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1 of 1 DOCUMENT: Unreported Judgments WA 20 Pages

STATE GOVERNMENT INSURANCE COMMISSION v ALICE HERTA OAKLEY - BC9001537

SUPREME COURT OF WESTERN AUSTRALIA FULL COURT MALCOLM (1) CJ, WALLACE (2) AND KENNEDY (3) JJ 7 of 1989 18 October 1989, 17 January 1990
BC9001537 at 1 Damages -- negligence -- personal injuries -- causation -- injury received in motor vehicle accident later exacerbated by subsequent injury at work -- damage sustained in subsequent accident included aggravation of earlier injury -- liability of defendant. Cases referred to in judgment: Faulkner v Keffalinos (1970) 45 ALJR 80 Fishlock v Plummer [1950] SASR 176 Leshke v Jeffs [1955] QWN 67 Porter v Tisco Pty Ltd [1964] QWN 14 Purkess v Crittenden (1965) 114 CLR 164 Pyne v Wilkenfield (1981) 26 SASR 441 Watts v Rake (1960) 108 CLR 158 Weiland v Cyril Lord Carpets Pty Ltd [1969] 3 All ER 1006 Cases also cited: Jones v Dunkel (1959) 101 CLR 298 Martin v Isbard (1946) WALR 52 Rayson v Drilling Corporation of Aust; Supreme Court of Western Australia; unreported; Library No 5268; delivered 14th February 1984 Rothwell v Caverswall Stone Co Ltd (1944) 2 HER P 350 Schuster v Signorilo; Australian Torts Reporter (1987) 69093 Warren v Coombes (1979) 142 CLR 531 BC9001537 at 2

Malcolm CJ
This is an appeal from the judgment of the learned trial Judge in the District Court delivered on 22nd December 1988 by which he gave judgment against the appellant in favour of the respondent for the sum of $83,610.00 damages for personal injuries. The damages were awarded in respect of injuries suffered by the respondent in a motor vehicle accident on 2nd August 1981. The injury suffered was a soft tissue injury in the region of the cervical spine, which left her with some permanent disability of mild severity. The respondent was a nurse. She was able to resume work after the accident. While working as a nurse at Warren District Hospital on 7th August 1984 the respondent was involved in an accident while she was supporting a geriatric patient. Following this second accident the respondent was totally incapacitated for work for a period three months. By March 1987 she was again fit for work, but she was advised to avoid heavy lifting and excess bending. 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 the second 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 the conclusion in the light of Mr Anastas' evidence that as a result of the incident at work on the 7th August 1984 when the patient pulled the plaintiff's arm, the plaintiff suffered injury to the left side of her body and the injury received in the motor vehicle accident was exacerbated to the extent that her disability is and since August 1984 has been due in approximately equal proportions to the motor vehicle accident and her work related accident." BC9001537 at 3 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 and pharmaceutical expenses are and since 1984 had been due in approximately equal proportions to the motor vehicle accident and her work related accident was against the evidence and the weight of the evidence when he should have found that the Respondent's abovementioned heads of damages were substantially if not entirely due to the work related accident 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 Mr NC Anastas, an orthopaedic surgeon, and the rejection of the evidence of Mr BAR Stokes, a neurosurgeon, who expressed a contrary opinion. There are difficulties with the finding made by the learned Judge. There is no express finding that there was a causal relationship 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 the first accident in turn caused or contributed to the second accident or the disability suffered as a result of it. There is no finding concerning the degree of disability suffered as a result of the first accident. The only finding made by the learned Judge was that the respondent's disability as a result of the second accident was due in approximately equal proportions to the first accident and the second accident. Thus, the process of reasoning adopted by the learned Judge seems to have been to look first at the total disability as a result of the two accidents. He then assessed that the original disability had been exacerbated by the second accident and that there was a further disability as a result of it. The apportionment was made on the basis that the exacerbated disability from the first accident was due to that accident and the "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 the first accident, which were aggravated by the second accident. She was still having symptoms on the left side of her neck with radiation to her left arm as a result of the injury in the second accident and, in Mr Anastas's opinion, this aspect should be considered "a new injury". He said: "The disability that she has in her neck is, in part, due to the motor vehicle accident on the 1st August, 1981 and, in part due to the injury that she sustained on the 7th August 1984 and I would portion the disability to being 50% due to the vehicle accident on the 1st August, 1981 and 50% due to the other injury on 7th August, 1984." BC9001537 at 5 Mr Anastas explained in his oral evidence that there had been aggravation of the first accident's symptoms as a result of the second accident and, in particular, aggravation of the pain on the right side of the respondent's neck, with radiation down her right arm. This followed her taking the full weight on her left of a patient who slipped and pulled at her left arm. In cross-examination Mr Anastas was asked only one direct question about his assessment of the respective disabilities which is at the end of the following passage: "I think on the next page of your report you make all that quite clear in the paragraphs near the bottom of the report, when you say, `She's still having symptoms on the left side of her neck with radiation to her left arm as a result of the injury at work, and this aspect should be considered as a new injury'. - Yes. As you saw it, she was fit for duty, but she should avoid heavy lifting and excess bending, is that right? - Yes. So she was fit then, when you last saw her; she was fit at 16 March 1987. Any difference in the level of fitness between the two dates? - 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 on the right? - Well, I wouldn't have said fifty-fifty if I didn't think it was right." BC9001537 at 6 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 many restrictions. In his opinion, the injury suffered to the left side of her body in 1984, looked at separately, was no worse than the injury suffered to the right side of her body in 1981. Regarding each separately, each of them could be described as of mild severity. In re-examination the following exchange occurred between the learned Judge and Mr Anastas: "The situation really in a nutshell is that whether she would have been injured to the same extent if she had not suffered the original soft tissue injury, you see? - Yes and I don't know the answer to that question either. Don't you? That is what I am going to be asked to say? - I mean - I will say this, your Honour, that if you have had an injury to your neck, certainly you are more predisposed to another injury. I mean, it takes less force to injure your neck. -- Don't I know it? - Yes. Don't we all really? - Yes." Counsel for the respondent then continued his re-examination: "MR ROBINSON: You said then, I think, Mr Anastas, or you agreed with his Honour, once you have had an injury to the neck it takes less force to have another injury? - To produce symptoms. Yes. Is that part of the fifty-fifty computation that you've done in your mind? - Well, I didn't take into 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 previous consultations it was fifty-fifty: it might well be sixty-forty either way. In the course of your career in orthopaedics, is this the type of thing that you've seen from time to time where people have had two whiplash or one whiplash injury followed by a further trauma? - Yes. Yes, we see it often enough. I think you mentioned the word `susceptibility'. Was that your word or is that one I had in my mind? - I can't recall. It meant the same thing. When you stretch the ligaments on one occasion with a whiplash injury in the neck, does a further stretching cause not only that it takes less force to injure it again, but that it causes more injury the second time? - Well, it aggravates the symptoms. All I can say is from my experience in a number of cases the symptoms from the aggravation settle and also in just as many cases the symptoms from the aggravation do not settle. We've gone 3 years further down the track since the incident in the hospital and she is still complaining of symptoms, so do you think it right, now, in 1988 to say that what you said a year or so ago about the fifty-fifty is still your opinion as to a fair estimate or - ? - Yes. Unless there has been any significant change, yes. Although as you say, it could be sixty-forty either way? - Yes, that's right." BC9001537 at 7 In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows: (1) Where the further injury results from a subsequent accident, which would not have not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage 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 of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and (3) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first. BC9001537 at 8 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 v Wilkenfield (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 which increases 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 extra consequences of the second injury due to the existence of the first injury. BC9001537 at 9 In my opinion the present case falls within the category covered by the second proposition. The evidence disclosed increased vulnerability. Before the first accident the plaintiff tended to use her right side. Her own evidence was, that as a result of the first accident, she used her left side instead of her right. The second accident occurred under these circumstance. The effect of the evidence of Mr Anastas was that, as a result of the first accident, the respondent was exposed to a greater risk of injury when assisting patients than before it. The aggravation of the first injury in the second accident involved a materialisation of that risk: cf Leshke v Jeffs [1955] QWN 67; approved by Windeyer J in Faulkner v 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 the separate consequences of concurrent and independent causes only one of which is the conduct of the defendant difficult questions of fact occasionally arise. Thus, in Watts v Rake (1960) 108 CLR 158 at 160 Dixon CJ said: "If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injury is sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of 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 case Windeyer J stressed that in a personal injury case the ultimate burden is on the plaintiff to establish the extent of his injuries caused by the conduct of the defendant. His Honour first considered the progressive disease cases, where the plaintiff 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 the plaintiff's disabilities should be regarded as the separate consequences of concurrent and independent causes only one of which is the conduct of the defendant. Such cases can no doubt exist. But again the defendant is not relieved of the responsibility for the consequences of his conduct because the plaintiff would not have suffered as he did unless other contributory factors had existed. The ordinary conclusion when a man suffers a hurt is that all the consequences that follow it are attributable to the events that immediately caused it. If it be suggested that this is not so, that some of the apparent consequences are not causally related to it, then some material is required to support that suggestion. It is in this sense and at this stage that a burden of adducing evidence is upon the defendant." BC9001537 at 10 In my opinion, whatever the degree of disability caused by the first accident, the evidence of Mr Anastas, which was accepted, clearly supported a finding that on the balance of probability the respondent's disability after the second accident were caused or contributed to as to 50 per cent by the "new injury" suffered in the second accident and, as to 50 per cent, by the old injury as aggravated by the second accident. In my view, on the basis of the authorities commencing with Fishlock v Plummer supra, it necessarily follows from the evidence of Mr Anastas that 50 per cent of the disabilities suffered after the second accident was caused by the first accident and attributable to the negligence of the appellant. This is because of her increased vulnerability, having regard to the pain and other symptoms following the first accident, which caused her to use her left arm instead of her right arm when lifting or assisting a patient. The disability 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 increased vulnerability when encountering the ordinary situations in her work, such as a geriatric patient slipping and grabbing her arm 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 attributable to the first accident. Consequently, 50 per cent of the damages resulting from the second accident were correctly attributable 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. BC9001537 at 12

Wallace J
This is an appeal from a District Court assessment of damages in favour of the respondent as the result of injuries suffered in a motor vehicle accident on 2nd August 1981. At that time, the respondent was working as a trained nurse at Hollywood Hospital. The injury suffered was diagnosed as a soft tissue injury in the region of the cervical spine. The full effect thereof was not felt immediately, for the respondent worked on the day of the accident although by the evening she was in a lot of pain, mainly in the neck region, and was suffering from a headache. Altogether she was off work for 23 days but on returning to work continued to suffer neck pain which became quite severe by the end of the day and was accompanied by a severe headache. This condition did not improve and approximately two months after the accident, the respondent began to suffer pain in her right shoulder and down her right arm. She is naturally right handed and found that the more she used her right arm, the more painful it became. She therefore commenced to use her left arm as much as possible. In March 1982 she left her employment and took six weeks leave. With that period of rest her pain symptoms improved. BC9001537 at 13 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 three days, numbness in her right hand. She was also suffering from two to three severe headaches a week which required analgesics for relief. Examination revealed her cervical spine had a good range of movement but the extreme extension was painful. There was tenderness about the spinous process of the first thoracic vertebra and in the right trapezius muscle. She had altered sensation to pin prick on the back of both forearms. Manipulation of her cervical spine under general anaesthetic was recommended. At that stage the respondent was under the care of her general medical practitioner Dr Strickland. On 17th November 1982 the respondent was admitted to St John of God Hospital, Belmont, for manipulation of her cervical spine under general anaesthetic and decompression of the ulnar nerve behind her right elbow. She was discharged two days later. On 6th December 1982 the respondent felt that her neck was much better. She had had only one headache over the previous week. She was concerned about some numbness around her elbow following the operation, but it was subsiding. Examination found her cervical spine with a good range of movement but again the extreme extension caused discomfort and there was tenderness about the spinous process on the second thoracic vertebra. The wound on her right elbow was well healed. She was fit to return to work on 7th December 1982. BC9001537 at 14 Mr Anastas again reported on 8th March 1983 that the respondent complained of increasing pain in her neck on the left side. 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 having headaches. Examination showed the extreme of extension of her cervical spine still causing discomfort. Again there was tenderness over the spinous process of the seventh cervical vertebra and in the left trapezius muscle. On 30th May 1983 Mr Anastas reported that whilst the respondent was fit for duty, she was still suffering the symptoms previously mentioned 21 months after the motor vehicle accident. He felt that she would be left with some permanent disability although 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 of very mild severity which should not disadvantage her in the workforce. By October 1983 the respondent was still suffering 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. BC9001537 at 15 The complicating feature of the learned Judge's damages assessment is that whilst working at the Warren District Hospital in August 1984, the respondent suffered a work-related accident while supporting a geriatric patient which aggravated the pain on the right side of her neck with radiation down her right arm together with developing pain in her left 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's neck was in part due to the motor vehicle accident of 1st August 1981 and in part due to the injuries sustained on 7th August 1984. He apportioned liability for the disability equally between the two injuries. Cross-examined on his apportionment Mr Anastas maintained his opinion. In the opinion of surgeon BAR Stokes, however, who saw the respondent after the August 1984 accident, the symptomotology involved was that of left-sided neck pain, left arm pain, inter-scapular pain and girdle pain. The patient made virtually no complaint about injury to the right side of her body. However, he did think that she had told him that she ocassionally suffered ache around the right elbow and that was all. He did not think that there was any link between the two injuries. The second accident was work-related and for that the respondent claimed weekly payments under the Workers Compensation Act which were about to reach the maximum amount allowable by the time his Honour's judgment was delivered. It is the appellant's contention that his Honour's acceptance of Mr Anastas' assessment is erroneous because the learned Judge should have found that the respondent's heads of damages for loss of amenities, work disability, and future medical and pharmaceutical expenses were substantially, if not entirely, due to the work-related accident of 7th August 1984. BC9001537 at 16 That contention was put before the learned Judge and rejected. After reviewing the evidence of many doctors who had seen the respondent, his Honour expressed himself as follows: "I am also drawn to the conclusion in the light of Mr Anastas' evidence that as a result of the incident at work on the 7th August 1984 when the patient pulled the plaintiff's arm, the plaintiff suffered injury to the left side of her body and the injury received in the motor vehicle accident was exacerbated to the extent that her disability is and since 1984 has been due in approximately equal proportions to the motor vehicle accident and her work related accident." Whilst it was submitted on behalf of the appellant that the respondent was exaggerating her disability, both in the past and present, the learned Judge considered her to be a truthful witness and accepted her evidence. The appellant argues that as the medical evidence from Mr Anastas supported the fact that the respondent was fit for work prior to the work-related accident, and unfit to work 3 months thereafter, the 50% liability for the heads of damage previously mentioned, must be erroneous. Furthermore, Mr Anastas did not know the answer to the question as to whether the respondent would have been injured to the same extent in the work-related accident if she had not suffered the original soft tissue injury. What he did say was that the motor vehicle accident which caused injury would have made her more pre-disposed to subsequent injury in as much as, "it takes less force to injure your neck." BC9001537 at 17 Such an argument may be put forward in answer to the proposition that the work-related incident exacerbated the respondent'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 to infer that he fully appreciated the position. His Honour's reasons reveal a comprehensive appreciation of the medical evidence. 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 support thereof has been forthcoming. Accordingly therefore, for these reasons, I would dismiss this appeal. BC9001537 at 18

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 the conclusion in the light of Mr Anastas' evidence that as a result of the incident at work on the 7th August 1984 when the patient pulled the plaintiff's arm, the plaintiff suffered injury to the left side of her body and the injury received in the motor vehicle accident was exacerbated to the extent that her disability is and since August 1984 has been due in approximately 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 the appellant: "On the history as given to me, this patient is still having symptoms, as a result of the motor vehicle accident on 1st August, 1981. These symptoms were aggravated on the 7th August, 1984 and, as yet, she is not over that aggravation. She is still having symptoms on the left side of her neck, with radiation to her left arm, as a result of the injury at work on 7th August, 1984 and this aspect should be considered as a new injury. As I see her today, she is fit for duty, but she should avoid heavy lifting and excess bending. With respect to treatment, I would advise that she continue with exercises and analgesics as is necessary. This patient is left with a permanent disability in her cervical spine and I would assess the disability of mild severity. The disability that she has in her neck is, in part, due to the motor vehicle accident on the 1st August, 1981 and, in part, due to the injury that she sustained on the 7th August, 1984 and I would portion the disability to being 50% due to the motor vehicle accident on the 1st August, 1981 and 50% due to the other injury on the 7th August, 1984." BC9001537 at 19 Mr Anastas was cross-examined on his assessment; but he was not moved to depart from it. The views which were opposed to his own were not put to him. He said it was just his assessment of the respondent's symptoms, on the history that she had given and on the basis of previous consultations. It is important to observe in this regard that the learned trial Judge considered the respondent "to be a witness of truth whose evidence is to be accepted". His Honour did not accept the appellant's submission that the respondent was "in effect exaggerating her disability both in the past and at present 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 the hospital. BC9001537 at 20 Mr Anastas said that, when he saw the respondent on 16th March 1987, she was not unfit, but she was fit with some restrictions. When he saw her before her accident at the hospital, he said she was fit without as many restrictions. He went on to say that, if a person has an injury to his neck, he is certainly more predisposed to another injury, in that it takes less force to injure the neck. It was argued for the appellant that if, immediately prior to the work associated accident, the respondent was fit for duty, then the effect of the accident was such as to create a new injury. In my opinion, 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 of his 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 symptomatology arising 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 the evidence of Mr Anastas and accept that of Mr Stokes. This was a conflict between the medical evidence called by either party which was for the trial Judge to resolve, and I am quite unpersuaded that it was not open to him to prefer the evidence of Mr Anastas. In my opinion, the first ground of appeal must fail. BC9001537 at 21 The second ground, which complains that the decision of the learned trial Judge was not a sound discretionary judgment, 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, the success 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 the respondent's loss of future earning capacity to a period of 5 years only when she would have attained the age of 35 years, allowing nothing for the possibility that, at some time in the future, the respondent might desire, or might need, to exercise 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 amount awarded is, on the facts found by his Honour, outside the range of a proper discretionary judgment. I would dismiss the appeal. 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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