New South Wales Court of Appeal CITATION: Khaya v Container Terminals Australia Ltd [2005] NSWCA 433 HEARING DATE(S): 22 November 2005 JUDGMENT DATE: 9 December 2005 JUDGMENT OF: Giles JA at 1; McClellan CJ at CL at 52; Brownie AJA at 53 DECISION: Appeal dismissed with costs. CATCHWORDS: Motor Accidents Compensation Act - injury must occur at a particular time as distinct from arise out of nature and conditions of work - whether in finding adversely to plaintiff judge failed to appreciate case of aggravation of pre-existing degenerative condition - whether finding erroneous. D The Commonwealth v Ockenden (1958) 99 CLR 215; Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231; Hetherington v Amalgamated Collieries of WA Ltd (1939) 62 CLR 317; CASES CITED: Leo N Dunn & Sons Pty Ltd v McPhillamy [2000] NSWCA 343; Owen v State of New South Wales [2004] NSWCA 165; Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127. Gilbert Khaya - Appellant PARTIES: Container Terminals Australia Ltd - Respondent FILE NUMBER(S): CA 41196/04 L King SC & P Sternberg - Appellant COUNSEL: K Andrews - Respondent Smallwoods Lawyers - Appellant SOLICITORS: Leitch Hasson Dent - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 5351/03 LOWER COURT JUDICIAL OFFICER: Gibb DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41196/2004 DC 5351/2003 GILES JA McCLELLAN CJ at CL BROWNIE AJA Friday 9 December 2005 KHAYA v CONTAINER TERMINALS AUSTRALIA LIMITED Judgment 1 GILES JA: The appellant commenced employment with the respondent in 1996 as a stevedore. Initially he was employed as a casual, and by 1999 as a permanent employee. He drove trucks and did lashing, meaning bolting containers on a ship down with steel rods. He received training in driving fork lifts, semi-trailers with a small cabin used to move containers known as tugs, and rubber tyred gantries. By early 2001 about three-quarters of his time was spent in driving rubber tyred gantries and the remainder in lashing or driving a forklift or a tug. 2 A rubber tyred gantry was used to lift and move containers. It was propelled by its own engine along concrete runways within the container terminal. The driver sat in a cabin suspended from the top of the gantry framework, operating a spreader to lift a container and then moving the gantry to where the container was to be deposited. The appellant sat in a chair operating levers on either side of him, but had to watch closely the spreader and the container beneath him through the glass floor of the cabin. He had to sit forward at the edge of the seat, with his arms beside and to the back of him to operate the levers and with his knees and legs spread and his feet pointing outwards at about forty-five degrees so that he could see between his knees; his head was looking down with his back bent at about forty-five degrees. This was a strained posture, which had to be held for five to ten minutes at a time or possibly longer as a container was lifted and moved. 3 The appellant was working the night shift starting on 17 January 2001. In the early hours of 18 January 2001 there was an incident which he described - "A. I climbed up into the cabin, sat down, started the machine. The trucks came, out of memory, I loaded one and then I was waiting for the next truck at this point because I was still setting up, it was beginning so it takes them a few minutes. While I was waiting I retracted the spreader and as the next guy was coming I went to look for him and I was twisted and looking in the direction of the truck, and what I did was I just sort of dropped a little bit quicker than usual and I usually like just I dropped down and then I was catching myself to stop at the distance. I just felt a massive amount of pain in my lower back. I leaned back in the chair and the pain was just excruciating. I - didn't seem like I could doing anything so I got on the radio and said "I've hurt my back, I'm coming down." I came down out of the machine, I went to first aid. He said lay down for a while which I did, and I spent the rest of the shift laying down on the floor trying to relieve the pain in my back. Q. Just stopping you there, you described to her Honour that your head was turned to the left? A. My whole shoulder actually. What happens is you have glass right around your cabin so you can see the trucks, so you can look for the trucks when they're coming. I actually went like that -- Q. You're leaning down a little bit, looking to the left? A. Looking at the track where the trucks -- Q. And twisting your shoulders around a little bit? A. Yes, that's correct. Q. And that's all to the left, then you said you dropped, do you mean you dropped the apparatus or you dropped your body? A. My upper torso. Q. You said you dropped a bit faster than you normally do? A. Yeah, I sort of flopped down. Q. Is there a reason why you did that? A. No. Q. Had you ever felt pain in your back like that before this occasion? A. Never." 4 Later in his evidence the appellant said that he was looking for the truck that he was expecting to come, that he was not moving any part of the gantry's machinery, and that he was "in essence waiting for the truck to arrive and get into place so that [he] could then lift or drop the container". The seat tilted and reclined, but its swivel system could not be used because when it swivelled it hit something "so no one used that system because of it". 5 It was not in dispute that the respondent was liable to the appellant in negligence for failure to provide a safe system of work. The question in the appeal was whether any award of damages to which the appellant was entitled "relate[d] to the death of or injury to a person caused by the fault of the owner or the driver of a motor vehicle in the use or operation of the vehicle", within the meaning of s 122(1) of the Motor Accidents Compensation Act 1999 ("the MACA"). 6 The question arose because of the different damages regimes under the MACA and the Workers Compensation Act 1987 ("the WCA"). The appellant had claimed compensation under the WCA for injury to his back and neck caused by the nature and conditions of his employment, and a consent award in his favour had been made. He could not recover the modified common law damages for which the WCA provided from the respondent as his employer, because he conceded that his injury did not result in a degree of permanent impairment of at least fifteen per cent (s 151H(1) of the WCA). But the modified common law damages regime did not apply to an award of damages to which Chapter 5 of the MACA applied (s 151E(2)). Chapter 5 of the MACA applied if the award of damages fell within the words of s 122(1) set out above. While the appellant also conceded that he could not recover damages for non-economic loss under the MACA because his degree of permanent impairment did not meet the relevant threshold, he claimed to recover damages for economic loss. 7 The respondent was the owner of the gantry. At the trial the respondent disputed that the gantry was a motor vehicle within the meaning of the MACA, but the judge found that it was and there was no cross-appeal or notice of contention in that respect. If any award of damages related to "injury" to the appellant as that word was used in s 122(1), fault of the respondent in its use or operation was not in issue. The issue posed before the judge was whether there was "injury" to the appellant within the definition in s 3 of the MACA, relevantly - " … personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during - … (iv) such use or operation by a defect in the vehicle." 8 The judge held that it was necessary that the injury be what she described as a "frank injury", referring to Leo N. Dunn & Sons Pty Ltd v McPhillamy [2000] NSWCA 343, Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231 and Owen v State of New South Wales [2004] NSWCA 165, and that the appellant's condition was not the result of a frank injury on the night shift but was the result of degenerative change aggravated by the ergonomically unsatisfactory posture of the years of his driving of the gantry. She held also that, if there were a frank injury, it was not a result of or caused during the use or operation of the gantry by a defect in the gantry, because the gantry was not defective only because its operation in a particular manner might lead to progressive injury. In case she was in error in these respects, she assessed damages for economic loss at a little over $410,000.00. Injury 9 In Leo N Dunn & Sons Pty Ltd v McPhillamy the plaintiff pleaded that he suffered back injury through sitting over a period in a twisted seat in the shuddering cabin of a prime mover. It was held that he did not make a "claim" as defined in s 40(1) of the Motor Accidents Act 1988 ("the MAA"), which referred to a claim to damages "in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle", and that the claim as pleaded was "one relating to something different, namely an injury arising out of the nature and conditions of employment" (at [18]). 10 This did not directly turn on the meaning of "injury", the definition of which in the MAA at the relevant time was materially the same as that in the MACA. Leo N Dunn & Sons Pty Ltd v McPhillamy involved a time limit for commencing proceedings, which did not apply to the commencement of proceedings in respect of a claim within the meaning of the MAA (s 151D(4)). It was submitted that the trial judge had wrongly imported the concept of a motor accident as defined in the MAA. Mason P said (at [16]-[18] - "16 I have no difficulty with the submission that what happened here does fall within the concept of a "claim" as that definition stands alone in s40 (1). That definition does not pick up provisions relating to a motor accident or require that the claim arise out of a motor accident or even a series of motor accidents, at least in the sense of motor accidents as events occurring at a particular point of time. 17 However, I have concluded that his Honour was correct in his broad reasoning. In my view, one should start with examining the purpose of s151D(4) as it appears on the face of that section. I have indicated what I think it to be. It is not looking just at picking up the definition of the word "claim" as found in s(1) [sic: s 40(1))] of the Motor Accidents Act, even though that definition serves the function of defining that word for the purpose of the whole of Part 5 thereof. The word "claim", when found in s 40, appears in a context and with a purpose, namely that of regulating due notice to insurers and the timely and efficient prosecution of proceedings in courts. That Part seems to me to be directed and only to be directed at the type of accident that occurs at a fixed point of time. 18 I am not suggesting that there cannot be more than one accident giving rise to perhaps a single injury and an overlapping set of obligations with respect to traffic reports, proceedings and the like. Nevertheless, I would accept the submission of counsel for the opponent that the claim as propounded in the draft statement of claim is one relating to something different, namely an injury arising out of the nature and conditions of employment." 11 Meagher JA said succinctly (at [22]) that "the word claim when used in Part 5 of the Motor Accidents Act means claim arising out of a motor accident, notwithstanding the more limited definition in s 40(1)". Heydon JA agreed with his brethren. The distinction was between an accident causing injury and nature and conditions of work causing injury. 12 In Emad Trolley Pty Limited v Shigar the plaintiff, who was injured when he fell from a trolley truck while collecting shopping trolleys, pleaded that he suffered his injury due to an unsafe system of work. It was held that, despite the pleading, his was a claim within the similar definition of a claim in the MACA. With reference to Leo N Dunn & Sons Pty Ltd v McPhillamy, Hodgson JA observed (at [6]) that it would have been different if it had been "in respect of an injury caused progressively over a period of time, even if caused by the fault of the owner of a motor vehicle, and even if a result of and caused by the driving of that vehicle…". However, his Honour went on - "Chapter 4 of the MAC Act is plainly directed at regulating claims arising out of motor accidents, and has no application where an alleged injury is caused, not by a motor accident, but progressively over a period of time: see s 67. Accordingly, ss70 and 108 have no application where there is no motor accident, even though there may be an injury and a claim as defined by the MAC Act." Accordingly, his Honour's observation did not turn on the meaning of "injury". 13 These cases were applied in Owen v State of New South Wales. The plaintiff's painful back was aggravated by a bumpy ride on an unpadded bench in a prison van. A defence was raised that his claim in that respect fell within the MAA and must fail because steps required prior to bringing proceedings in respect of a claim had not been taken. Campbell AJA, with whom Beazley and Ipp JJA agreed, said that it was not necessary to decide whether the plaintiff's injury was an injury as defined in the MAA (at [47]), but that for the injury to be caught by Pt 5 of the MAA (which required the steps) it must be "caused by a motor accident which occurred at a fixed point of time" (at [58]). A fixed point of time was distinguished from a fixed instant of time, with recognition that a motor accident can occur over some seconds or longer, but it was said that for a motor accident to be caught by Pt 5 it must be "sufficiently circumscribed in time to allow it to be identified as such and to set in train the reporting and other provisions of the Part" (at [62]). Again, the distinction was between injury occurring at a particular time (caused by an accident) and injury not so occurring. 14 The appellant accepted that the provisions of the MACA "as they related to motor accident claims" had no application where an injury was caused progressively over a period of time. The submissions on appeal were directed to whether the appellant's back injury was an injury within the meaning of the MACA, and the appellant submitted that, on the balance of probabilities, he had sustained disc lesions or herniations on 18 January 2001 which constituted the requisite injury. 15 Section 122(1) does not refer to a claim or to a motor accident, although s 122(2) does say that Chapter 5 "does not apply to or in respect of a motor accident occurring before the commencement of this Act". By extension from the above cases, however, Ch 5 of the MACA dealing with damages is concerned with injury from "the type of accident that occurs at a fixed point of time" (Leo N Dunn & Sons Pty Ltd v McPhillamy at [17]). While it may come down to whether there was a frank injury, the phrase hallowed by usage in contrast with injury from the nature and conditions of work, the task is one of identifying the injury and determining whether it was an injury occurring at a particular time as distinct from one arising out of the nature and conditions of work. If it was, it is then of course necessary to address the other elements in the definition of injury in the MACA. 16 The appellant maintained that he had experienced only stiffness, albeit involving some back pain, before the pain at the time of his movement on the night shift. The judge found that he gave his evidence openly and honestly, but that he was not reliable in this respect. There were numerous occasions, in histories taken by doctors and in documents more directly emanating from the appellant, of reported back pain in the years preceding January 2001, and the judge found that he repeatedly reported to his various doctors that he had suffered from back pain "albeit that the pain became strikingly acute in the early hours of 18 January 2001". She referred also to an employee's compensation form completed by the appellant on 23 January 2001, in which he described the "accident" causing injury in the terms, "Over a period of time from lashing tug driving and RTG. Over the last few weeks its gotten worse. I found bending to be painful". 17 There was nonetheless a finding that the pain became acute on 18 January 2001, when the appellant moved in the manner he described. The judge accepted that the appellant was thereafter in genuine pain, and was significantly and permanently affected. Was there an injury occurring at that time? 18 The judge's reasoning was as follows. She found that the appellant's posture operating the gantry put strain on his back "manifested as disc narrowing visible upon x-ray only about 37 days after [the appellant] found himself in such pain that he stopped work". After detailed consideration of the medical evidence, she found that the x-rays and scans of the appellant's lumbar spine after 18 January 2001 showed moderate narrowing of the L4/5 disc and severe narrowing of the L5/S1 disc and some disc bulging, and that the damage so visible was not damage which could have occurred at the time of the movement on the night shift but was degenerative change which had occurred over months or a year or more; in particular, that the x-rays taken on 23 February 2001 showed change which occurred prior to that date and "not in any movement occurring that day". She postulated that "[o]n that analysis, the cause of the damage to [the appellant's] back was not a frank injury which occurred in the early hours of the 18th of January 2001, or otherwise within a matter of less than six weeks of 23 February 2001, whether there be other relevant trauma or not". Then further considering the medical evidence in detail under the heading "Medical opinion as to the cause of the plaintiff's injury", she declined to accept that the appellant had further injured his back at the time of the movement and that there was then a "super-added injury" in combination with the degenerative change. 19 Hence the judge concluded - "I find that the injuries which today disable Mr Khaya are not a result of a frank injury on the 17th/18th of January 2001. I find that these injuries – which are real and significant – are the results of degenerative change aggravated by the ergonomically unsatisfactory nature of the postures which he adopted (and held) repeated in the years that he worked as a driver of the rubber tyred gantry. I find that the plaintiff suffers for [sic] a degenerative condition which had been aggravated – and exacerbated – over the years by repeated and repetitive awkward posture required of him by his employer, and lifting of weights in the course of lashing. These injuries are almost classically those caused by the nature and conditions of the work place, notwithstanding that Mr Khaya was a particularly vulnerable worker. However, that is not a finding which relevantly assists the plaintiff in the proof of a claim for injury under the Motor Accidents Compensation Act 1999 (NSW), notwithstanding that it demonstrates manifest causal nexus between workplace, work condition` and disabling injury. I find no frank injury occurred in the early hours of the 18th of January 2001, nor indeed at any other date." 20 The appellant's submissions came down to the submissions - (a) that the judge erroneously approached the case as one of disc damage either by degenerative change or by frank injury on 18 January 2001, and failed to appreciate a case of aggravation of pre-existing degenerative change by a particular incident on 18 January 2001; and (b) that the judge erred in her consideration of the medical evidence leading to her conclusion that there had not been a frank injury on 18 January 2001. 21 The appellant said that her Honour paid insufficient regard to his onset of severe back pain when he moved as he described, that the twisting and flexing forward could cause disc lesions and consequent pain, and that on the balance of probabilities disc lesions or herniations were traumatically suffered on 18 January 2001 and brought his significant and permanent affectation. He said that injury in these circumstances was not injury caused progressively over a period of time, but was analogous to "injury by accident" as distinct from incapacitation by a disease as considered in cases such as Hetherington v Amalgamated Collieries of WA Ltd (1939) 62 CLR 317 and The Commonwealth v Ockenden (1958) 99 CLR 215. 22 Enquiry into injury for the purposes of the MACA is different from inquiry into injury by accident for the purposes of worker's compensation legislation, and in any event the latter requires an incident in the employment bringing a distinct physiological change (see The Commonwealth v Ockenden at 224). The judge did say at one point that the disc narrowing shown by x-ray was "conclusive of the fact that the relevant injury had occurred some time earlier than the 17/18th of January 2001", but that was followed by her consideration of and findings as to the pre-existing degenerative change and the medical opinions as to the cause of the appellant's injury, in the course of which she directly considered whether there had been injury to the appellant's back on 18 January 2001 additional to the degenerative change. At a number of places in the reasons, an understanding of which was not assisted by considerable length and repetition where concise statements of issues and findings would have been preferable, there was reference forwards and backwards to other of their parts, and the conclusivity was in my view in the light of the whole of the reasons. In my opinion, the judge did not fail to appreciate a case of aggravation of pre-existing degenerative change. 23 Investigations after 18 January 2001 were by - (a) plain x-rays of the thoracic and lumbar spine taken on 23 February 2001; (b) a CT scan of the lumbar spine on 27 February 2001; and (c) an MRI scan of the lumbar spine on 26 March 2001. 24 A number of doctors provided reports, but only Drs Bentivoglio and Lorentz (called by the appellant) and Matheson and Evans (called by the respondent) gave oral evidence and were cross-examined (in the case of Dr Lorentz, by telephone). The judge observed that Dr Lorentz was "the only reporting doctor to opine expressly that the relevant cause of the injury was a frank injury occurring in the movement in the early hours of the 18th of January 2001". This opinion was in Dr Lorentz's report of 7 October 2004 (it was common ground that references here and elsewhere to 17 January 2001 were to the night shift starting on that day) - " Opinion This man has degenerative changes in the lumbar spine, which he has had demonstrated in February 2001 by the CT scan. I am of the opinion that he may have further injured his back on the 17th January 2001, probably suffering from a small disc protrusion at L4/5 and perhaps L4/5 and L5/S1 [sic]. There is no evidence of any nerve entrapment. I think his continuing pain is due to degenerative changes in the lumbar spine, further aggravated by the injury on the 17th January 2001. The following are my answers to your four questions: (a) It is more likely than not that your client has sustained a back injury on the 17th January 2001. I believe his symptoms are due to a combination of degenerative changes due to the nature and condition of his employment and a super-added injury suffered on the 17th January 2001. (b) In my opinion, the significant disc lesions at L4/5 and L5/S1, as diagnosed by Dr Basser, are capable of causing your client's pain, and it is more likely than not that these lesions occurred on the 17th January 2001. (c) In my opinion, your client's present back symptoms are due to an ongoing aggravation of a pre-existing and only partially symptomatic degenerative condition. … " 25 The judge referred to what other doctors had said about the cause of the appellant's injury, but in the appeal the submissions focussed on the opinions of the four doctors I have mentioned. The judge said that she did not accept Dr Bentivoglio's "opinion as to frank injury" because of "the errors in its basis". She said, immediately preceding her finding set out above - "I do accept his Dr Lorentz' opinion that a frank injury was a possibility. However, I find that it is a possibility that is negated by the overwhelming weight of medical opinion. In that respect, I note that material made available to Dr Lorentz included various medical reports and the results of the CT and MRI scans, but not the x-rays or x-ray reports. That is of some significance in the circumstances where: · There is concurrence that that which is visible upon x-ray is significant (relevantly excluding recency); · Dr Bentivoglio relevantly misread the February 2001 x-ray to see no evidence of damage at L4/5; and · The reports by Dr Matheson, Dr Basser and Dr Bodel were not specific as to that which was observable upon the February 2001 x-ray (as distinct from CT scan), and thus did not correct the error in Dr Bentivoglio's report in his implication that there was no damage visible on the x-ray at L4/5. It seems that Dr Lorentz' opinion and report was thus relevantly infected by Dr Bentivoglio's misreading of the x-rays, although I note that relevantly Dr Bentivoglio's opinion is expressly to the contrary of Dr Lorentz' in respect of the injury at L5/S1. I have preferred the opinion of Dr Evans and Dr Matheson to that of Dr Lorentz." 26 Dr Bentivoglio provided a report dated 29 May 2003. He said that the appellant "would have aggravated pre-existing degenerative changes present [to] his back region and made them symptomatic as a result of the position he had to adopt at work", and that two-fifths of his current disability would be as a result of pre-existing degenerative changes present in his back region and three-fifths would be "as a result of the injury to his back caused by the position he had to adopt at work". This did not attribute particular significance to the appellant's movement on 18 January 2001. 27 In his oral evidence in chief Dr Bentivoglio said that the movement "could cause discal damage easily", and that disc lesion found by Dr Basser at the L4/5 and L5/S1 levels from the CT scan was capable of causing back pain and a complaint of sudden and severe back pain was suggestive of a disc lesion. He did not more specifically opine that there had been a particular injury on 18 January 2001. 28 In a fairly lengthy cross-examination Dr Bentivoglio agreed that the degenerative changes visible on the scans indicated degenerative changes existing prior to January 2001, with some doubt as to the L4/5 level, and he agreed that the posture the appellant was required to adopt could cause the degenerative change but depending on a history of more than occasional bouts of pain. He said that he could not tell from the radiology exactly when the L4/5 level change occurred. 29 Only in re-examination did Dr Bentivoglio say that the three-fifths to which he had referred in his report "would be as a result of that – the incident on, you know, arising from the day". There was further cross-examination, in which he agreed that without before and after radiology he could not say "what injury was caused by what or what actually happened on that day specifically", and - "Q. And you can have over a period of time a gradual build-up of degeneration eventually leading to some form of lesion? A. Yes. Q. And it is possible that although that degeneration is continuing to occur the person might not be aware of the continuing degeneration happening until it reaches a certain point? A. Yes, that can be the case. Q. And it could be that the pain that he feels can be excruciating but only result in a very minor change in the degenerative condition. A. Yes." 30 In further re-examination, he said that the finding of disc damage shown at the L4/5 level in the CT scan of 28 February 2001 was "more likely to be a frank injury rather than a degenerative disc". 31 The judge was somewhat critical of Dr Bentivoglio's evidence so far as he said that the plain x-rays did not indicate damage at the L4/5 level, and preferred the opinions of the other doctors in that respect. She was entitled to prefer them. She said that Dr Bentivolgio's opinion "relevantly relied upon error in his observation of the x-rays", it seems meaning his opinion that the disc damage shown in the CT scan was more consistent with a frank injury than with degeneration. The appellant submitted that it was not correct that Dr Bentivoglio's opinion was undermined by any misreading of the x-rays, because his opinion rested upon the CT scan not the x-rays. I do not agree. The judge was entitled to conclude that an opinion as to the origin of the damage as shown in the CT scan was influenced by the view that the x-ray did not show pre-existing degenerative change at the L4/5 level. I see no error in her Honour declining to accept Dr Bentivoglio's opinion as to frank injury, which was in any event rather qualified on his evidence as a whole. 32 Dr Lorentz recorded a history of developing "very severe, sudden pain" when the appellant was "looking to the left, looking at one of the trucks arriving and in the process he twisted his back". I have earlier set out his opinion from his report of 7 October 2004. He did not explain in the report why he thought there had been a super-added injury suffered on 17 January 2001. 33 Dr Lorentz did not add to his report in oral evidence in chief. In cross-examination he agreed that constant flexing of the appellant's back as he operated the gantry would create trauma, with "small elements and additive elements of trauma over a period of time" contributing to the degenerative changes in the appellant's back, and that as the degeneration advanced it could eventually get to the point where it caused pain. He said that this did not exclude "acute disorder occurring", meaning "for instance a disc protrusion or disc rupture which could be responsible for the pain", although he also agreed that the disc protrusion or disc rupture could be "part of the degenerative process". There was evidence not fully recorded because of transcription difficulties, as I read it amounting to him agreeing that the disc protrusion to which he referred in his report could have been caused by degeneration, but that it "suggested some forces occurred which caused the part to rupture of the disc which is not degenerative but caused by trauma [sic]"; the trauma was more likely to be something more acute than continuous forward flexation although it did not have to be a "major traumatic event". 34 As I have indicated, the judge considered that Dr Lorentz's opinion that a frank injury was a possibility was "negated by the overwhelming weight of medical opinion", and referred to infection of his opinion by Dr Bentivoglio's misreading of the x-rays. The appellant submitted that it was irrational to regard Dr Lorentz's opinion as infected by Dr Bentivoglio's misreading of the x-rays. 35 Dr Bentivoglio's report of 29 May 2003 was provided to Dr Lorentz, together with the reports of Drs Matheson, Basser and Bodel, and it is plain enough that the judge was referring to the information made available to Dr Lorentz through these reports. In his report Dr Bentivoglio said that the plain x-rays showed a marked decrease in the L5/S1 disc space but, conformably with his reading of them earlier mentioned, said nothing about them showing a narrowing at the L4/5 level. Although Dr Lorentz did not refer in his report to the plain x-rays, saying only that he had seen the CT and MRI scans and agreed with the reported findings, the reports provided to him must have been taken into account in forming his opinion. The report of Dr Bentivoglio conveyed what the judge described as an implication, not corrected in the reports of Drs Matheson, Basser and Bodel, that there was no damage visible on x-ray at the L4/5 level, and while the influence may not have been large I do not think the judge's reasoning was not open. 36 Dr Matheson provided a report dated 17 February 2004. He said that the appellant had "degenerative disc disease at L4/5 and L5/S1 associated with facet joint degeneration", and that it was "not a work related condition" but a "constitutional condition". He said that "[t]he event on 17 January 2001 was not an injury as such. It was just that the pain got quite bad and he got out of the crane and could not continue working". The continuing symptoms were "due to his underlying degenerative spinal condition". 37 In his oral evidence in chief Dr Matheson said that the degeneration evident from the x-rays and scans had progressed over at least two years, that they could be symptomatic, and that they had been symptomatic since early 2000 but could have gradually increased consistently with his findings. He said that the movement as described by the appellant was "not activity that would influence the lumbar spine at all". 38 In cross-examination Dr Matheson did not change his views on the assumption of an episode of extreme or excruciating low back pain on 18 January 2001, saying in effect that it was just a progression from no back pain to mild back pain to severe back pain. He agreed that a downward and twisting movement could cause pain and possibly herniation of a "fragile disc", but attributed the appellant's pain to existing disc lesions rather than disc lesions caused by his moving forward quickly in a twisted position. His evidence included - "Her Honour: Q. Why is it the disc lesions cause pain this time but not 20 minutes earlier? A. Your Honour I have no way of answering that question. But the reality of the situation is that the pattern of pain that emerges with people with spondylitic conditions of the spine is episodic, unpredictable and sometimes is relieved by heavy work and sometimes brought on by heavy work. It's an arthritic condition essentially and if you just get those joints into a right position to produce some pain an episode of pain sets in … Q. Well we know that there are disc lesions at L45 and L5S1? A. Yes. Q. And you've said that those lesions are capable of producing pain? A. Yes. Q. Assuming that those lesions were not present at the commencement of his shift because he wasn't in pain? A. But they were present at the commencement of his shift. HER HONOUR: Q. How do you know that? A. Because your Honour it's a chronic degenerative condition with arthritic changes in the facet joints, signal loss with the discs, this is a process that's been present for some considerable time. STERNBERG: Q. But assuming that they were completely asymptomatic? A. Assuming they were completely asymptomatic, yes. Q. Why isn't a sudden forward movement in a forward flex position capable of causing discal damage? A. It's not going to cause discal damage in a normal disc. If you've got an abnormal disc it arguably could be made worse, but we would need to demonstrate some radiological features of that." 39 In the context of the experiencing of sudden severe pain, it was specifically put to Dr Matheson - "Q. Isn't that the case here that there was some further damage to a structure of the body, namely his low back as a result of what he experienced on 17 January? A. No most episodes of back pain will be associated with some inflammation and swelling which is self limiting and goes away and leaves them no worse for that one episode than they were before but at the same time, this is a progressive matter over a period of years." 40 Dr Evans provided a report dated 14 November 2001. He recorded a history that between 1999 and January 2001 there was a gradual worsening of the pain, and that in January 2001 "the back pain had become very troublesome". He gave as his opinion - "DIAGNOSIS: In 1999 Mr Khaya noted the gradual onset of pain in his low back. It would occur when he was bending and lifting at work. It gradually worsened, and caused him to see his local doctor first in January 2001. He spent a period off work, returning to light duties, and, at least partly because of this, was sacked, in July 2001. He continues to experience pain in the back, fortunately not radiating to the legs. The back pain doubtless arises from the damaged, degenerate, L4/5 and L5/S1 discs. He thus experiences pain and stiffness in the low back. The stresses to which his back has been exposed would be unlikely to cause disc damage of this sort in completely normal intervertebral discs. It is thus likely that there is a component of constitutional degeneration, making the discs a bit weaker than average." 41 Dr Evans did not materially add to his report in his oral evidence in chief. In cross-examination he said that a "quick forward flex movement and some twisting at the same time" could cause discal damage in a degenerate disc, although not a healthy disc, and - "Q. And if the pain is sharp and sudden and quite severe immediately following that forward flexation movement, is that something that might be pointing to damage having been sustained to a disc or more than one disc? A. It's consistent with it but not diagnostic of it. I think the correct way to look at this is as a segment at the back so it could be disc damage or it could be facet joint damage at the same level which is a much milder thing. So it's not actually specifically." 42 Asked to assume episodes of back pain and then intense pain in January 2001, Dr Evans regarded it as a history of gradual worsening of back pain, as opposed to discrete injuries, albeit that the last increment in pain was more significant. 43 In re-examination, Dr Evans spoke of trauma to the spine occurring to a minor extent every time a person flexed forward, and said that a degenerative spine which was symptomatic and worsening would not get worse at exactly the same rate and that there could be increases in pain greater than earlier increases. 44 In Dr Ganora's report he gave the opinion that the appellant had "sustained a lumbo-sacral injury in association with his work activities in January 2001". Dr Khan referred to aggravation of a degenerative back condition as a result of the general nature and conditions of employment "including the work incident of 17.1.01". Dr Garvey related the appellant's condition to his employment as a stevedore operating the gantry. Dr Bodel referred to disc pathology at L4/5 and L5/S1 arising "as a result of the nature and conditions of [the appellant's] work as an RTG driver … ", and said that the appellant "gives no history of any other accident or injury which could have caused his pathology seen on the MRI scan". Dr Hession, who recorded a history of exceptionally severe pain as at 19 January 2001 but not of the movement on 18 January 2001, diagnosed degenerative lumbar spondylosis "likely to have been aggravated by the nature and conditions with his employment … ". None of these doctors were more specific as to injury at a particular time. Some of the opinions were of uncertain value because it is not clear that account was taken of sudden severe pain in the specific movement on 18 January 2001. 45 There could be no certainty in finding what happened to the appellant's back, if anything, on 18 January 2001. There was degenerative change, constitutional or the result of past incremental trauma from the flexation of the appellant's back as he had driven the gantry. The acute pain on 18 January 2001 may have been an increase in the progression of pain without any change in the condition of his back, because he got his joints in the right position to produce pain (in the language of Dr Matheson) or with an incremental advance in the progressive condition which would not qualify as an injury. Or it may have been what the judge referred to as a frank injury, on the appellant's submission disc lesions or herniations occurring at that time. 46 The medical opinions differed, but there was a sound basis for coming to the conclusion that there had not been a frank injury. At least in part her Honour's conclusion was likely to have involved the impression made upon her by the doctors she saw and heard: as was said in Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 at [60], "A judge may be persuaded by a combination of the material force of an expert's views together with the way in which the evidence was given". She did not, of course, purport to come to her conclusion solely on the basis of impression, but engaged in examination and analysis of the evidence. 47 The judge stated it highly when she referred to an overwhelming weight of medical opinion against the possibility of a frank injury, and the influence upon the opinions of Dr Bentivoglio and (derivatively) Dr Lorentz of what was not seen in the plain x-rays may not have been large. I do not think her Honour regarded it as determinative, and as part of the analysis it was material. The appellant submitted that the acute pain of 18 January 2001 was self-evidently more than an escalation of periodic pain from the degenerative condition, and all but compelled the conclusion that a marked physiological change had occurred. But that was not accepted by (for example) Dr Matheson, and I am not persuaded that the judge was in error in her finding that there was not a frank injury; or as I would prefer to put it, that an injury did not occur at the time of the appellant's movement on 18 January 2001. Defect 48 The judge was satisfied that, if there was a frank injury, it "relevantly arose in and from the use or operation of the vehicle … by such use or operation". The defect in question at the trial was the design of the cabin of the gantry such that it was ergonomically unsafe for the driver of the gantry. The judge did not accept that the injury was occasioned "not by the existence of the defect (if there be such) but by the requirement/direction that the employee work in the ergonomically unsound environment constituted by the cabin". Her Honour's reasoning thereafter, as I understand it, was as follows. The design of the cabin exposed the driver to the possibility, indeed likelihood, of what she variously described as over-use type injury, the risk of injury from overuse and awkward position, and injury by reason of repeated awkward posture. It did not expose the driver to risk of "frank injury per se", because "risk of over-use style injury resulting from the awkward posture adopted repeatedly … is not a risk of frank injury". Hence the conclusion - "But the vehicle is not 'defective' only because its operation in a particular manner may lead to (progressive) injury. I find no relatively causative defect implicated in any frank injury." 49 This appears to have been in part a conclusion that the defect was not a defect "in" the gantry, because the gantry could be operated without risk of frank injury; and also in part a conclusion that, if there were a frank injury, it was not "by" the defective in the gantry, because the defective design of the cabin did not require that the appellant move as he did on 18 January 2001. The judge explained the latter more fully in the course of her reasons – "Part of the difficulty which bests the plaintiff's case here is that the frank injury of which he complains (which I find did not occur) he says resulted from his dropping or flopping into position. It is difficult to envisage any mechanical device which will prevent a worker from dropping/flopping into position (in circumstances where such is not a requirement of assuming that position). It is very difficult to identify a relevant defect or shortcoming in that respect. I am conscious that the plaintiff identifies as a relevant defect (the lack of relevant mirrors, camera or swivel seating) might eliminate the need to adopt the position which is (I find) ergonomically unsound. But the complaint before me is of the movement made to get into that position (in both type and pace) – not of the stress involved in holding that position. Further, the plaintiff's evidence rebuts the proposition that the pace or style of the dropping/flopping motion which he performed on the 17/18th of January 2001 might be eliminated by relevant alteration. The reality is that there was no relevant need for the quick dropping/flopping motion, and it was not characteristic of Mr Khaya's work practice. Mr Khaya testified frankly that on this occasion he moved in a manner different from his normal workplace practice: ' … I just sort of dropped a little bit quicker than usually and I usually like just I dropped down and then I was catching myself to stop at the distance … '." 50 The judge's reasoning and conclusions in these respects were challenged, and I have some difficulty with them. It is a contentious area, and since it is not necessary to deal with the question of a defect in the gantry, I prefer not to do so. It should not be taken that I agree with the judge's disposal of the question of defect. Orders 51 The appeal should be dismissed with costs. 52 McCLELLAN CJ at CL: I agree with Giles JA. 53 BROWNIE AJA: I agree with Giles JA. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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