New South Wales Court of Appeal CITATION : State of New South Wales v Petrovic [2004] NSWCA 234 HEARING DATE(S) : 12/07/04 JUDGMENT DATE : 12 July 2004 JUDGMENT OF : Giles JA at 39; Ipp JA at 1; Tobias JA at 43 DECISION : Appeal dismissed with costs. CATCHWORDS : WORKERS' COMPENSATION - Hospital worker struck twice by a food trolley - Challenge to findings of fact. ND LEGISLATION CITED : Workers Compensation Act 1987 (NSW) CASES CITED : Abalos v Australian Postal Commission (1990) 171 CLR 167 PARTIES : State of New South Wales (Appellant) Jovanka Petrovic (Respondent) FILE NUMBER(S) : CA 40773/03 COUNSEL : M A Elkaim/P Khandhar (Appellant) D E Andrews (Respondent) SOLICITORS : Turks Legal (Appellant) George Traikovitch & Co (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 12556/01 FILE NUMBER(S) : LOWER COURT Herron ADCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40773/03 DC 12556/01 GILES JA IPP JA TOBIAS JA Monday 12 July 2004 STATE OF NEW SOUTH WALES v PETROVIC Judgment 1 IPP JA: The respondent was employed by the appellant. One of her tasks was to push food trolleys along various floors at Wollongong Hospital. The trolleys were relatively large. They were so high that the respondent could not see over the top of them. They were also relatively heavy and at times were difficult for one person to push. 2 During the period material to the issues in this appeal the appellant's practice was to arrange for only one person to push a trolley. Since then the practice has changed and three persons are given the task of guiding a trolley through the hospital floors. 3 On two occasions, namely on 16 April 2000 and 15 March 2001 the respondent was struck by a trolley from the rear. On each occasion she was pushing her trolley and another employee of the appellant was pushing a trolley behind her and the trolley behind her struck the rear part of her body. The respondent suffered injuries in consequence of these two accidents and brought proceedings against the appellant for damages for personal injuries. The respondent initiated one set of proceedings in which the two causes of action, one based on the occurrence of 16 April 2000 and the other based on the occurrence of 15 March 2001, were pleaded. 4 The trial judge, Herron DCJ, found that the appellant was negligent as alleged by the respondent and there is no dispute on appeal about that finding. 5 His Honour found that the second accident caused the respondent to suffer damages which exceeded the threshold set out in the Workers Compensation Act 1987 (NSW) and awarded her damages in respect of that accident. 6 As regards the first accident, although his Honour found that the respondent had been injured in the way in which she alleged, his Honour found that the injuries she sustained did not exceed the necessary percentage of the most extreme case as required by the Workers Compensation Act and therefore she did not surmount the threshold. For that reason, his Honour did not enter judgment for her in respect of the first accident. 7 Herron DCJ said that, in assessing the respondent's damages that arose from the second accident, he would bear in mind the damages that she sustained in the first accident. 8 The injuries that the respondent sustained in the first accident were, according to her, the left side of her back, her shoulder and her arm and left side. Herron DCJ noted: "So far as her back was concerned she said that she had pain between the spinal column and the left side of her back. Also she spoke about problems in the shoulder blades area and in the thoracic region." 9 It is clear from a close examination of his Honour's reasons that his Honour was not attempting to identify the precise area of the back that was injured in the first accident. 10 The evidence in regard to the injuries the respondent sustained in the first accident can only be described as diffuse. This may have resulted from the fact that the respondent is an immigrant from Yugoslavia and was required to give evidence through an interpreter. She was able to speak English to some degree but not well enough to make herself understood in court proceedings. At the time of the accident she was unable to read or write in English. Her difficulties with the language had an affect on the way in which she gave evidence and affected the reliability of the information she gave to various doctors, as set out in their reports which were tendered in evidence. 11 My impression of the respondent's evidence regarding the injuries she sustained in the first accident is that she experienced pain in various parts of her back, particularly (but not exclusively) between her shoulder blades. I do not think that she intended to exclude her lower back from the injuries she then received. 12 As regards the second accident, the judge found that a great deal of force was involved when the trolley struck the respondent. In her evidence-in-chief, the respondent said that she felt the impact of the trolley on her lower back and her left leg. She said the pain went through the whole of her body. In cross-examination her evidence again was diffuse. She said that the trolley hit her "straight" in her back. She said that "all" her body was hit. She said the trolley actually covered the whole of her body. She said her back and leg were damaged. She had particular difficulty in distinguishing between the place where her body was hit and the pain which she experienced. 13 Again on a close examination of the evidence it is difficult to make any precise finding as to the specific area of the back about which the respondent was testifying. 14 Herron DCJ found that the respondent's left ankle area was the area struck by the trolley on the second occasion. He made no finding that the trolley struck her back. The judge concluded, however: "[S]he did suffer a jarring and this would be understandable if the trolley had collided with her, having regard to its weight and design." 15 His Honour found in effect that the jarring effect of the blow that the respondent received to her left leg affected her back. His Honour said: "I think the situation is that I must look at the second accident as having involved not only an injury to the lower left leg but also an injury to the back which consisted of an aggravation of a pre-existing condition". 16 In consequence of this finding his Honour awarded damages in respect of the second accident. The appellant challenges this finding. 17 There are a number of grounds of appeal but I think that they can be fairly summarised (in relation to the principal point sought to be made) as being based on two contentions. 18 The first is that the finding that the respondent suffered an injury to her lower back in the second accident was glaringly improbable. 19 The second is that his Honour erred in finding that the second accident aggravated the previous injury to the lower back caused by the first accident. The basis of this submission was that there was no injury to the lower back in the first accident, only to the upper back; hence, it was said, there was a fundamental error in his Honour's finding that in the second accident the respondent aggravated an injury to the lower back resulting from the first accident. 20 As to the first argument, there was ample evidence from the respondent and her husband that she suffered pain in her lower back virtually immediately after the second accident. The attack mounted against the finding is based on other evidentiary material. This falls into two categories. The first is comprised of a claim form, an accident report form and a casualty form completed by others based on what apparently was said to them by the respondent. The second is the evidence of medical practitioners and in particular medical practitioners retained by the respondent herself. 21 The claim form, accident report form and casualty form tendered in evidence omitted any reference to a complaint by the respondent as to injury to her lower back. Normally, evidence of this kind would have substantial probative force, particularly evidence which was virtually contemporaneous with the accident, but in this case the value of the material is diminished by two important factors. 22 Firstly, there is the language difficulty to which I have referred. Secondly, the authors of these reports were not called to give evidence and were not cross-examined. The judge was therefore faced with the oral testimony of the respondent and her husband to be evaluated against written testimony by persons not called to give evidence in circumstances under which they recorded conversations with a person whose ability to understand and speak English was highly questionable. 23 In these circumstances it seems to me his Honour was entitled to prefer the evidence of the respondent and her husband in this respect. 24 I turn to the second category of evidence on which the appellant relied, namely, the evidence of medical practitioners. The main point made on behalf of the appellant in this respect is the respondent's delay, apparent from the reports of the medical practitioners, in complaining about pain to her lower back. 25 Dr Kirychenko, in a report dated 12 April 2001, made no reference at all to the respondent making any mention of injury to the lower back. On the other hand, Dr Boksic, the respondent's general practitioner, in a report dated 5 July 2001, stated that he arranged a CT scan of the lumbar spine. This testimony gives rise to an inference that the respondent complained to the doctor about her lower back. The CT scan must have been arranged because of the respondent's complaints concerning her lower back. The report does not reveal when the scan was taken but this must have occurred between 19 March 2001, four days after the accident, and some time in July 2001. 26 The focus of this aspect of the appellant's argument was on a report by Dr Manohar, a specialist rheumatologist, who treated the respondent. Dr Manohar provided a detailed account of several consultations he had with the respondent and he recorded the various complaints she made in the various consultations. 27 It was only on 26 May 2001 that the respondent first mentioned to Dr Manohar that she had pain in her lower back. Dr Manohar recorded the complaint as extending from the left foot up into the lower back region. At another time the doctor recorded pain extending from the lower back region to the left foot. The appellant sought to make a point from these different accounts. In my view however no adverse inference can be drawn from differences in description between pain extending from the foot to the back and pain extending from the back to the foot. Leaving aside the language problems the respondent had, subjective location and description of pain is notoriously unreliable. 28 Delay on the part of the respondent in advising Dr Manohar of pain in her lower back is a matter that the appellant raised at trial. It was, however, not regarded as significant by the judge. There were good grounds on which his Honour could adopt this approach as Dr Manohar, himself, did not appear to think that the delay was of an important factor. 29 Dr Manohar saw the respondent on 29 March 2001, 10 April 2001, 26 April 2001, 3 May 2001, 26 May 2001 and several times thereafter. She told Dr Manohar about the second accident during the first consultation but only mentioned the first accident during the consultation of 3 May 2001. She did not mention pain to her lower back in the first four consultations, but first did so in the consultation of 26 May 2001. In subsequent consultations she continued to complain about lower back pain. Dr Manohar was of the view that both accidents contributed to the respondent's lower back condition. Having recorded that the respondent had mentioned the two accidents to him, he expressed the opinion that the respondent's injuries could reasonably be attributed to what had occurred at her place of work. Despite the fact that the respondent only complained to Dr Manohar on 26 May 2001 about her lower back, it is quite plain that he was of the opinion that the second accident caused an injury to that region. 30 I would point out that Dr Manohar reported that a radiological examination had shown disc bulges at the L3-L4 and L4-L5 level. This demonstrated clinical proof that there could have been pain in the lower back as asserted by the respondent. 31 In my opinion it cannot be said that the judge's findings that the injury to the lower back did occur, and that the second accident significantly contributed to that injury, were glaringly improbable. 32 In my view the second argument of the appellant also fails. I have explained the diffuse nature of the testimony given by the respondent as to the injury suffered to her back in the first accident. I have expressed the view that the respondent's evidence was to the effect that, after the first accident, she experienced pain in her back, generally, and she did not exclude her lower back from the pain she was then experiencing. 33 In my view his Honour was entitled to find that there was an injury to the lower back in the first accident and that injury was aggravated in the second accident. There is evidence on which his Honour could rely to make such a finding. I should say that, even if his Honour erred in that respect, I do not see how that assists the appellant when regard is had to the finding that, as a result of the second accident, the respondent suffered an injury to her lower back. 34 There are two other matters that remain to be dealt with. 35 One is a ground of appeal that complains about the costs award. The appellant points out that each accident was pleaded as a separate incident and submits that the failure of the respondent to obtain a judgment in respect of the first accident should have given rise to an order for costs in the appellant's favour in respect of that accident. 36 The judge did not make such an order because he held that the two accidents were inextricably bound up with each other and, even if no claim had been made in respect of the first accident, that accident would have to have been investigated in order to determine the pre-injury condition of the plaintiff. In my view, his Honour was entitled to take this view and I would dismiss the ground in question. 37 Finally the appellant complains about the award his Honour made in respect of future economic loss. The complaint is that his Honour erred in assessing future economic loss at the same rate through to age sixty-five. The appellant submitted that the evidence did not justify applying the loss which his Honour calculated at $250 per week for the full period from the date of the trial to age sixty five. In my opinion however the evidence entitled his Honour to come to this conclusion. There was ample testimony to the effect that the respondent's disabilities were permanent. 38 In the circumstances I would dismiss the appeal with costs. 39 GILES JA: I agree with the order proposed by Justice Ipp, and substantially with his Honour's reasons. I would place a slightly different emphasis on one matter in the principal area argued by the appellant, essentially its submission that the judge's finding of injury beyond injury to the respondent's calf in the second accident was glaringly improbable within the Abalos principles [Abalos v Australian Postal Commission (1990) 171 CLR 167] against the background of which the appeal was argued. 40 The contemporaneous notifications and immediate consultations with doctors did not refer to back injury and, as his Honour has said, in other circumstances that would weigh quite strongly in that area. An author of an accident report and a claim form in relation to the second accident, Fiona Kent, did give evidence. The other evidence suggested that she wrote in a description of the accident as a description given by the respondent according to what the respondent said to her, and accordingly there was at least some reason to attribute the lack of reference to back injury to the respondent. The cross-examination of Fiona Kent did not really take this matter up. 41 For myself I would place more emphasis on the fact that the respondent undoubtedly suffered a significant injury to her calf in the second accident, and it seems was very concerned by it. On my reading of the evidence she said clearly enough, although not in strong terms, that her attention was concentrated on the injury to her calf, and in my opinion that perhaps provides a better explanation for absence of immediate reference to back injury. 42 Taking the evidence as a whole I am not persuaded that there was the necessary glaring improbability. 43 TOBIAS JA: I agree with the orders proposed by Justice Ipp and with his Honour's reasons and also as supplemented by the remarks of the presiding judge. 44 GILES JA: The order is therefore that the appeal is dismissed with costs. ********** Last Modified: 07/26/2004 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. 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