New South Wales Court of Appeal CITATION : CALTEX TANKER CO (AUST) PTY LTD v ROBERT KERR [1999] NSWCA 115 FILE NUMBER(S) : CA 40069/98 HEARING DATE(S) : 24 March 1999 JUDGMENT DATE : 30 April 1999 PARTIES : Caltex Tanker Company (Aust) Pty Limited Robert Kerr JUDGMENT OF : Mason P; Giles JA; Fitzgerald JA LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CLD 12004/91 LOWER COURT JUDICIAL OFFICER : Master Harrison COUNSEL : R McIlwaine SC (Appellant) A Bartley SC/F Tuscano (Respondent) SOLICITORS : Ebsworth & Ebsworth (Appellant) Leitch Hasson & Dent (Respondent) CATCHWORDS : Damages; assessment of damages; knee injuries; attribution of damages to original knee injury; causation DECISION : Appeal dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40069/98 CLD 12004/91 MASON P GILES JA FITZGERALD JA Friday 30 April 1999 CALTEX TANKER COMPANY (AUST) PTY LIMITED v ROBERT PAUL KERR This is a damages appeal brought against a judgment entered by Master Harrison in favour of the respondent in the sum of $588,249.24. This award followed a finding that the appellant was liable for a knee injury suffered by the respondent in 1986 on board the appellant's ship. There were several further accidents suffered by the respondent to the same knee in subsequent years. The main issue raised in the appeal is the attribution of all of the awarded damages to the injury in 1986. HELD (by Mason P, Giles JA and Fitzgerald JA), dismissing the appeal: There is no basis for rejecting the Master's finding that the 1986 injury was the significant injury, notwithstanding that it came in on top of a gradually deteriorating arthritic condition or that it was aggravated by subsequent accidents. This finding was clearly open in the light of the acceptance of the respondent's credibility and the findings as to the nature and consequences of the various injuries before and after the 1986 injury, as well as the 1986 injury itself. State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81-003 (discussed) THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40069/98 CLD 12004/91 MASON P GILES JA FITZGERALD JA Friday 30 April 1999 CALTEX TANKER COMPANY (AUST) PTY LIMITED v ROBERT PAUL KERR JUDGMENT 1 THE COURT: This is a damages appeal brought against a judgment entered by Master Harrison in favour of the respondent in the sum of $588,249.24 made up as follows: Past economic loss: $149,666.40 Interest on past economic loss: $59,829.14 General damages: $80,000.00 Interest on past general damages: $8,528.00 Future economic loss: $290,225.70 2 The essential matter in issue is the attribution of all of these damages to the injury in 1986 for which the appellant was found responsible. 3 The appellant was the employer of the respondent in March 1986 when the respondent injured his left knee. He was working as a bosun on MV "Viking Merlin" which was an oil tanker that plied between the Persian Gulf and Australia. Liability was found against the appellant. 4 The respondent was walking down a corridor on board ship. The ship was a couple of days out from Fremantle en route to Bahrain. He turned to walk through the cleaner's locker, which had been converted from a sink to a makeshift passageway. He slipped on the linoleum floor which was wet with detergent and water. There were no warning signs. As he slipped, he fell to the right side and forward. His left foot became wedged between two protruding vertical pipes and the wall. He placed his weight on his left knee, which hit one of the pipes. He felt a "click" and "a terrible sharp pain" in his left knee. It immediately became very painful and very swollen. There were abrasions and bruisings to various parts of his body, including the left side of his knee. He received first aid and rested for the balance of the day. 5 The learned Master accepted the respondent's account of the injury and of its early consequences and treatment. The respondent could not go ashore at Bahrain because his left knee was tender. It was still markedly swollen, despite the lapse of three weeks. He was still in a lot of pain. On the return voyage, the respondent did some work, but requested other crew to carry out heavy manual work. The knee continued to be sore and swollen. 6 After his return to Australia the respondent consulted his general practitioner, who referred him to Dr Vance, an orthopaedic surgeon. Dr Vance saw the respondent on 28 May 1986 and reported that clinically the left knee showed some wasting of the quadriceps, a small effusion, clicking movement and margin osteophytes. X-rays taken in 1986 showed moderately advanced osteoarthritic changes, the same changes present in 1983 x-rays. The Master found that between 1983 and 1986 the arthritis in the left knee had not deteriorated. 7 Dr Vance prescribed analgesics and suggested exercise but no other treatment. The respondent underwent physiotherapy three or four times, but found that it did not improve his knee. He also did most of the exercises. The doctor's prognosis was that the respondent would become fit to return to work some time over the next month or so. This was not in fact the case. The respondent actually had 68 days off work and received workers' compensation payments. 8 Between 1986 and 1990 the respondent had no medical treatment for his knee, other than some physiotherapy. And he only saw Dr Vance on the one occasion already mentioned. In March 1990 further examination by Dr Vance, assisted by x-rays, revealed moderately advanced osteoarthritic changes with a further narrowing of the joint space margins and deterioration radiologically since the x-rays of 1986. 9 There was at trial, and remains, a dispute about the extent of the impact of the 1986 injury. The appellant relies upon the fact that Dr Vance certified the respondent fit to return to work on 28 June 1986 and the respondent's return to work at sea over the next four years, apart from a period in 1988 when he attended a three month integrated rating course at the Australian Maritime College in Tasmania. Upon completion of this course he was certified medically fit to return to sea, which he did. During this four year period the respondent was also able to make two parachute jumps and to play one game of golf and, perhaps, one game of tennis. It was a fresh knee injury in early 1990 which took him back to Dr Vance. 10 These matters we have recounted obviously raised a live issue about the extent of the disability stemming from the 1986 accident, for which the appellant bears legal responsibility. Nevertheless, the learned Master found the 1986 injury to be one of significance and, on the basis of this finding, awarded the substantial damages referred to above. These damages included damages for future economic loss stemming from the fact that by March 1992 the respondent had become unfit for heavy work. The Master assessed the respondent's impairment of earning capacity at sixty-five per cent and she awarded damages assessed by reference to loss of wages to age sixty-five years. These were calculated by reference to the wages of a Chief Integrated Rating (Bosun). The conventional fifteen per cent discount for vicissitudes was applied. The sums awarded are not said to be excessive in relation to the respondent's disabilities as they have manifested themselves since 1991. However, the appellant contends that it should not be made to bear the whole damages in relation to those disabilities. 11 Issues of causation were presented because the respondent suffered three additional accidents to his left knee prior to 1986 and three in the period 1990 to 1991. 12 We do not understand the Master's findings about the three prior accidents/injuries to be challenged. In 1969 or 1970 a loose mooring line struck the respondent's left knee on the front side, necessitating three weeks' leave. This injury resolved after about three weeks and gave no apparent trouble thereafter. 13 In 1978 or 1979, there was a further injury to the left knee, but little is known beyond the fact that the respondent consulted an orthopaedic surgeon. X-rays show early osteoarthritic changes. However, the injury itself was insignificant and resolved itself promptly. 14 In 1983 there was a "glancing" blow by a crow bar to the left knee. The respondent was off work for 28 days. X-rays confirmed moderately advanced osteoarthritic changes and a little wasting in the quadriceps of the respondent's left knee. However, the respondent was able to return to heavy work, and his evidence that the left knee did not trouble him afterwards was accepted by the Master. 15 The appellant's real attack on the impact and significance of the 1986 injury was based on the events between 1986 and 1990 which we have recounted, as well as the evidence concerning further accidents involving the left knee in February 1990, January 1991 and December 1991. 16 In February 1990 the respondent slipped on oil and knocked his left knee. This accident did not cause any frank injury, but it took the respondent back to Dr Vance, who apparently accepted the respondent's history that the real problem was one stemming from the 1986 accident, as evidenced by the difficulties encountered by the respondent between 1986 and 1990. That evidence is recounted at pages 11-13 of the Master's judgment. The Master, who found the respondent to be a truthful witness, records that during his time at sea between 1986 and 1990, the respondent's knee remained very sore, forever clicking in and out and disturbing sleep. The respondent used up sick and other accrued leave as he took extensive periods of time off due to his disabilities after August 1986. The Master accepted the respondent's evidence that, for two years after the 1986 accident, his knee was no good and systematically dropped out and was very painful. He would walk around to relieve the pain. If he stayed in one position his left knee seized up. He was able to continue going up and down ladders and to be on his feet, but with difficulty. 17 In September 1991 there was an accident when the respondent was carrying a fire extinguisher backwards. He experienced sharp pain in his right lower back. He attributed the accident to favouring of the left leg. The Master thought that this incident was evidence of the knee becoming more unstable. 18 In December 1991 there was another accident involving the left knee. This led to the respondent being declared medically unfit for service at sea the following March. As the respondent was climbing a ladder at the top of the "Jabiru Venture", he hit his knee on a rung. The ladder was about the height of a fourteen storey building. The knee was twisted. The respondent was taken by helicopter to Darwin. Dr Schmidt, who examined him in January 1992, observed advanced osteoarthritis and a grossly wasted thigh. Significantly, he formed the opinion that the respondent had not suffered a significant knee injury in December 1991, as signs of acute injury were absent. 19 On 23 March 1992 Dr Light examined the respondent and declared him unfit for service at sea because of instability in the left leg. Another doctor could not be persuaded to declare him fit. The respondent was then almost 44. He had left school at 15 and had spent most of his working life in manual work at sea. 20 We have already indicated that part of the appellant's challenge to the judgment below attacked the finding that the 1986 injury was significant and one that had continuing impact, particularly during the period 1986 to 1990, notwithstanding the respondent's fairly active employment at sea in this period. We have referred (in par 9) to the matters occurring between 1986 and 1990 upon which the appellant relies in support of its contention that the 1986 accident had little or no ongoing impact. To these matters must be added the evidence of pre-existing degenerative arthritic change which, according to the appellant, provided the cause of or a significant contribution to such ongoing pain and discomfort as the respondent suffered after 1986. Nevertheless, we see no basis for rejecting the Master's finding that the 1986 injury was the significant injury, albeit that it came in on top of a gradually deteriorating arthritic condition. In our view this finding was clearly open in the light of acceptance of the respondent's credibility and the findings as to the nature and immediate consequences of the various injuries before and after the 1986 injury, as well as the 1986 injury itself. The appellant's challenge based upon the respondent's capacity to lead a relatively normal working life between 1986 and 1990 does not displace our comfortable satisfaction that the learned Master was correct in these findings. 21 The findings draw support from the medical evidence. There was an extensive contest of medical opinion as recounted at pages 16-20 of the judgment. The Master's analysis may be allowed to speak for itself. This part of the judgment was barely challenged. It is summarised below. It was clearly open to the Master to reach the views that she did in relation to the medical evidence, and to use those findings to corroborate her conclusions about the impact of the 1986 accident. 22 This portion of the judgment also demonstrates that the Master was fully seized of the issue of determining the effect that the 1986 accident had on the respondent's left knee, and the role of the pre-existing arthritis and the succeeding 1991 accident in contributing to the disabilities as they clearly emerged after 1991. 23 At page 16 of the judgment the Master said: Most of the doctors agree that the 1991 accident aggravated the plaintiff's knee condition. None of the doctors say that the December 1991 accident caused the plaintiff's left knee injuries and disabilities of which he presently suffers. 24 Later in her judgment, the Master found on the balance of probabilities that the respondent did not have a predisposition to arthritis because there were marked differences between the levels of arthritis in the left and right knees. This finding should be understood in its context which was to support the conclusion on the basis of medical opinions that the cause of the knee injury was the 1986 incident. The Master was not denying the pre-existence of degenerative arthritic changes. Dr Vance, who was the treating orthopaedic surgeon over a prolonged period, considered the injuries of 1983 and 1986 to have aggravated the underlying arthritic condition and caused an acceleration of deterioration in the joint to some extent. This opinion appears to have been accepted by the Master. 25 The Master also found that the medical report which was the closest to the explanation of the injuries caused by the 1986 accident was that of Dr Patrick dated 15 November 1995. Dr Patrick received a history of the 1969/70, 1978, 1983, 1986 and 1991 accidents and had access to Dr Vance's report. Dr Patrick accepted that after the 1969 and 1983 injuries the respondent's knee recovered and became asymptomatic. (The Master noted that this accorded with the respondent's evidence, which she had accepted.) Dr Patrick said: There has been a significant injury, I believe, during the period of his employment with Caltex when - in probably September 1985 - he has slipped with the left foot becoming jammed between protruding pipes and a bulkhead, as described. He has sustained a twisting injury to the left knee with some direct trauma, and this incident appears to have been a significant turning point in his level of symptomatology. … I believe that, given the history, and sequence of events, it is likely that the most significant injury has been that of September 1985 or thereabouts. There has probably been some trauma sustained in the 1969 incident, with gradual development of arthrosis. [The reference to "September 1985" should read "March 1986". ] 26 Further support for the respondent's case was derived from the opinions of Doctors Vance and Schmidt to which reference has already been made. 27 The Master accepted the respondent's explanation that, due to the pain and unreliability of his left knee between 1986 and 1990, he began to favour his right leg. This explained the increased level of wasting of his thigh. The Master concluded: The 1991 accident aggravated the plaintiff's left knee and caused his knee to become more painful and unstable to such an extent that he was no longer fit for heavy duties. 28 For these reasons, we reject the appellant's submissions that the 1986 injury was a temporary or minor aggravation of a pre-existing condition. 29 In addressing the issue as to what damages should flow from the 1986 accident, in view of the subsequent injuries, the Master cited the judgment of Malcolm CJ in State Government Insurance Commission v Oakley (1990) Aust Torts Rep ¶81-003, being a judgment cited and applied by this Court in Jefferies v Roads and Traffic Authority of New South Wales, Court of Appeal, unreported, 28 November 1997. The appellant accepts the correctness of the principles stated in these two cases. Relevantly, Malcolm CJ said (at 67,577): 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 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; … 30 Malcolm CJ explained (at 67,578) that this second proposition covers what Professor Luntz describes as the "increased vulnerability" cases (see now Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed 1990 para [2.5.4]). Malcolm CJ pointed out that, in this class of cases: 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. 31 At this stage it is appropriate to set out the critical portion of Master Harrison's judgment: It is clear that after the 1986 accident, the plaintiff's knee continued to become increasingly painful and became swollen more regularly. His left knee became unstable. He had difficulty climbing. However, there is no evidence that leads me to conclude that the subsequent accidents would not have occurred had the plaintiff been in the physical condition caused by the defendant's negligence (scenario one above). [This is a reference to Malcolm CJ's first proposition.] It is my view, on the balance of probabilities that the plaintiff may have slipped on oil in 1990 or knocked his knee on a ladder rung in 1991, even if his knee had been in normal condition. But the damage sustained in these subsequent injuries is greater because it further aggravated the injury that occurred in 1986. The additional damage resulting from those subsequent accidents should be treated as caused by the defendant's negligence. Prior to the 1991 aggravation, the plaintiff could still carry out heavy work but with increasing difficulty. He was suffering increased pain and swelling to his knee. This last aggravation in 1991 caused the plaintiff's knee to become more unstable so that he became unfit for heavy work. The damage suffered in the 1991 injury was greater because of the aggravation of the earlier injury. The defendant is liable to compensate the plaintiff for this. 32 In her award of both general and special damages referable to the 1986 accident, the Master made findings as to the respondent's current disabilities and their financial impact. She accepted that the respondent was forced to give up his employment in the merchant navy in 1992 and was unable thereafter to obtain remunerative employment at anything like the previous level. At the time of trial in February 1998 the respondent was aged forty-nine. He had left school at fifteen years and had spent the whole of his working life in the merchant navy doing manual work. 33 If one rejects, as we have done, the appellant's factual challenge to Master Harrison's findings referable to the 1986 accident, the issue in the appeal comes down to this. The Master's findings of continuing disabilities in his left knee and of the financial sequelae are not challenged by the appellant. What the appellant does assert is the failure of the Master to regard any of those disabilities or losses as stemming from the December 1991 accident. The attribution of the entirety of the present disability to the 1986 accident is said to contravene the very principle stated by the Master, based on Oakley's case, that it is only the additional damage resulting from the aggravated injury [in December 1991] that should be treated as caused by the appellant's negligence. 34 The appellant relies upon the following: · There is no finding that the respondent's condition stemming from the 1986 accident would have rendered him unfit for work at sea by March 1992. · Per contra, the 1991 accident is described as an aggravation of the respondent's knee condition causing "additional damage". · Prior to the 1991 "aggravation" the respondent could still carry out heavy work but with increasing difficulty. · The finding that "the damage suffered in the 1991 injury was greater because of the aggravation of the earlier injury" triggers the need to segregate the additional damage resulting from the aggravated injury in accordance with the principles summarised in Oakley. Had the finding been to the effect that the damage suffered in the 1991 injury caused the respondent's unfitness for heavy work, it would have been expressed in those terms, and there would have been little or no point in drawing the distinction that Malcolm CJ did in his second proposition. · In 1988 the respondent commenced employment with BHP on the "Jabiru Venture". He remained with BHP until invalided out of the merchant service in March 1992 following the December 1991 accident. He was examined by doctors retained by BHP who were concerned to estimate BHP's responsibility for the final condition. Doctors Wood (BAB103) and Reid (BAB110) suggested a BHP contribution of 20% to the aggravation of the knee condition. 35 The respondent supports the Master's assessment, relying upon: · The unlikelihood of the Master overlooking the legal principle which she had stated. It is not unknown for a judge to state a legal principle clearly but to fail to apply it to the facts of the instant case (cf Wintle v Nye [1959] 1 All ER 552 at 559). But such oversight is not lightly to be attributed to a judicial officer. · The acceptance of Dr Schmidt's opinion in January 1992 that the December 1991 accident was not significant and revealed no signs of acute injury. · The findings as to the significance of the 1986 accident and the non-significance of the 1991 accident. 36 We do not find this an easy case. But we favour the respondent's submission on this issue. 37 The second of the two propositions in State Government Insurance Commission v Oakley is implicitly based on a premise that a later injury which was not caused by an earlier injury will have two consequences which can be separately identified; namely, an effect unrelated to the earlier injury and an additional effect due to the earlier injury. Further, the terms in which the latter effect is described in the second proposition perhaps unintentionally connote that the second injury is causally more significant than the first injury, which is plainly incorrect in the present case. The substance of the second proposition in Oakley, on our understanding, is that the respondent is not entitled to damages for any injury caused by the December 1991 accident which is unconnected to the 1986 injury but is entitled to damages for any additional injury caused by the December 1991 accident because of the injury which had been caused by the 1986 accident. 38 Although the Master's findings might be more fully and clearly expressed, it seems to have been accepted that: (a) the respondent's condition immediately prior to his December 1991 injury would have caused him to become unfit for service at sea in due course; (b) the respondent's injury in December 1991 was not serious and would have been resolved within a month but for the respondent's pre-existing condition; and (c) the respondent's condition as a result of the 1986 injury and the degenerative change which had occurred was aggravated by the December 1991 accident, which brought the respondent's unfitness for service at sea forward to March 1992. 39 The result is that the respondent's damages must be reduced by reference to only those effects of the December 1991 injury which are unconnected with the 1986 injury; i.e., the initial pain and suffering when his knee struck the ladder and at least part of the pain and suffering in the month after the accident in December 1991. There is no claim by the respondent for economic loss related to that period. 40 We are not persuaded that the general damages awarded by the Master incorrectly included an amount for pain and suffering which the respondent would have experienced in the month after the December 1991 accident even if he had not been injured in 1986. 41 While it is not as clear as it might be, the Master's finding was that the 1991 aggravation caused the increased instability, impliedly to the extent of the current disabilities and the complete cessation of sporting ability. We do not find that she overlooked or failed properly to apply the Oakley principle in assessing general damages. It is true that there is no express finding that the 1991 injury was limited in its effect, but the Master did refer to Dr Schmidt's opinion that the injury was not significant and would resolve in a month (judgment p16). 42 The appeal should be dismissed with costs. *************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.