CLA: Surgery and G v K not precluded because of substantial pre-existing condition

The Thistle Company of Australia Pty Ltd v Bretz & Anor [2018] QCA 6

The defendant appealed the decision of negligence and damages for personal injuries of $96,361.13.

The plaintiff sustained injuries on 5 October 2012 at the defendant’s petrol station when after filling his car with petrol and walking to the pay station, tripped over the concrete plinth on which the petrol bowser was situated on. The plinth had recently been repainted black, a departure from the previous colour of yellow. The decision was taken because the yellow paint had been slippery and it was not as aesthetic. The vertical elevation of the plinth was approximately 37 – 39 mm.

The trial judge found the risk of tripping was foreseeable and not insignificant and that the repainting of the plinth the same colour as the surrounding ground surface obscured it and created a hazard. Accordingly, her Honour did not find it was an obvious risk under s.15 of the Civil Liability Act 2003 (CLA). Similarly, her Honour did not find the plaintiff contributed to his own injuries.

The Court of Appeal dismissed the appeal. Philippedes JA with whom Gotterson JA and Bond J concurred found no basis to interfere with the basis of negligence and the contention that the risk was not insignificant or that the plaintiff had been contributorily negligent by failing to look where he was walking.

The notable aspect of the appeal was whether there was an error in the assessment of special damages by allowing the claim for the operation to the plaintiff’s shoulder and the resultant gratuitous care under s.59 of the CLA. It was not in dispute the plaintiff had a significant pre-existing shoulder condition for which he had been recommended surgery. The plaintiff had declined surgery in the past because of his heart complaint. However, following the injury, he elected to have surgery because the risks of surgery against the level of pain and disability made it worthwhile in his evaluation.

The defendant contended that the surgery failed under s.11 of the CLA on the basis it was not causally related under subsection two, namely that it was a necessary condition to the condition of the occurrence of the harm. Philippedes JA [42] held the medical evidence that 50% of the impairment was due to the pre-existing condition as opposed to 30 -40% for the injury, did not preclude that the injury worsened the state of the plaintiff’s shoulder after the fall and that it was hence causally linked to the surgery under s.11(1)(a) of the CLA.

As to the appeal against the gratuitous care under s.59 of the CLA, Philippedes JA rejected the argument because the pre-existing shoulder complaints did not require gratuitous or other assistance. The trial judge found the plaintiff had been remarkably self-sufficient and with respect to future care, the trial judge accounted for the substantial likelihood that even without the fall the plaintiff with advancing years would have required assistance. On this basis, the trial judge found that while precision was impossible, the usual discount of 15% for vicissitudes was too low and allowed rather 45%.

Philippedes JA held this was consistent with the approach in Woolworths Ltd v Lawlor [2004] NSWCA 209 at [28]-[29] and did not interfere with it, and dismissed the defendant’s appeal.

[43] On the hearing of the application, the applicant expanded on its contention that
Mr Bretz was not entitled to an award for gratuitous services. It was argued that,
given Mr Bretz’s medical history of right shoulder symptomology, he had not
satisfied the requirement in s 59(1)(b) of the Act that the need for the services arose  “solely out of the injury in relation to which the damages were awarded”, as the need
for the services was also related to the underlying pre-existing shoulder condition.
That submission also is without merit. Her Honour gave detailed consideration to
Mr Bretz’s pre-existing injury, his general state of health and anticipated decline in
his condition due to aging in assessing damages for gratuitous services. On behalf of
Mr Bretz, reference was made to the New South Wales authority of Woolworths Ltd
v Lawlor19 dealing with s 15(2)(b) of the Civil Liability Act 2002 (NSW), the analogue
to s 59 of the Act. That decision was approved in Angel v Hawkesbury City Council.
Particular reference was made to the following observations in Lawlor by Beasley JA
(with whom Hodgson and Tobias JJA agreed):

“[28] … [The appellant defendant] submitted that s 2(b) only operated
where there was no other cause or reason why the gratuitous
services needed to be provided. An example on the appellant’s
argument in which an award under s 15 would be precluded was
where a plaintiff with pre-existing symptomatic degenerative
changes already required assistance of say five hours per week
at the time of an accident. If, as a result of an accident causing
an aggravation of those pre-existing changes, it was found that
such a person needed more attendant care services, say 15 hours
per week, there was no entitlement under s 15 because of the
operation of s 15(2)(b). In other words the need for attendant
care services had more than one cause. The opposing argument
and one which was adopted by senior counsel for the [plaintiff]
respondent, was that in such a case, the plaintiff would be
entitled to an award of ten hours for gratuitous attendant care
services because the need for those ten hours had arisen ‘solely
because of the injury to which the damages relate’. This
construction derives directly from the definition of ‘injury’
which includes ‘impairment of a person’s physical or mental

[44] This is not a case where a pre-existing symptomatic condition required assistance.
There is no basis to impugn the finding at [91] that prior to the incident, Mr Bretz had
been remarkably self-sufficient. In relation to future care, her Honour also stated that:

“[91] …The injury had a serious impact on his life. However, the
pre-existing injury and Mr Bretz’s advancing age is relevant to
the likely need for future care. There is a substantial likelihood
that, even without the fall, Mr Bretz would have developed the
need for the same kind of care (whether at the same or a lesser
level) at some time in the future. Diminishing independence is
an unfortunate symptom of old age for most people. In addition,
Dr Shaw identified that the pre-existing condition was likely to
deteriorate with time.
[92] It is impossible to approach the matter with precision, but the
discount of 15% for vicissitudes suggested by the plaintiff is too
low. Given the inevitability of decline, I allow 45%.”


David Cormack – Brisbane Barrister & Mediator


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