New South Wales Court of Appeal Spooner-Hart Prosthetics Pty Ltd v Jones [2005] NSWCA 2 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 10 September 2004 JUDGMENT DATE: 3 February 2005 JUDGMENT OF: Mason P at 1; Giles JA at 2; McColl JA at 48 DECISION: (1) Appeal allowed; (2) Set aside the verdict and judgment for the plaintiff and in lieu thereof verdict and judgment for the defendant; (3) Plaintiff to pay the defendant's costs of the proceedings in the District Court and of the appeal and to have a certificate under the Suitors Fund Act if otherwise qualified. CATCHWORDS: Negligence - repairer of leg callipers - judge found negligence in failure to follow up application for health service approval of repairs - not within case as pleaded or conducted - no duty to do so. ND Spooner-Hart Prosthetics Pty Ltd - Appellant PARTIES: Allan Arthur Jones - Respondent FILE NUMBER(S): CA 40712/03 D J Fagan SC & P Frame - Appellant COUNSEL: B J Gross QC & D J Williams - Respondent Hunt & Hunt - Appellant SOLICITORS: Matthews Williams, Forbes - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 29/01(Forbes) LOWER COURT JUDICIAL OFFICER: Christie DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40712/03 DC 29/01 (Forbes) MASON P GILES JA McCOLL JA Thursday 3 February 2005 SPOONER-HART PROSTHETICS PTY LTD v JONES Judgment 1 MASON P: I agree with Giles JA. 2 GILES JA: The respondent contracted polio as an infant, and thereafter wore callipers on his legs. (Callipers is also written calipers; I adopt the dictionary preference.) The appellant made and repaired orthotic devices, including leg callipers. From at least the early 1990's it supplied and repaired the respondent's callipers. 3 On 5 February 2000 the respondent fell and was injured when his left leg calliper gave way at the knee joint. He claimed damages from the appellant, and on 22 July 2003 Christie DCJ found a verdict and gave judgment in his favour for $50,000. By leave granted on 5 March 2004, the appellant appealed on liability and in relation to payment of costs following a re-opening of the respondent's case. The respondent's pleaded case 4 The respondent brought his case in negligence and alternatively for the supply of defective goods in contravention of the Trade Practices Act 1974 (C'th). The statutory claim was not dealt with by the judge or raised in the appeal, and need not be considered. 5 The respondent's pleading alleged that the appellant supplied him with a new set of callipers in 1997; that they were returned to the appellant for repair in August 1999; that the respondent was "advised to wear his old calipers … whilst the new calipers were with [the appellant] for repair"; that the old callipers were "in a poor state of repair, the joints being worn, and were fastened at the knee joint by an elastic band, which was prone to breakage"; that the respondent fell and was injured when the old calliper gave way; and that the respondent's injuries were caused by the appellant's negligence. The negligence particularised was - "(i) Allowing the Plaintiff to wear calipers which it knew or ought to have known were badly worn and in a poor state of repair. (ii) Allowing the Plaintiff to wear calipers which it knew or ought to have known that the elastic banding on the joint had been replaced by the Plaintiff with inferior elastic. (iii) Failing to replace the joint when it knew the joint was badly worn. (iv) Failing to warn the Plaintiff of the risk of injury when wearing the calliper in such a state of repair. (v) Failing to provide with a replacement caliper when it knew of the risk of injury to the Plaintiff wearing a caliper with an inferior and worn elastic band." Background 6 The respondent lived in Forbes. The appellant was based in Port Kembla, but conducted orthotics clinics every three weeks at Orange Base Hospital. The respondent attended the clinics from time to time. 7 The respondent was on an invalid pension. His callipers were supplied through a government grant under a Programme of Appliances for Disabled People ("PADP"). For the supply or repair of callipers a form was filled out and submitted to the Mid-Western Area Health Service ("the Service"). The form was an application completed by the disabled person and signed by that person, but with a section completed by the medical practitioner prescribing the appliance and a section completed by the "therapist/nurse". The appellant often completed the "therapist/nurse" section. The Service decided whether or not to authorise the supply or repair, and if it gave approval issued an order form to the supplier/repairer with a copy to the disabled person. There was evidence that the Service could take six months or more to approve an application for an orthotic device. 8 The respondent was born in 1951, and contracted polio at the age of two. Apart from an unspecified period when he did not have a calliper on his right leg, he had always worn callipers. In 1984, 1992 and 1993 he had broken bones in his left leg in falls. A letter of 29 November 1996 from Dr John Morgan, it seems his treating specialist, said that he fell a lot and lost balance from time to time; it referred to back and hip pain, and suggested use of a motorised wheelchair. Another letter of 27 February 1998 from Dr Morgan referred to increasing weakness and pain and said that the respondent "is mainly in a wheelchair now although he has been walking with calipers up until recently". 9 The appellant had supplied the respondent with callipers in 1993 ("the 1993 callipers"), through the PADP. The right leg calliper was a below knee calliper. The left leg calliper was an above knee calliper with a knee lock. According to the appellant's records, it made repairs to the left leg calliper in July 1995 and supplied a new right leg below knee calliper in August 1995. In June 1997 the appellant supplied new right and left leg callipers of the same nature ("the 1997 callipers"). In July 1997 it made some adjustments to the callipers. In February 1998 the left leg calliper was modified by the addition of a knee spider, a feature holding the knee firmly in place. 10 Apart from his attendances at the clinic, the respondent did some maintenance on his callipers, and performed some modifications, including to the 1993 callipers. He did not agree that the appellant's personnel told him not to do his own modifications, but Mr Spooner-Hart and Mr Jordan of the appellant gave evidence of telling him and telling him that it was dangerous for him to do so. The judge did not make a clear finding, but it can readily be accepted that they did. The attendances at the clinic in 1999-2000 11 The respondent attended the clinic on 21 July 1999. This was the pleaded occasion of returning the 1997 callipers for repair. The appellant's attendance record stated "PADP form completed – measures taken for long leg caliper". 12 According to the respondent, the 1997 callipers had never fitted properly, and he had only worn them "on and off" and otherwise wore the 1993 callipers. He said that he attended the clinic to have the 1997 callipers altered, and that he was wearing the 1993 callipers. The right leg calliper apparently supplied in 1995 received scant attention at the trial, and since the calliper which gave way in 2000 was the left leg calliper the involvement of a 1995 calliper need not be pursued. 13 The respondent saw Mr Spooner-Hart and Mr Jordan. There was conflicting evidence of what was said and done. At the heart of the conflict was whether the respondent left the 1997 callipers with the appellant, or whether he took them away again. It was common ground that the 1993 callipers were worn and in poor condition, and were dangerous to wear. If the respondent took the 1997 callipers away again, however, the particularised negligence at the least took on a very different complexion. 14 In summary, on the respondent's evidence he asked that the 1997 callipers be altered; Mr Spooner-Hart and Mr Jordan said that he could get new callipers, but he insisted on having the 1997 callipers altered; he was told about the time it would take, a matter to which I will return; a PADP form was completed; he left the 1997 callipers with the appellant; he said he might get the appellant to repair the 1993 callipers which he was wearing, as a back-up; one of Mr Spooner-Hart or Mr Jordan inspected the 1993 callipers and said they were not worth repairing; and nothing was said about continuing to wear the 1993 callipers. 15 In summary, on the evidence of Mr Spooner-Hart and Mr Jordan the respondent asked that he have callipers remade from the 1997 callipers plus other components he had; he was told that he should have new callipers; a PADP form was completed; the respondent also said he wanted the 1993 callipers repaired as a backup; the 1993 callipers were inspected and he was told they were irreparable, were badly worn and dangerous and should not be used; and he took the 1997 callipers away. 16 Common to both positions was that a PADP form had been completed, but this evidence was given without the benefit of the form. In the course of the respondent's first cross-examination he said that "the PADP authority came through in August"; it would normally have followed that the appellant received the order form for the adjustment of the 1997 callipers at that time, although the respondent agreed that he did not thereafter contact the appellant and ask what was happening about the callipers. The respondent said that the "PADP authority" was either at home or he had given it to his solicitor. Mr Spooner-Hart and Mr Jordan both gave evidence that, despite thorough search, the appellant did not have a copy of the PADP form or the order form, and that it did not receive an order form. On their position, even if the appellant had had the 1997 callipers it had no authority to do any work on them. 17 I will return to the PADP form and order form tendered and admitted on a re-opening of the respondent's case. For the present, I move to the respondent's attendance at the clinic on 15 December 1999. The appellant's attendance record stated "Rebuilding caliper – reuse of parts". 18 Again in summary, on the evidence of the respondent he was contacted and went to the clinic believing that he was to pick up the altered 1997 callipers, but found that it was just for a fitting; he took with him a number of components of callipers because he had been asked to do so in July 1999, but they were not components from the 1997 callipers; he saw Mr Jordan and an unidentified man; Mr Jordan told him he would definitely have the callipers by Christmas; nothing was said about the 1993 callipers he was wearing; nothing more happened before his fall on 5 February 2000; and after the fall he received from the appellant a right leg calliper and two left leg callipers, one the altered articulated 1997 calliper and the other a non-articulated calliper. 19 In summary, on the evidence of Mr Spooner-Hart and Mr Jordan the respondent came to the clinic without prior contact; he had a PADP form, not an order form, written by a physiotherapist and to do with repairing callipers, and brought a lot of parts of callipers and asked that two left leg callipers be made from them and other new parts, one articulating and one not articulating; authority to do that was received and the work was done; and on 2 February 2000 the respondent came to the clinic for a fitting. On their position, although not made clear in the evidence, the parts of callipers included the 1997 callipers, so that the appellant first received them in December 1999. 20 The appellant produced a document dated 2 February 2000 signed by the respondent. It referred to "major repairs to 2 AK calipers", I take it meaning the left leg above knee callipers, and "1 new BK caliper Major repair to BK caliper", I take it referring to below knee callipers. The evidence did not clarify the obscurities in the number of different callipers, or how authority to supply a new calliper or do work on existing callipers was received in or after December 1999, save that Mr Spooner-Hart said that on occasions the Service would be telephoned and would give oral authority. 21 These summaries do not go into a number of other obscurities and discrepancies within the evidence. As an important matter, Mr Spooner-Hart was not certain that the respondent took the 1997 callipers away in July 1999, and at one point said that he thought the respondent was fitted with adjustments to the 1997 callipers in December 1999; further examples can be given. The judge's reasons were sadly deficient, and did not provide a clear or comprehensive account of what his Honour found to have occurred. 22 I return to what the respondent said he was told, on 21 July 1999, about the time it would take to have the 1997 callipers altered. At one point he said that Mr Jordan told him it would take six to eight weeks. At another point he said, initially referring to the 1993 callipers he was thinking of having repaired as a back-up - "BOYD: Q. Was there anything further said? A. About them not worth being done. There was a time limit of fixing the others and I did say to the other – Jordan that I was paranoid about breaking my leg and he said, 'I'll get them done as quick as I can. You'll have them by Christmas." Q. And was anything said about you continuing to wear the 1993 callipers in the meantime? A. No. He did flex them and test them and everything. He just said they weren't worth doing." 23 It was suggested in the appeal that this meant getting the 1993 callipers repaired as a back-up by Christmas. That can not be correct, because the 1993 callipers were not worth repairing and more particularly because repairing them as a back-up was not a matter for paranoia or urgency. The "time limit for fixing the others", on the respondent's evidence, must have been for fixing the 1997 callipers, and the promise of Christmas must have been as to the 1997 callipers. 24 Neither Mr Spooner-Hart nor Mr Jordan gave evidence of giving the respondent a time estimate or time limit. Implicit in their evidence was that it depended on when authority was received from the Service. The judge made no finding as to what, if anything, was said. Appeal as to leaving the 1997 callipers in July 1999 25 The judge found that the respondent left the 1997 callipers with the appellant in July 1999. The appellant submitted that he was in error in doing so. It is necessary to return to the PADP form and order form tendered and admitted on a reopening of the respondent's case. 26 The hearing began on 12 March 2003. Evidence was given by the respondent, Mr Spooner-Hart and Mr Jordan, and various exhibits were tendered. The judge heard submissions, and adjourned the case to 14 March 2003 for judgment. 27 It seems that the judge was asked to refrain from giving judgment pending an application by the respondent to reopen his case. The application was heard on 9 April 2003. The judge was told, without evidence, that the respondent had located some records. Documents which the respondent wished to tender were handed up. Leave to reopen was given and, the appellant having foreshadowed consequential additional evidence, the case was adjourned for further hearing on 15 May 2003. Costs were reserved. 28 On 15 May 2003 the documents were tendered and admitted without objection. No evidence was given of their source in records located by the respondent. There were two documents. One was a copy of a PADP form dated 21 July 1999 signed by the respondent, completed in the medical practitioner section by a rehabilitation specialist at Orange Base Hospital and in the section for completion by "therapist/nurse" stating "emergency repairs to calipers long leg calipers". This was in the writing of Mr Spooner-Hart's secretary. Other writing noted an acronym for the appellant and, apparently referring to the callipers, "short (right): (left) stiff". The other was a copy of an order form dated 12 August 1999, addressed to the respondent, authorising "Repair to Caliper" with a note that the work was for the respondent. 29 The judge said in his reasons, first referring to the two other matters of the respondent being contacted about going to the clinic on 15 December 1999 and going to the clinic on 2 February 2000 - "He also always asserted that he left his old prosthesis, that is the one that was made in 1997, he left it in various bits and pieces with the defendant on 21 July 1999. He always asserted that and the defendant denied it. The defendant said no, he came in with the 1993 callipers on his legs and with the 1997 callipers in various bits and pieces. We advised him that the '93 callipers were not worth repairing and were incapable of being repaired. I was left with a clear impression if it was not actually specifically stated that the plaintiff left the premises in July 1999 still clutching his bits and pieces from his '97 callipers and more or less rejecting the advice of the defendant that he should have new callipers all together. So that he went away wearing his old '93 callipers and carrying in bits and pieces his '97 callipers. I had the impression in Forbes in March when I reserved my decision that he was wrong about at least those three matters." 30 After referring to the respondent's evidence about having the PADP authority and to the documents tendered after reopening, the judge said - "The copy of the original form was received on 28 July 1999. As I say it is dated 21 July 1999 and the order form is returned or at least a copy is returned to the plaintiff dated 12 August 1999. Now the defendant says that it never got that order form. That is fine, they could easily be right. I do not doubt for a moment that they never got it, for present purposes anyway, but the cold hard fact is that it demonstrates that it is very, very likely that the plaintiff left with the defendant on 21 July the callipers to be repaired. That has this important consequence it seems to me that the defendant then new [sic] as at 21 July that the defendant being possessed of this man's bits and pieces of his 1997 callipers then the plaintiff must have been intending to get around on his '93 callipers until these callipers were repaired." 31 The appellant submitted that this was a flawed process of fact-finding. As at March 2003 the judge preferred the evidence of Mr Jordan, to an extent supported by that of Mr Spooner-Hart, to that of the respondent. His Honour apparently remained of that view. The new documents could not rationally cause him to change his view as to the third matter, it was said, because Mr Jordan's evidence had included that the the PADP form was completed and the PADP form and the order form were entirely consistent with the respondent not leaving the 1997 callipers with the appellant in July 1999. It remained that the 1997 callipers could have been taken away and used until authority was given by the Service, whereupon the respondent would be contacted and would come to the clinic, as must have been the judge's March 2003 view. 32 There is some force in this, but I do not think it pays sufficient regard to the wider conflict in the evidence. The thrust of the evidence of Mr Spooner-Hart and Mr Jordan was that they would not adjust (or repair) the 1997 callipers, and that the PADP form was for new callipers. The PADP form was for repairs, and not only that, for emergency repairs. That was not consistent with supply of new callipers, but was consistent with adjustment of the 1997 callipers, and provided some support for leaving the 1997 callipers with the appellant because there was the urgency denoted by emergency repairs. 33 The judge did not expose reasoning in this manner. He appears to have focussed on the order form rather than the PADP form, although that may be no more than looseness in expression evident throughout the reasons. In my opinion, however, it was open to his Honour to change his view in the light of the PADP form and order form, and to find that the 1997 callipers were left with the appellant in July 1999. Appeal as to negligence by the appellant 34 That finding provided the basis for the judge's finding of negligence. The appellant submitted that, even if the 1997 callipers were left with it in July 1999, the finding of negligence went beyond the pleaded case and beyond breach of any duty of care owed by it to the respondent. 35 The judge's finding of negligence was stated - "It is one thing for the defendants to say they cannot prevent him wearing it and I accept that all they can do is advise him that he should not be wearing them and I accept that they probably did. What they did do is apparently not pursue what are said to be in their own words 'urgent repairs' to his other callipers and leave him adrift so to speak on the streets of Forbes on his old callipers from July 1999 until he goes back for a further appointment in December. They then set about presumably making fresh callipers and/or repairing his old ones or both. He then turns up there for final fittings, (although he said he did not I am perfectly happy that he did), he turns up for final fitting on 2 February 2000. Presumably they are nearly ready by then, and unfortunately falls over on 5 February 2000. It may not be specifically pleaded this way, but close enough it seems to me in the overall picture of this litigation. The plaintiff alleges, inter alia, in his statement of claim a number of grounds of negligence, but one of them is (v) under the heading Particulars of Negligence 'failing to provide a replacement calliper when it knew of the risk of injury to the plaintiff wearing a calliper with an inferior and worn elastic band'. That the '93 callipers had an inferior and worn elastic band is common ground and that it was dangerous for him to wear the calliper is common ground. I do not think the plaintiff has established negligence in so far as the defendant failed to advise him not to wear it. I think the defendant did so advise him. When the defendant took an order from the plaintiff in July for urgent repairs to the callipers and then the plaintiff turns up again in December wondering what has happened to his callipers, I think he makes an appointment, but he turns up and nothing has happened in the meantime. The defendant says because I did not get the order. Well the plaintiff had the order, his copy of the order. If the defendant did not have the order the defendant might have made some inquiries as to what was happening knowing that the plaintiff was getting about the streets of Forbes on a totally unsatisfactory and unsafe set of callipers." 36 It was found that the appellant advised the respondent not to wear the 1993 callipers. The respondent did not challenge the finding on appeal, but the evidence presumably underlying it should be noted. In cross-examination the respondent agreed that he knew that callipers needed replacing "every two years or two and a half years, sometimes a little longer". He agreed that he attended the clinic regularly to have his callipers adjusted and for routine maintenance. He agreed that he had himself made some modifications to the 1993 callipers, although not to the extent suggested to him, saying that he did so "because I weren't taken notice to", and to the 1997 callipers. The respondent also agreed that he knew of the risk of collapse of a calliper, which had occurred on earlier occasions, and that he knew that the joints in the 1993 callipers were worn and that they were "bad". He agreed that it was not suggested to him that he should wear the 1993 callipers, saying "They knew that's all I had to wear". He also agreed that he was told that that the 1993 callipers were not worth repair and were beyond any repair. 37 There was plainly enough rejection of particular of negligence (iv). The judge did not expressly deal with particulars of negligence (i) to (iii). So far as they went further than failure to advise the respondent not to wear the 1993 callipers, they also were not made out. The appellant could not prevent the respondent wearing the 1993 callipers – it could only advise him. There was no question of then and there replacing the knee joint. 38 The negligence was found in delay in providing repaired 1997 callipers, in that the appellant failed to "pursue" the repairs to the 1997 callipers or "make inquiries as to what was happening" when it knew that the respondent was using the unsafe 1993 callipers. Counsel for the respondent, who had not been counsel at the trial, accepted that this was the basis of the finding of negligence. He did not seek to uphold the verdict and judgment on any other basis. He submitted that the appellant owed to the respondent a duty of care whereby it - "… had to take steps to ensure that there was not any unnecessary delay in the overall process of approval and doing the work but that entailed following up the PADP as to whether approval had been given or when it would be given". 39 I do not think that, on the case as pleaded and conducted by the respondent, it was open to the judge to find negligence on this basis. The judge appears to have thought that failure to follow up the PADP form came within particular of negligence (v). I do not think it did so. Counsel for the respondent referred to his predecessor's opening at the trial, which had included that the respondent was told that the alterations to the 1997 callipers would take six to eight weeks and that the altered callipers were not delivered until after the respondent's fall. This was no more than part of an incomplete foreshadowing of facts, and did not widen the respondent's case to a failure to follow up the PADP form and enquire about approval. Further, neither Mr Spooner-Hart nor Mr Jordan was taxed with failure to follow up the PADP form, it being remembered that on their evidence also a PADP form had been filled out. The conduct of the respondent's case did not take the wider form either. Conformably with principles of procedural fairness, negligence in failing to follow up the PADP form could not properly be found. 40 Nor, on the evidence as it was left, was the appellant in my view in breach of a duty of care extending to following up the PADP form. The judge's finding that the appellant did not receive the order form of 12 August 1999 was curiously phrased: his Honour said "That could well be right. I do not doubt for a moment that they never got it, for present purposes anyway … ". It was accepted as such a finding in the appeal. There could be months awaiting authorisation from the Service. The judge did not make a finding from which a forecast of six to eight weeks, rather than by Christmas, could be found in the case of adjustment of the 1997 callipers, although an application for emergency repairs could be expected to be processed with some expedition. Be that as it may, in the way PADP forms were processed, as known to the respondent, the respondent would ordinarily know of an approval at about the same time as the appellant. If the respondent thought excessive time had passed, he could make his own enquiries. The appellant did not have to monitor the situation. It conducted clinics, attending to whatever came up at the time. 41 The respondent submitted that the appellant was in a similar position to that of a medical adviser. His counsel suggested that it was providing medical services within the Orange Base Hospital and "basically attending to this patient's needs". From the attention to the respondent's needs, he said, came the responsibility to follow up the PADP form. I do not think that it was established that the appellant had that role. The appellant conducted clinics at the hospital, but was not shown to be more than a specialised technician. A medical practitioner prescribed the appliance the subject the PADP form. The Service authorised the supply or repair. The appellant waited for an order form, without which it had no authority to go ahead and would not be paid. The disabled person began the process by attending a clinic, and could monitor the situation himself. 42 In my opinion, therefore, the verdict and judgment for the respondent can not stand. Appeal as to causation 43 The appellant submitted that, even if it had failed to follow up the PADP form in the months after July 1999, from 15 December 1999 supply or repair of callipers was in hand; when the respondent fell thereafter, it was said, and only a few days before the replacement callipers became available, any delay was not causative of his injury. 44 Since the appeal must otherwise succeed, it is not necessary to consider this. Appeal as to costs 45 The judge ordered that the appellant pay the respondent's costs. He declined to order indemnity costs by reason of an offer of compromise made on 11 April 2003, just after leave to reopen had been granted. The appellant submitted that the reopening was due to the respondent's failure to have the PADP form and order form to hand on 12 March 2003, and that the respondent should have been ordered to pay its costs "of the reopening and of the resumed hearing". 46 With the success of the substantive appeal, the costs order made by the judge is displaced. It is not necessary to consider this. Orders 47 I propose the orders - 1. Appeal allowed. 2. Set aside the verdict and judgment for the plaintiff and in lieu thereof verdict and judgment for the defendant. 3. Plaintiff to pay the defendant's costs of the proceedings in the District Court and of the appeal and to have a certificate under the Suitors Fund Act if otherwise qualified. 48 McCOLL JA: I agree with Giles JA. ********** 18/03/2005 - Incorrect CA file number on judgment - Paragraph(s) heading 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.