Lumbar spine injury whilst driving a dump truck in a mine
A breakdown of key facts and the analysis of a claim to help show you the structure and analysis, as well as outcome involved.
In this case: Geary v REJV Services Pty Ltd & Ors [2012] QCA 238.
Whether Trial Judge’s finding that the pre-existing condition was symptomatic, was open on the evidence.
Key facts
The appellant plaintiff injured his lumbar spine whilst employed by the first respondent, when he was driving a dump truck at a mining operation. Liability was not in issue at the trial.
The three orthopaedic surgeons who gave evidence at the trial accepted that the appellant suffered degenerative lumbar disease pre-dating the subject incident.
The question was whether it had previously been symptomatic, as evidence from a general practitioner and a physiotherapist suggested that it may have been.
The three specialists made their assessments on the basis of the appellant’s reports to them that he was asymptomatic prior to the subject incident.
The Trial Judge assessed quantum at $380,349.38.
Discounts were applied to past economic loss and future economic loss on the basis of His Honour’s findings that there was a significant chance that the appellant would have been compromised in his capacity to work some time after the incident, and before the date of trial, resulting in a loss of capacity to work and loss of income.
General damages would have also been assessed at a higher level absent those findings
The Trial Judge had also held that the appellant’s increased consumption of alcohol in recent years could be attributed partly to his life habits, and not his accident disability; and that his emotional state and overuse of alcohol would have deteriorated, although not so suddenly, over the 6.3 years preceding the trial irrespective of injuries he sustained.
This was based on the appellant’s long history as an adult of working in hotels, his history of drink driving offences and his admission of routine alcohol consumption before the accident.
The two principal grounds of appeal were:
1. The finding that the pre-existing degenerative lumbar condition was symptomatic at the time of the subject incident was not open; and
2. The finding that the appellant’s use of alcohol after the incident would have occurred regardless of the subject incident was not open.
The Trial Judge had accepted evidence from a general practitioner, of that doctor’s clear recollection of the appellant having told him that the appellant had suffered back injuries which he attributed to playing rugby league.
Physiotherapist report
The Trial Judge referred to a report from a physiotherapist of the appellant’s reporting no previous low back conditions other than minor sports related minor muscular events while he was playing professional football.
The appellant had denied in his evidence having suffered any back problems other than immediately following a work incident in 1985, the Trial Judge had rejected that denial, characterising it as misleading.
He had held that the appellant attempted to downplay or minimise the problems he had with his low back prior to the subject incident to maximise his recovery in the action for damages.
Received treatment for rugby injuries over the years
The appellant had conceded he received treatment for rugby injuries over the years, but not in relation to the lower back, stating his symptoms related to his neck and shoulders.
The Trial Judge did not accept that evidence as creditworthy, coming from a claimant determined to maximise his award, and about whose evidence the court should be generally cautious.
Pre-accident symptoms and treatment, and the alleged reporting to doctors
The appellant argued on appeal that he had denied the alleged pre-accident symptoms and treatment, and the alleged reporting to doctors of same.
He argued, in relation to the Trial Judge’s acceptance of the evidence of the general practitioner, that the Trial Judge incorrectly relied on a perfunctory unrecorded conversation with the appellant, at a time when the appellant was in distress with pain, and in circumstances where the general practitioner volunteered the attribution of some pain to the football career.
Decision
The Chief Justice, with whom Muir JA agreed, dismissed the appeal, finding that the challenged factual conclusions were sufficiently supported by evidence, and consequently, the assessment was sound.
Credit findings
The Chief Justice noted the Trial Judge had approached the credibility issue with great care and there was no blanket rejection of the evidence of the appellant.
Major parts were accepted, and where evidence was rejected, reasons were carefully assigned and he noted the Trial Judge had embarked upon an apparently meticulous examination of the issues bearing on the credibility of the appellant’s claims.
Although there was a degree of sparseness about the evidence, it was sufficient enough for the Trial Judge to reach his conclusions, which could not be described as glaringly improbable, or as being inconsistent with facts incontrovertibly established, nor did the Trial Judge palpably misuse his advantage in reaching his conclusions.
Not suffering back symptoms prior to the subject incident
It followed from the Trial Judge’s credit findings, which were substantially informed by his having seen and heard the appellant, that it was open to the Trial Judge to have rejected the appellant’s evidence that he was not suffering back symptoms prior to the subject incident.
Although defence Counsel had not directly put to the appellant at the trial that he was suffering lower back pain immediately prior to this incident, absent instructions there was direct evidence he was and it had to be left for inferences to be drawn from facts emerging from the cross-examiner’s exploration of the other relevant circumstances.
General practitioner’s evidence
Reference to the transcript showed that although the doctor had not recorded the fact that the appellant told him he had suffered lower back injuries playing football, he clearly recalled the conversation, in particular because of how distressed the appellant was at the time.
He had asked the appellant whether the previous injuries had been sustained playing football and the appellant agreed.
Three levels of degenerative changes in the lumbar spine
Although the doctor’s questioning of the appellant had not been restricted to the lumbar back, the doctor had the clear impression that the problem was related to that part of the spine.
Furthermore, orthopaedic surgeon Dr Wallace said he would have expected the appellant to have experienced symptoms by the time of the subject incident, from an old healed compression fracture at L4, and may have experienced symptoms from the three levels of degenerative changes in the lumbar spine.
Increase in alcohol consumption post accident
This was not the subject of substantial oral submission on appeal, and the Chief Justice held that the Trial Judge’s views were reasonably open on the evidence.
White JA (dissenting)
Her Honour held that the appeal ought to have been allowed and she would have assessed damages at $536,598.78 (allowing $350,000 for future economic loss rather than $200,000).
The general practitioner’s evidence
With regard to the general practitioner’s evidence, she held that although the Trial Judge was entitled to accept his account, it ought not to have been embraced too enthusiastically.
Her Honour noted the Trial Judge accepted the appellant’s account of his extensive pre-accident recreational activities, which could not be reconciled with a man suffering from a significant back condition.
There was also no recognition of the fact that the appellant engaged in the heavy driving required in his employment prior to injury without any documented complaint or oral evidence of observation of restrictions.
Multi level degenerative back disease
She also considered that contrary to the Trial Judge’s contention that the appellant had a significant back condition described as a multi level degenerative back disease, the orthopaedic specialists did not so describe it.
She noted a discrepancy in the Trial Judge’s finding that the appellant would have begun to suffer pain of a greater intensity and frequency than he did before the accident, because the appellant had never described pre-accident symptoms, other than minor ones.
No pre-accident complaint of back pain after the 1985 incident
There was no pre-accident complaint of back pain after the 1985 incident in medical or work records or in oral testimony.
The defence appeared to have carried out very extensive investigations about the appellant before and after the accident and if there was anything to be found the defence would have produced that evidence.
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