Jones v Eagle Ford P/L [2000] NSWSC 1084

New South Wales Supreme Court

CITATION : Jones v Eagle Ford P/L [2000] NSWSC 1084 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20009/99 15/11/00 HEARING DATE(S) : 16/11/00 17/11/00 JUDGMENT DATE : 27 November 2000

PARTIES : Elviera Jones (Pl) Eagle Ford Pty Ltd trading as Thomson Automotive (Def) JUDGMENT OF : Kirby J

COUNSEL : P Semmler QC/J Jobson (Pl) J G Stewart (Def) SOLICITORS : G J Sharah Henville (Pl) McCulloch & Buggy (Def) CATCHWORDS : Negligence - contributory negligence - damages - "a worst case" LEGISLATION CITED : Facts, Shops and Industries Act Workers Compensation Act 1926 CASES CITED : Southgate v Waterford (1990) 21 NSWLR 427 Dell v Dalton (1991) 23 NSWLR 528 DECISION : Ref para 121

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

KIRBY J

Monday 27 November 2000

20009/99 - ELVIERA JONES v EAGLE FORD PTY LTD t/as THOMSON AUTOMOTIVE

JUDGMENT

1 HIS HONOUR: This is an action for damages by Ms Elviera Jones (the plaintiff) against her employer, Eagle Ford Pty Ltd, trading as Thomson Automotive ("Thomson Automotive") (the defendant). The action arises out of an accident at work on 16 May 1996.

The Accident 2 Ms Jones began working for Thomson Automotive in February 1996, that is approximately three months before the accident. She was then about forty years old (born 17 March 1956). She was employed as a car detailer. She, with others, some of whom she supervised, prepared motor vehicles for sale. 3 The premises were at Parramatta. They included a driveway which Ms Jones described as "quite steep". The surface was made of concrete. The areas which adjoined the driveway at the top and bottom were unsealed, the surface consisting of small pebbles the size of marbles. Within days of joining Thomson Automotive, Ms Jones said to her superior, Mr Tyrell Graham (the Car Sales Manager), the following: (T.12) "A. I mentioned it to him that wouldn't it be a good idea to put concrete down the bottom and the top, a, to stop the gravel kicking up on the cars and marking them and also to make it safer for us to walk up and down the walkway. Q. And do you remember what he said, if anything, to that suggestion? A. Yes all he said was, 'Yeah, yeah, one day.'" 4 Pebbles were transferred to the ramp by both cars and pedestrian traffic. A broom was provided nearby to sweep the ramp. It was one of Ms Jones' duties to sweep from time to time, and to arrange for the young men under her supervision to do so, when they were available. 5 However, Ms Jones also had other duties. They included the cleaning and preparation of vehicles. I had the impression that the ramp would be swept when time permitted. In the meantime, pebbles would accumulate, to a greater or lesser degree, depending upon traffic. 6 On 16 May 1996, Ms Jones began work at 6.30 am. She drove a number of cars from one area to another, using the ramp. The ramp was swept about half an hour before her accident. After it had been swept, at least one car (driven by an employee, Mark) used the ramp. Ms Jones walked down the ramp. There was no hand rail. There were no cleats or undulations. It was a smooth concrete surface. She had a bottle of Windex in one hand. Suddenly, towards the bottom of the ramp, she stepped on gravel, and slipped. She said that her feet went from under her. Her left hand hit the side wall. She said she fell, landing on her backside. 7 The defendant raised a number of issues concerning the plaintiff's description of the accident. 8 First, it drew attention to an entry in the notes of Dr Leung. Dr Leung was a general practitioner, and a member of a practice which Ms Jones consulted before and after the accident. He saw Ms Jones on 19 May 1996 (that is, three days after the accident). The history he received was entirely different from that provided by the plaintiff. The entry in his notes was as follows: (Exhibit 2) "19.5.96 Acute sore back. Heavy lifting at work." 9 Secondly, the plaintiff had seen many doctors since the accident. The description of the incident giving rise to her symptoms, as reported by these doctors, varied significantly. She told a number of doctors, according to their reports, that she had slipped but not fallen. Indeed, the impression of one doctor (Dr Trevitt), who saw her soon after the injury, was that she had sustained a "minor slip". 10 Dealing with the first issue. Dr Leung was called to give evidence. He had no independent recollection of his consultation with Ms Jones on 19 May 1996, which was not surprising. It was his belief, nonetheless, having seen Ms Jones in the ensuing years, that her problems were the consequence of having slipped on a ramp at work. His report of 30 July 1999 included the following history: "Ms Jones firstly presented to our surgery on 19/5/96 with lower back pain. She alleged that she has lower back pain after a fall on 16/5/96 at work. She landed on her buttocks and since then the lower back pain slowly build up and radiated down to her right leg. Ms Jones was employed as a yard person and supervisor. She denied any pre-existing back condition before the accident." 11 Dr Leung said that the reference in his notes to "heavy lifting" could have been a mistake. Ms Jones had seen another doctor at the practice, Dr Christensen, before his consultation on 19 May. By referring to "heavy lifting", he was, he said, recording additional information, although he could not now call to mind the context. He did not believe that it was a reference to the cause of the back pain. Where heavy lifting leads to back pain, it was his practice to record the weight lifted. Yet the notes made no reference to any weight. 12 Dr Leung acknowledged, in cross examination, that the medical records of the practice contained no note of Ms Jones having seen Dr Christensen (or any doctor) before his consultation on 19 May 1996. The last entry before 19 May was on 6 May 1996. 13 Dr Christensen has since left the practice. She is thought to be overseas. However, it does seem likely that Ms Jones saw Dr Christensen, and attributed her back and leg pain to a slipping incident, such as that described. On 22 May 1996, Dr Christensen wrote a letter of referral to a specialist, Dr Trevitt. Her letter included these words: "Thank you for seeing Mrs Elviera Jones, 40 years (woman) who has had severe low back pain with paraesthesia in S1 derm of R foot since slipping and stopping herself from falling 1/52 ago. She has been on strict bed rest for 1/52 with panadeine forte and diazepan to no effect." 14 The history provided by Ms Jones to a number of doctors thereafter included the fact that she had seen Dr Christensen soon after the accident. For instance, she told Dr Mahony the following (report 28.4.97 - Exhibit 9) "She continued working, however, about 3 hours later the back pain become worse and she noticed pain in her right leg. She went home about one hour early and sought advice from Dr Christiansen the next day and was referred to Dr Trevitt." 15 Further, Ms Jones' work as a car detailer, although physical, did not involve heavy lifting. She told Dr Beard the following: (report 21.9.98 - Exhibit 9) "Mrs Jones' duties entailed picking up and delivering vehicles, detailing, doing minor repairs and at times, changing tyres. The latter would be the heaviest duty she would do." 16 I accept that Ms Jones' back pain was the consequence of a slipping incident, rather than heavy lifting. Such a finding is consistent with the history given to every doctor (apart from Dr Leung 19.5.96). The heavy lifting referred to by Dr Leung may simply have illustrated the problem which arose through having slipped on the ramp. 17 Let me move to the second issue raised by the defendant. There was variation in the history said to have been provided by Ms Jones to various doctors. Some doctors recorded that Ms Jones saved herself from falling by holding onto a tap at the end of the ramp. Others recorded that she was not certain whether she "hit the ground" (Dr Maloney 13.10.99 - Exhibit 9). Still others recorded a history of her falling, similar to that given in evidence before me. 18 The medical reports must be approached with caution. Ms Jones saw many doctors at the request of her solicitors, and the solicitors for the defendant. These doctors were usually provided with a bundle of medical reports from other doctors. There is the danger, therefore, that errors may be perpetuated in later reports. 19 A more reliable source are the reports created soon after the incident. Dr Christiansen's letter of referral (set out above) suggests to my mind that Ms Jones did not actually fall, although plainly she twisted her back. Ms Jones saw Dr Sheehan, at the request of the workers compensation insurer, on 27 June 1996. Dr Sheehan recorded the following: (Exhibit 9) "When she was asked why that happened she explained that the driveway often has loose pebbles on it. When she slipped she confirmed that she did not fall over because she was able to grab an adjacent tap with her left hand and brace herself against it and a wall." 20 The history taken by Dr Evans on 19 November 1996 was in similar terms (Exhibit 9). I think it more probable, therefore, that Ms Jones did not fall. 21 However, I do not believe very much turns on that fact. The incident she described, including twisting her back, was capable of giving rise to the symptoms which followed, as the doctors acknowledged. Ms Jones said that the accident happened very quickly. I do not see it as a matter to her discredit that she gave a slightly different version several years later, involving an actual fall.