SEYMOUR v CUMBERLAND AREA HEALTH SERVICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and BEAZLEY JJA 5 September 1996, 25 September 1996 [1996] NSWCA 472 Work related injury — evidence — failure to establish nexus between weight of object lifted and plaintiff's injury Work related injury — evidence — failure to establish nexus between object moved by plaintiff and plaintiff's injury. HELD: By Priestley, Meagher, Beazley JJA agreeing: The trial judge was correct in holding that the appellant's claim should fail because she had failed to establish a nexus between the weight of the object moved and the injury suffered by her. FACTS: The appellant claimed damages for an injury received whilst working as a porter at Westmead Hospital. The injury was sustained in the course of pushing a bed with a patient in it from one ward to another. The appellant claimed that the bed was a water filled bed and one that was significantly heavier than the beds she was used to pushing. At the trial, no accurate description of the mattress could be produced. As such, it was not possible to determine the weight of the mattress that allegedly caused the injury. The trial judge held that, in the circumstances, no causal relationship between the mattress and the injury could be established. ORDERS: 1. Appeal dismissed with costs. Priestley JA In Meagher JA's reasons, which I have had the advantage of reading in draft, he mentions that the trial judge had found that the plaintiff had not shown any nexus between the weight of the mattress and her accident. The criticisms by senior counsel for the plaintiff of this aspect of the trial judge's reasons, although of some force and persuasion, are subject to the weaknesses pointed out by Meagher JA, with whose observations in this respect I agree. In the result I do not think the submissions for the plaintiff have shown the trial judge was wrong in his conclusion about lack of nexus. On this basis I think the appeal should be dismissed with costs. Meagher JA This is an appeal by an unsuccessful plaintiff, Mrs Seymour, who failed before Phelan DCJ in an action she brought against the respondent. The case was heard on 29 and 30 July 1993. His Honour found a verdict for the defendant on 6 August 1993 but in case he was in error assessed damages in the sum of $65,000. The appeal is on the question of liability only. Mrs Seymour injured her right shoulder at work in October 1986. She was then fifty three years old. She was employed by the respondent as a porter at Westmead Hospital. Her duties were to carry parcels, transport blood samples, and move patients between different parts of Westmead Hospital. 2 UNREPORTED JUDGMENTS One day in October 1986, she was required to transport a patient, who was in a bed. As Mrs Seymour moved the bed into the lift she "came to a screaming halt and felt a burning sensation in the right shoulder". She looked at the bed and found it to have a water mattress. Her case was, essentially, that this type of bed was heavier than normal so that she should not have been required to move it alone and that there should have been some warning indicating that there was a water mattress in the bed, thus rendering it heavier than a normal bed. One could not tell by looking at a bed whether the mattress was a water mattress or not. She had never pushed a similar bed before. His Honour found that as a witness Mrs Seymour was honest and truthful but not reliable. One of the difficulties of his Honour's judgment is that his Honour never says expressly which parts of the evidence are unreliable, and to what extent. The main difficulty presented by the evidence is the lack of an obviously correct description of the bed which she pushed at the time of the accident. There were in evidence two exhibits. Exhibits C and 5, neither of which (according to her) was like the bed she was pushing at the time of the accident. Both parties, together with their engineering and legal advisers, went on one occasion formally to inspect and report on the water mattress at the Hospital. Each engineer did report on that mattress. All this is somewhat surprising, because it is clear that Mrs Seymour at the time protested that the mattress which they were all solemnly examining was not the one in use when she had her accident. So much is clear from her own expert's report. No official who worked a the Hospital gave evidence of what water mattresses were in use at the relevant time. Neither did any employees; nor was the absence of such evidence explained. What Mrs Seymour did do was provide, in her evidence, certain dimensions of the water mattress she said she was moving: 6 feet in length, 3 feet 6 inches in width, 5 inches in depth. From these figures, her learned senior counsel Mr Milne QC, made certain calculations: there were nearly 248 cubic metres of water, weighing nearly 248 kilos, more than 44 US gallons, more than one-quarter of a ton in weight. But no great reliance can be placed on these figures. To begin with, they are only approximations, and even slight variations on them can produce considerably different results. Further, they are calculations based on the assumption that the mattress was completely full, and it would be remarkable if this assumption was accurate. Further still, they differ from the figures which Mrs Seymour, supplied to her own expert, Mr Buckland. That gentleman calculated that from the figures supplied to him the water mattress moved by Mrs Seymour at the time of the accident would have weighed 150 kilos - a figure far short of the figure of 248 kilos relied on by Mr Milne. Again, one does not know for certain whether his Honour believed the figures quoted by Mrs Seymour in the witness box, but from the result of the case one must infer that he did not. Finally, to add to the complexities, there existed some storeroom at Parramatta which might well have contained a water mattress which more clearly resembled the one in use at the accident; but, since neither party agitated the issue, we simply do not know. URJ SEYMOUR v CUMBERLAND AREA HEALTH SERVICE (Beazley JA) 3 At all events. his Honour found that Mrs Seymour had not proved any nexus between her accident and the weight of the water mattress. This conclusion. which seemed to have been shared by her own expert witness, seems to me irresistible in the light of the factors which I have endeavoured to summarize. This matter (viz the nexus between the weight and the accident) was the only ground of appeal argued before us. As counsel for the respondent pointed out, this was odd in view of the fact that it was not mentioned in the Notice of Appeal. I was initially minded not to allow a last-minute amendment, but on further reflection I would allow such an amendment. His Honour also found for the defendant on the question of foreseeability, and I see no reason to disturb his finding in this regard. In my view, the appeal should be dismissed with costs. Beazley JA I agree with the orders proposed by Meagher JA. Appeal dismissed with costs. Representation: Counsel for the appellant: D Milne QC; D Stanton Solicitors for the appellant: McClellands Counsel for the respondent: M Elkaim Solicitors for the respondent: William K Chambers