Davey v Tricare Ltd [2003] QCA 419

SUPREME COURT OF QUEENSLAND CITATION: Davey v Tricare Ltd [2003] QCA 419 PARTIES: JEM AMBER DAVEY (formerly known by the name of JOE EMMA DAVEY) (plaintiff/appellant) v TRICARE LTD (ACN 009 657 345) (defendant/respondent) FILE NO/S: Appeal No 10 of 2003 SC No 3126 of 2001 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 26 September 2003 DELIVERED AT: Brisbane HEARING DATE: 30 July 2003 JUDGES: McMurdo P, Williams JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: 1. The appeal is allowed by deleting from the learned trial judge’s order the sum of $22,116.76 and inserting in lieu thereof the sum of $23,638.85 2. The appellant is ordered to pay the defendant’s costs of and incidental to the appeal to be assessed 3. The cross-appeal is dismissed with costs to be assessed CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – DAMAGES INADEQUATE – where appellant a carer in a nursing home – where appellant injured her back whilst lifting a patient – where respondent negligent in failing to provide safe system of work – where trial judge accepted that the incident led to some discomfort – where sciatica developed after the incident – where trial judge found appellant had degeneration in her lower back spinal process prior to the incident – where minor stress to the back could result in the symptoms claimed – where appellant awarded $22,116.76 in damages – whether damages manifestly inadequate – whether trial judge’s conclusion as to extent the incident caused the symptoms complained of was incorrect – -- 1 of 8 -- 2 whether failure to accept uncontradicted evidence as to complaint of injury – whether irrelevant factors taken into account in determining causation – whether inadequate weight given to pre and post trauma history APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – DAMAGES INADEQUATE – where no award made for special damages paid to WorkCover – where no award made for agreed refund to HIC – where superannuation erroneously calculated as an annual cost – where parties had agreed on an award of $1000 for “other special damages” – where $200 only awarded for “other special damages” – whether errors made by trial judge in assessing the quantum APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – whether trial judge failed to state the evidence relied on and accepted Uniform Civil Procedure Rules 1999 (Qld), r 388 COUNSEL: J G Crowley QC, with P B de Plater, for the appellant D O J North SC, with R A I Myers, for the respondent SOLICITORS: Shine Roche McGowan for the appellant McCullough Robertson for the respondent [1] McMURDO P: I agree with the reasons of judgment of Mackenzie J and with the orders proposed. [2] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Mackenzie J. I agree with all that he has said therein and there is nothing I wish to add. I agree with the orders proposed. [3] MACKENZIE J: This is an appeal in an action by the plaintiff/appellant against the respondent, her employer, based on a claim that she had suffered an injury to her back in the course of lifting a heavy patient while working as a carer at a nursing home at Mermaid Beach conducted by it. The respondent filed a cross-appeal but expressly abandoned it during the course of the hearing. [4] At the time of the incident upon which the claim was founded the plaintiff was nearly 37 years of age. She had received some training as a nurse about 20 years previously. Early in 1998 she applied to the respondent for a carer -- 2 of 8 -- 3 position. She was offered a casual position as a carer and commenced employment on the day of the relevant incident. [5] When she commenced her shift at about 3.30pm, she was assigned to assist Mr Burton, a male nurse. She told Mr Burton at the outset that she had forgotten how to lift patients and he demonstrated what to do. They worked together lifting some patients between 3.30pm and 5.30pm. After dinner, they went around a second time and prepared the patients for bed. [6] The plaintiff said that during this period she was directed by Mr Burton to assist in moving a heavy patient named Arnie from a wheelchair and manipulating him onto his bed. Once he was on the bed she assisted Mr Burton to shift him towards the head of the bed by means of a “cradle lift” which involved the two nurses interlocking their arms and moving the patient up the bed. During the course of doing this, according to the plaintiff, she felt pain in her back and told Mr Burton that her back was hurting because the lift was too heavy for her. She said Mr Burton completed the lift by himself. The plaintiff’s case was that she suffered back injury in the course of assisting Mr Burton to lift or slide or move the patient further up the bed. [7] Mr Burton had no real recollection of anything to do with moving Arnie up the bed with the assistance of the plaintiff and had no recollection of the plaintiff ever complaining to him about any problem. He said that if he had observed any such event or if she had said anything about her back hurting as a consequence of lifting, he would have required her to fill out an injury report as was required by the home’s procedure for reporting such incidents. [8] The plaintiff also said that she had informed the matron within a day or two of the injury to her back but the matron denied that the plaintiff had ever informed her of an injury. The matron also referred to the practice of recording such information. The plaintiff also said that she had informed a nurse named Barrett, who was the health and safety officer in the nursing home, to the same effect but Nurse Barrett also denied that she was ever informed by the plaintiff of any back injury. One further matter to which the learned trial judge referred was that when the plaintiff resigned on 14 March 1998 she did not mention any back problem or any difficulty transferring patients. She advised she was resigning for family reasons. No application for WorkCover was made until about 18 months later. In the meantime, she had done an Information Technology Course, engaged in brief periods of employment, during one of which, in June 1998, she suffered another episode of back pain, and got a job in a pathology firm for a few months. [9] The learned trial judge accepted the evidence of the matron and the two nurses that the plaintiff had not informed them of her injury on or subsequent to the day when it was alleged to have occurred. He described the evidence given by the plaintiff in that regard as “quite unpersuasive”. However, there was evidence that she did consult a doctor at Mermaid Central Medical Clinic on 26 -- 3 of 8 -- 4 February 1998 regarding a back condition, telling the doctor that she was involved in lifting patients at Tricare and had developed a sore lower back the night before. The learned trial judge, acting on this evidence, accepted that she did suffer some discomfort as a result of the incident complained of. [10] There was evidence which the learned trial judge accepted, since it was uncontradicted, that the method employed in lifting was considered outmoded and unsafe and the issue of liability was therefore concluded in favour of the appellant. [11] With regard to the appellant’s appeal, a number of the grounds in the amended notice of appeal were not pursued. Those which remained may be summarised in the following way: • The learned trial judge failed to sufficiently state what medical evidence he accepted. Nor did he state which of the four orthopaedic surgeons was the source of the evidence he accepted; • The learned trial judge failed to accept uncontradicted evidence. This focused on the issue of whether the appellant complained at the time of the incident that she had hurt her back; • The learned trial judge took into account irrelevant factors when assessing issues. Under this ground a complaint was made that undue focus was placed by the learned trial judge on the patient Arnie’s weight; and that he asked Mr Burton a series of questions about the practice of requiring incident reports to be created to a point, it was submitted, where the evidence elicited was inadmissible or of no weight; • The learned trial judge failed to give due weight to the plaintiff’s pre-trauma and post-trauma history, particularly evidence of her attendances at the Mermaid Centre Medical Clinic in assessing the damage sustained in the lifting incident; • The learned trial judge made errors in assessing quantum, which he assessed at $23,186. The matters of detail relevant to this ground will be discussed later. [12] It is convenient to commence with a review of the evidence relating to attendances at the Mermaid Centre Medical Clinic. The appellant attended the clinic on the day after the incident. She consulted Dr Balin “regarding her back condition”. The history she gave was that she was involved in lifting patients at Tricare and had developed a sore lower back the night before. He found some tenderness over the lumbar region and prescribed anti-inflammatory medication. He advised her to return if symptoms continued. She commenced to wear a soft back brace, on her own initiative. -- 4 of 8 -- 5 [13] On 28 March 1998, Dr Balin noted that she had given up work because she was having ongoing back pain but recorded that her back “was almost back to normal”. After that she visited the practice on about four occasions before there was another complaint, on 17 June 1998, about lower back spasm. A CT scan was done on 19 June 1998 following which she underwent a course of acupuncture. There were other consultations during the course of acupuncture where favourable results were reported. [14] On 18 July 1998, a bookcase fell on her wrist and forearm while she was moving furniture causing soft tissue injury. There was no complaint about her back on that occasion and despite a number of other consultations in the following months there was no mention of back problems until 16 January 1999. On 24 October 1998 she applied for a position with Sullivan Nicolaides Pathology and worked for them until 5 January 1999, advancing family reasons for resigning although she complained to her doctor that discomfort while standing caused her to resign. The first complaint to doctors of pain radiating in the manner of sciatica appears to have been made on 16 January 1999 and repeated on 17 March 1999. [15] In light of this evidence the learned trial judge was satisfied that she did suffer back pain as a consequence of “lifting patients at Tricare during her first shift”. He then addressed the question whether the particular event relied on as the cause of her problem caused the condition for which she sought damages. In particular, he identified “one of the critical issues”, because of the focus on the incident relating to Arnie, as “whether in fact the plaintiff probably did suffer back pain solely as a consequence of attempting to lift Arnie on the evening of 25 February 1998 as she later asserted, even though she made no complaint of this to any person at the hospital at any material time, and even though the history she gave to Dr Balin was not of lifting a very heavy patient but of ‘lifting patients’ generally on the evening shift before she consulted him.” [16] He concluded that while she had suffered some discomfort from the incident relied on, the consequences that manifested themselves in early 1999 were not caused by the incident. Accordingly, she was only entitled to compensation for the limited discomfort attributable to the incident. One of the appellant’s complaints is that the learned trial judge did not adequately reveal in his reasons the evidence upon which he acted in reaching his conclusion on this issue. [17] As is usually the case in matters of this kind there is a range of medical opinion. In the end the learned trial judge acted upon a view that prior to the incident, the plaintiff had degeneration in her lower back spinal processes. He also found that with her back in such a condition, a relatively minor stress or series of stresses at any time could have led to the symptoms upon which her claim was based. There was in my view evidence upon which the learned trial judge could reach both of these conclusions. While the learned trial judge did not expressly say which of the medical practitioners’ evidence he preferred, his reasons for judgment indicate that he accepted the assessment of Dr Anderson, possibly supported to some extent by Doctor Ashman, that the incident relied -- 5 of 8 -- 6 on was not the cause of the sciatica that developed in early 1999. Central to this was radiological evidence that there was evidence of prior degeneration of the spine. In acting upon this view of the evidence, the learned trial judge relied on his conclusion that no complaint of injury, let alone a particular injury, was made to anyone at Tricare at any material time, the appellant’s medical records that did not suggest constant back pain, that there were periods when the records suggested that she was not suffering discomfort and that there had been another incident later in her employment with the respondent that produced a complaint of back pain. In my view there is no valid basis for complaint that the learned trial judge did not expressly say that he preferred the evidence of a particular medical practitioner or practitioners over others. [18] With regard to the appellant’s complaint that the learned trial judge explored the practice of filling out an incident report when an incident leading to injury was reported it was, in my view, open to the learned trial judge to use that evidence as a circumstantial fact in deciding whether to accept the appellant’s evidence that she had complained immediately upon the incident happening. The fact that there was such a practice, the fact that those to whom she said she mentioned it were aware of it and the fact that there was no report made in pursuance of the practice were legitimately considered by the learned trial judge in determining the issue of credibility of the appellant’s evidence that she had complained orally of the injury. There is nothing in that ground. [19] The weight to be given to Mr Burton’s evidence that he had no recollection of the plaintiff and no recollection of the incident was a matter which was peculiarly for the trial judge to assess. It is, in my view, incorrect to say that, in the context of the existence of a system of reporting incidents and evidence that no report was generated under it, the appellant’s evidence of making a complaint was uncontradicted and therefore should have been acted upon. The criticism of the learned trial judge’s approach to Arnie’s weight is somewhat of a side issue. The learned trial judge observed that there was no reliable evidence of how heavy he was but nevertheless accepted that it was negligent to use the kind of lift attempted on the patient. Nothing in that approach prejudiced the appellant. [20] With regard to quantum the appellant submits that the sum of $15,000 awarded for pain, suffering and loss of amenities of life was inadequate because it failed to take account of the evidence that prior to the incident relied on the plaintiff was pain free. The basis upon which the learned trial judge assessed damages was that by the time of an operation in February 2001 any stress applied to her spine while she was employed by the respondent had ceased to be an operative cause. On the basis that some of her symptomology, to an indefinable extent, had been accelerated or exacerbated during the period of 3 years by her assisting to transfer patients on the day of the incident, he assessed general damages in the sum of $15,000. [21] He also awarded $6,000 on the basis that there was some loss of income, although not capable of calculation with any precision, because of his -- 6 of 8 -- 7 evaluation of the medical evidence. The respondent submitted that, on the findings, the sum of $15,000 may have been generous in any event although it was not pressed as a reason for reducing the damages awarded. I am not persuaded that the damages awarded for pain, suffering and loss of amenities of life and loss of earnings fell short of a sound exercise of the learned trial judge’s discretion on the facts found by him. [22] One specific complaint made about assessment of damages was that there was no award in the sum of $1,069.24 for special damages paid for by WorkCover nor for an agreed refund to HIC in the sum of $1,823.80. It was also common ground that lost superannuation had been erroneously calculated since the sum allowed should have been 7% of loss of earnings. The learned trial judge treated it as an annual cost with the result that the sum awarded was three times what should have been allowed. Interest on the combined sum for lost earnings and superannuation is therefore consequentially incorrect. The appropriate award for interest would therefore have been $642 had the superannuation not been mistakenly calculated. [23] One other contentious matter was that at the time the letters from the HIC and WorkCover were tendered, the appellant’s counsel said that “other special damages” were agreed in the sum of $1000. Defence counsel added the rider that it was subject to liability being established. The failure to allow for the HIC and WorkCover refunds may have resulted from the learned trial judge mistakenly gaining the impression from an exchange recorded in the transcript that the sum of $1000 was intended to cover “all refunds and so on to the health people”. The view of the evidence on which he acted was that by the time of an operation she underwent, the effects of the compensable injury were no longer in existence. He allowed $200 for the cost of pain relieving drugs incurred a little earlier as a consequence of the exacerbation or acceleration of the onset of symptomology. In my view, notwithstanding the reference to $1000, the learned trial judge was entitled to reduce that sum in light of his findings. There is no reason to think that the sum allowed in that regard was inappropriate. Had all of these matters been drawn to the learned trial judge’s attention in a timely way, they fell within r 388 Uniform Civil Procedure Rules 1999 (Qld) and could have been corrected without an appeal being necessary. While the respondent contended for a “swings and roundabouts” approach, with no variation of the judgment being made, in my view each of these errors should be reflected in the order made in these proceedings. [24] With the exception of two items, $422.50 described as “MRI – previous spinal injury” provided on 30 June 2001 and a surgery consultation costing $24.45 on 21 January 2002 all of the HIC items fall within the period adopted by the learned trial judge. If an adjustment is to be made to include the HIC refund, those items should be not included. The WorkCover payments all relate to the period adopted by the learned trial judge. [25] Accordingly the amount of damages should be itemised as follows: Pain, suffering and loss of amenities of life $15,000.00 -- 7 of 8 -- 8 Loss of earnings $ 6,000.00 Superannuation @ 7% $ 420.00 Interest on lost earnings and superannuation for 2 years $ 642.00 HIC refund $ 1,376.85 WorkCover refund $ 1,069.24 Acceleration of cost of medication incurred etc $ 200.00 Total $24,708.09 [26] In the formal order the learned trial judge deleted the sum of WorkCover refund, $1,069.24, from the judgment sum. The same course will be followed in the order made in these proceedings. With respect to costs, while the appeal will be allowed, it is only allowed for the purpose of correcting accidental slips or omissions which could have been corrected without the need for an appeal. The appellant has been unsuccessful on the substantive grounds of appeal and conversely the respondent has successfully resisted the appeal on those grounds. In the particular circumstances the respondent should not be deprived of its costs. The orders are as follows: 1. The appeal is allowed by deleting from the learned trial judge’s order the sum of $22,116.76 and inserting in lieu thereof the sum of $23,638.85 2. The appellant is ordered to pay the defendant’s costs of and incidental to the appeal to be assessed 3. The cross-appeal is dismissed with costs to be assessed. -- 8 of 8 --