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  • Unreported Judgment

Oliver Edwin Alms v Francis Robertson Ireland

 

[1974] FC 43

 

Appeal No. 22 of 1974

BETWEEN:

OLIVER EDWIN ALMS

Plaintiff

AND:

FRANCIS ROBERTSON IRELAND, MARJORIE ANNIE IRELAND, RONALD KEITH IRELAND and MARION ALBERTA IRELAND

Defendants

________________________________

CHIEF JUSTICE

LUCAS, J.

MATTHEWS, J.

________________________________

Reasons for judgement delivered by Matthews, J. Chief Justice and Lucas J. concurring.

________________________________

“APPEAL ALLOWED WITH COSTS. ORDER THAT JUDGMENT FOR THE PLAINTIFF BE SET ASIDE AND IN LIEU THEREOF ORDER THAT JUDGMENT BE ENTERED FOR THE DEFENDANT WITH COSTS TO BE TAXED.”

IN THE SUPREME COURT OF QUEENSLAND

Appeal No. 22 of 1974

BETWEEN

OLIVER EDWIN ALMS

(Plaintiff) Respondent

AND

FRANCIS ROBERTSON IRELAND MARJORIE ANNIE IRELAND RONALD KEITH IRELAND and MARION ALBERTA IRELAND

(Defendants) Appellants

JUDGMENT - MATTHEWS J.

By his Statement of Claim delivered on the 2nd June 1971, the respondent in this appeal alleged that on the 5th October 1968, when employed by the appellants and in the course of his employment, he was injured as a result of tripping over a motor car muffler which had been left in his path by a fellow employee in circumstances which amounted to a failure by the appellants to exercise the duty of care which they owed to him. In particular and as a result of his injury, the respondent alleged that he suffered a nerve root lesion in the vicinity of his 5th lumbar vertebra, although when the action came to trial in May 1974, counsel for the respondent indicated that as an alternative there would be medical evidence to suggest that the respondent sustained a popliteal nerve root lesion.

Hoare J., by whom the action was tried, found that the respondent had established negligence on the part of the appellants and that there was no contributory negligence by the respondent and accepted the evidence of Dr. Eadie whose opinion it was that the respondent had suffered a nerve root lesion in the vicinity of the 5th lumbar vertebra and who expressed the view that the probability was that by reason of the history given to him by the respondent, the injury was caused when the respondent tripped over the muffler. His Honour awarded to the respondent damages in the sum of $13,791.46 (including $5,791.46 as special damages) as flowing from that injury.

The appellants, seeking to have the award set aside, appeal on a number of grounds including some directed to the learned Trial Judge's findings on the issues of negligence and contributory negligence. The amount of damages awarded is attacked as being too high and upon other grounds which are expressed in the Notice of Appeal as follows:

“2. There was no evidence that the plaintiff injured his back on the specified occasion.

3. There was no evidence that the alleged incident of 5th October, 1968, caused injury which produced the effects the subject of the plaintiff's claim.”

Of the grounds to which I referred but did not set out in detail, I would say that on the issues of negligence and contributory negligence, there was evidence which, accepted as it was by the learned Trial Judge, justified the findings as made by him, although (and of this His Honour was obviously well aware) there were in the evidence, areas of doubt and perhaps contradiction which warranted close scrutiny of the respondent's case; and had the respondent satisfactorily proved that his disc injury was caused by the incident upon which he relied, this Court would not have been justified, in my opinion, in interfering with the amount of damages awarded.

However, I am of the opinion that when His Honour said in the course of his reasons for Judgment, “It is perfectly true, as submitted by counsel, that the plaintiff's condition was such that it could have arisen in ways quite unconnected with the trauma of which he complained. However, I have considered all these matters and as I have indicated, I am satisfied on the balance of probabilities that the plaintiff has established his case and that he is entitled to the damages which have flowed from that injury”, His Honour was expressing a view which is not supported by the evidence. The injury to which reference was made in that passage was, of course, the nerve root lesion in the vicinity of the 5th lumbar vertebra.

There were, in respect of the respondent's injury, differing medical opinions and of these the learned Trial Judge preferred that expressed by Dr. Eadie. Dr. W.L. Thomas, whose report of the 23rd June 1971 (Exhibit 7) showed that in February 1969 he diagnosed a lesion involving the lateral popliteal nerve of the right leg and the treatment of the respondent which took the form of myelogram examination in Brisbane in September 1969 and later surgical exploration in the region of the nerve, continued to support his diagnosis. However, Dr. Eadie who, when the respondent was in hospital in Brisbane in September 1969, formed the view accepted by His Honour, confirmed his opinion by what he calls an electromyography. However, from the evidence of both doctors, it emerges that the respondent had no back pain at all until after the myelogram in Brisbane and in his report of 8th December 1971 (Exhibit 8) Dr. Eadie expressed the view that it was conceivable that a disc protrusion occurred when the respondent tripped over the muffler but the absence of any back pain at the time, suggested that it was “impossible to be sure whether the disc protrusion occurred then or at some other time” and in his conclusion could only say that it was conceivable that his injury at work was responsible for the disc protrusion and the nerve root involvement. In that particular report, Dr. Eadie mentions the hospital chart which referred to a two months lapse between the respondent's trip over the muffler and a weakness noticed by him in his right ankle. This weakness, I would mention at this stage, and later back pain were the features of the respondent's injuries which caused him disability and largely account for the damages awarded to him.

On the 12th December 1972, Dr. Eadie again examined the respondent and at that stage obtained from him a history to the effect that one week after the accident the respondent noted that he was beginning to lose control of his right foot. Accepting this particular factor, Dr. Eadie, in his report of 13th December 1972 (Exhibit 9) expressed the view that “there is a reasonable possibility, perhaps a probability if the history is correct, that the fall did cause the lumbar disc protrusion which is the most probable explanation of the problems in Alms' right leg.” This opinion Dr. Eadie supported in evidence at the trial but his acceptance of a lapse of but one week from the respondent's tripping over the muffler to his noticing a weakness in his foot is obviously critical to the doctor's opinion. In examination-in-chief, he was asked and answered a question as follows:—

“Are you saying that on the balance of probabilities, accepting his history as given to you, you would attribute the disc protrusion to the incident?-- As the history was given to me on the second occasion when I took it from him direct.”

Cross-examined, Dr. Eadie accepted matters of significance which I may summarise as-

  1. A person who wrenches his back to such an extent as to cause some damage to a disc, knows and appreciates from his pain that he has wrenched his back, although Dr. Eadie said that in a limited proportion of cases one could have damage to a disc and not have symptoms of pain for a long time.
  1. That if, at the relevant time, the respondent had not boon falling obliquely but had travelled forwards in a straight line, he would have been of the opinion that the respondent's symptoms were referable to pre-existing weakness in the disc.
  1. That where there is disc protrusion and a consequential nerve root lesion, it is usually within a few days that there is numbness or pain in the leg and that if there were no weakness of the ankle or foot dropping within a short period of a particular incident, one would not readily attribute to that incident, a disc protrusion. Dr. Eadie said that he would be “uncomfortable” about such a diagnosis if the interval of time were more than three weeks and that as the interval of time lessened, so he would be more comfortable in making a diagnosis or, as he put it, “in establishing a connection”.

As I have said, it emerges from the evidence that the history of a lapse of one week between the incident and the respondent's noticing a weakness of his foot was critical to Dr. Eadie's opinion that the weakness of the foot flowed from disc protrusion which in turn was caused by the respondent's tripping over the muffler. Evidence to substantiate that particular interval of time was necessary therefore before His Honour was entitled to act upon the opinion expressed by Dr. Eadie (Ramsay v. Watson (1962-63) 108 C.L.R. 642 at p. 649). An examination of the record satisfies me that this matter was not proved before His Honour.

A passage from the respondent's evidence-in-chief reads:—

“Did you go to work the next day?-- Yes.

Did you continue to do work?-- Yes.

Did the pain in your foot continue?-- Yes.

Did you notice anything about your foot?-- Yes, I noticed it was getting weaker all the time and the front of my foot kept falling down here (indicating).

Did you see anyone about this?-- About two weeks later I saw Dr. Kjellberg, a masseur.”

From this passage, it might be thought that the respondent when referring to the event from which he reckoned “about two weeks later” was referring to the relevant incident but that this was not so emerges in my opinion from the respondent's statement dated 10th January 1969 (Exhibit 4). From that statement it would appear that immediately after he tripped over the muffler and for some little time thereafter, he had no disturbing symptoms because it was not until the 26th November 1968 that he thought the incident was worthy of report. He did not mention it to the fellow employee Wallwork who gave evidence, until about the time he made the statement Exhibit 4 and his treatment by Kjellberg was being continued or ceased at about 9th December 1968 when the respondent went to Cairns Base Hospital. If he went to Kjellberg some two weeks after the onset of symptoms, it appears with a reasonable degree of certainty that those symptoms were not apparent to him until some time in November and well outside a period of three weeks from the date of the incident. I think it also significant that it was not until the 26th December 1968, as emerges from Exhibit 4, that the respondent stopped working.

When one adds to the failure of the respondent to prove the history relied upon by Dr. Eadie, the evidence which I have mentioned of absence of low back pain until after the myelogram and the absence of any low back pain at the time or immediately after the incident which led to the claim, and the fact that the plaintiff established by his evidence that he did not fall obliquely, I think that the award of damages must be set aside on the basis which I have already mentioned. The Trial Judge's finding that on the balance of probabilities the disc protrusion and nerve root lesion resulted from the incident cannot be supported by the evidence before him.

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Editorial Notes

  • Published Case Name:

    Oliver Edwin Alms v Francis Robertson Ireland

  • Shortened Case Name:

    Oliver Edwin Alms v Francis Robertson Ireland

  • MNC:

    [1974] FC 43

  • Court:

    QSC

  • Judge(s):

    Hanger CJ, Lucas J Matthews J

  • Date:

    01 Jan 1974

Litigation History

No Litigation History

Appeal Status

No Status