accident, thesymptomotology involved was that of left-sided neck pain, left arm pain, inter-scapular pain and girdle pain. The patientmade virtually no complaint about injury to the right side of her body. However, he did think that she had told him thatshe ocassionally suffered ache around the right elbow and that was all. He did not think that there was any link betweenthe two injuries.

The second accident was work-related and for that the respondent claimed weekly payments under the WorkersCompensation Act which were about to reach the maximum amount allowable by the time his Honour's judgment wasdelivered. It is the appellant's contention that his Honour's acceptance of Mr Anastas' assessment is erroneous becausethe learned Judge should have found that the respondent's heads of damages for loss of amenities, work disability, andfuture medical and pharmaceutical expenses were substantially, if not entirely, due to the work-related accident of 7thAugust 1984.

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That contention was put before the learned Judge and rejected. After reviewing the evidence of many doctors who hadseen the respondent, his Honour expressed himself as follows: "I am also drawn to the conclusion in the light of MrAnastas' evidence that as a result of the incident at work on the 7th August 1984 when the patient pulled the plaintiff'sarm, the plaintiff suffered injury to the left side of her body and the injury received in the motor vehicle accident wasexacerbated to the extent that her disability is and since 1984 has been due in approximately equal proportions to themotor vehicle accident and her work related accident." Whilst it was submitted on behalf of the appellant that therespondent was exaggerating her disability, both in the past and present, the learned Judge considered her to be atruthful witness and accepted her evidence.

The appellant argues that as the medical evidence from Mr Anastas supported the fact that the respondent was fit forwork prior to the work-related accident, and unfit to work 3 months thereafter, the 50% liability for the heads of damagepreviously mentioned, must be erroneous. Furthermore, Mr Anastas did not know the answer to the question as towhether the respondent would have been injured to the same extent in the work-related accident if she had not sufferedthe original soft tissue injury. What he did say was that the motor vehicle accident which caused injury would havemade her more pre-disposed to subsequent injury in as much as, "it takes less force to injure your neck."

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Such an argument may be put forward in answer to the proposition that the work-related incident exacerbated therespondent's pre-existing condition for which the second employer was liable and not that of the original tortfeasor.Whilst the learned Judge has not made a finding of causal relationship between the two, it is by no means difficult toinfer that he fully appreciated the position. His Honour's reasons reveal a comprehensive appreciation of the medicalevidence. In other words, the evidence to support his Honour's finding was clearly before him and he accepted the

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respondent's account in regard thereto.

Whilst the grounds of appeal challenge the quantum of the learned Judge's order, no sufficient argument in supportthereof has been forthcoming. Accordingly therefore, for these reasons, I would dismiss this appeal.

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Kennedy J

I agree that this appeal should be dismissed and desire only to add a few comments of my own.

The first ground of appeal challenges the following finding of the learned trial Judge: "I am also drawn to theconclusion in the light of Mr Anastas' evidence that as a result of the incident at work on the 7th August 1984 when thepatient pulled the plaintiff's arm, the plaintiff suffered injury to the left side of her body and the injury received in themotor vehicle accident was exacerbated to the extent that her disability is and since August 1984 has been due inapproximately equal proportions to the motor vehicle accident and her work related accident."

This finding was based essentially upon a report of Mr Anastas, dated 16th March 1987, in which he wrote of theappellant: "On the history as given to me, this patient is still having symptoms, as a result of the motor vehicle accidenton 1st August, 1981. These symptoms were aggravated on the 7th August, 1984 and, as yet, she is not over thataggravation. She is still having symptoms on the left side of her neck, with radiation to her left arm, as a result of theinjury at work on 7th August, 1984 and this aspect should be considered as a new injury. As I see her today, she is fitfor duty, but she should avoid heavy lifting and excess bending. With respect to treatment, I would advise that shecontinue with exercises and analgesics as is necessary. This patient is left with a permanent disability in her cervicalspine and I would assess the disability of mild severity. The disability that she has in her neck is, in part, due to themotor vehicle accident on the 1st August, 1981 and, in part, due to the injury that she sustained on the 7th August, 1984and I would portion the disability to being 50% due to the motor vehicle accident on the 1st August, 1981 and 50% dueto the other injury on the 7th August, 1984."

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Mr Anastas was cross-examined on his assessment; but he was not moved to depart from it. The views which wereopposed to his own were not put to him. He said it was just his assessment of the respondent's symptoms, on the historythat she had given and on the basis of previous consultations. It is important to observe in this regard that the learnedtrial Judge considered the respondent "to be a witness of truth whose evidence is to be accepted". His Honour did notaccept the appellant's submission that the respondent was "in effect exaggerating her disability both in the past and atpresent and that she is not credit worthy". This was so, notwithstanding that the respondent, in claiming workers'compensation, had attributed her incapacity for work following that accident to the accident which occurred in thehospital.

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Mr Anastas said that, when he saw the respondent on 16th March 1987, she was not unfit, but she was fit with somerestrictions. When he saw her before her accident at the hospital, he said she was fit without as many restrictions. Hewent on to say that, if a person has an injury to his neck, he is certainly more predisposed to another injury, in that ittakes less force to injure the neck. It was argued for the appellant that if, immediately prior to the work associatedaccident, the respondent was fit for duty, then the effect of the accident was such as to create a new injury. In myopinion, that is to ignore the point that the respondent, although fit for work at the time, was more susceptible to injury,and to greater injury, as a result of her first accident.

Dr EF Farrelly, in his report of 10th September 1987, although perhaps commenting in an area which was strictly out ofhis field, confirmed that the consequences of the accident in the hospital in 1984 were "that much more serious by the

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pre-existing soft tissue injury sustained in the motor vehicle accident of 1981".

It is true that Mr BAR Stokes, a neurosurgeon, held a contrary view, being of the firm opinion that the symptomatologyarising from the hospital accident was not related to the traffic accident. It may even be that the weight of the evidence,from a reading of the transcript, favours the appellant. But it does not follow that this Court may now reject theevidence of Mr Anastas and accept that of Mr Stokes. This was a conflict between the medical evidence called by eitherparty which was for the trial Judge to resolve, and I am quite unpersuaded that it was not open to him to prefer theevidence of Mr Anastas. In my opinion, the first ground of appeal must fail.

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The second ground, which complains that the decision of the learned trial Judge was not a sound discretionaryjudgment, adds nothing to the first ground and must also fail.

I am similarly unpersuaded that the challenge by the appellant to the award of damages should succeed. Once again, thesuccess of this challenge, essentially, would depend upon the rejection of the evidence of Mr Anastas. In one respect,moreover, the award appears to me to have been excessively generous to the appellant insofar as his Honour limited therespondent's loss of future earning capacity to a period of 5 years only when she would have attained the age of 35years, allowing nothing for the possibility that, at some time in the future, the respondent might desire, or might need, toexercise her capacity for work.

In my opinion, although, in the end, the award appears to me to be somewhat high, it cannot be said that the amountawarded is, on the facts found by his Honour, outside the range of a proper discretionary judgment. I would dismiss theappeal.

Order

Appeal dismissed.

Mr PR Momber (instructed by Messrs Jackson McDonald) appeared for the appellant

Mr FM Robinson (instructed by Messrs McDonald and Sutherland) appeared for the respondent.

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