Dowell v Queensland Rail [2009] QDC 47

DISTRICT COURT OF QUEENSLAND CITATION: Dowell v Queensland Rail [2009] QDC 47 PARTIES: RODNEY DOWELL (Plaintiff) v QUEENSLAND RAIL (ABN 47 564 947 264) (Defendant) FILE NO/S: BD129/07 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 6 March 2009 DELIVERED AT: Brisbane HEARING DATE: 17, 18, 19 & 20 February 2009 JUDGE: Ryrie DCJ ORDER: Judgment for the defendant. The parties are given leave to make submissions in writing on costs within 28 days, failing agreement between the parties. CATCHWORDS: TORTS – NEGLIGENCE – DANGEROUS PREMISES – INJURIES TO PERSONS ENTERING PREMISES – PREMISES CONTROLLED BY PUBLIC AUTHORITY – where the plaintiff suffered injury at a kerb at a train station – whether the painted white area of the kerb was causative of the injury DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where quantum and liability are in question – where the plaintiff suffered an injury at the defendant’s premises Civil Liability Act 2003 (Qld), ss 54, 55 & 62 Civil Liability Regulations 2003 (Qld), Schedule 4 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, cited Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234, cited -- 1 of 13 -- 2 Wilkinson v BP Australia Pty Ltd [2008] QSC 171, cited White v Calstores P/L [2006] QCA 535, considered Wyong Shire Council v Shirt (1980) 146 CLR 40, cited COUNSEL: Mr R King-Scott for the plaintiff Mr M O’Sullivan for the defendant SOLICITORS: Paul Everingham & Co for the plaintiff David Drew, Corporate Counsel QR Limited for the defendant [1] In this action the plaintiff (‘Mr Dowell’) seeks to recover damages for personal injuries which he says was occasioned by the negligence of the defendant (‘Queensland Rail’). Liability and quantum are both in issue. [2] Counsel for Mr Dowell abandoned any claim for damages beyond the court’s jurisdiction. He also abandoned any claim arising from any breach of contract. No further amendments were made to the pleadings by either the plaintiff or the defendant during the hearing. Liability Mr Dowell’s evidence given at hearing [3] Mr Dowell gave evidence that he had arrived at the Caboolture railway station in the early hours of the morning of the 16th January 2004 in order to catch a train to work in Brisbane. He was working as a Steel Fixer at the Casino Towers site at that time. Upon arrival at the station, Mr Dowell parked his car at the station car park. It was dark and raining heavily. It is accepted that there was sufficient artificial lighting in the area. After exiting his car, he traversed through the car park and then across a roadway in a diagonal direction towards the main entrance of the station by walking briskly, in order not to get wet. He was wearing football socks and thongs (‘double pluggers’) at the time. He was carrying his work boots and work bag in his right hand. In order to step over a puddle of water that was situated on the roadway, he put his left foot onto the painted white area of the kerb, the exact location of which he was not sure, at which time his foot slipped to the right. He managed to break his fall to the left. At no stage he says, did he run. Nor did he jump over any puddles of water in his path or onto the relevant kerb. At no point did the thong ever come off his left foot. His left foot may have moved in the thong to a certain extent but not significantly. As a consequence of the slip, Mr Dowell suffered a fracture to his left foot. The relevant law [4] Mr Dowell has based his claim on negligence. In order to succeed in relation to the cause of action in negligence, he must first establish that there was a foreseeable risk of injury, secondly that the defendant (‘Queensland Rail’) could have taken steps to remove that risk and thirdly, that a failure to take such steps was unreasonable. -- 2 of 13 -- 3 [5] Those principles and other relevant considerations in a case such as this have helpfully been set out by His Honour Justice McMeekin at paragraph [28] in Wilkinson v BP Australia Pty Ltd [2008] QSC 171. As Justice McMeekin observed: ‘the measure of the discharge of the defendant’s duty of care to the plaintiff is what a reasonable person would in all the circumstances do by way of response to the foreseeable risk: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. The factors that bear on what response might be reasonable include the magnitude of the risk, the degree of probability of its occurrence and the expense, difficulty and inconvenience of minimising or alleviating the risk and any other conflicting responsibilities which a defendant may have: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. It is plain that in weighing up its response the defendant was entitled to take into account the obviousness of the risk and the likelihood that persons coming on to the property would fail to observe and avoid it: Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234.’ Findings [6] Having carefully considered the whole of the evidence available, I am unable to accept the account which was given by Mr Dowell at hearing regarding the way he says the accident occurred. Nor can I be satisfied that any injury suffered by Mr Dowell on the 16th January 2004 therefore occurred as a result of any omission or failure on the part of the defendant as alleged. [7] In arriving at these conclusions I have taken into account the following matters: a. The observations of Mr Appleton who was on duty as the train controller [8] Mr Appleton had an unobstructed line of view from the ticket office where he was working that morning. He observed Mr Dowell run from the fence line (situated in front of the relevant car park) in a diagonal direction towards the entrance of the station, a fact that was denied by Mr Dowell. [9] Counsel for Mr Dowell submitted that Mr Appleton’s account ought to be rejected because his recollection regarding the incident had consciously or subconsciously been ‘clouded’ by his subsequent viewing of the station’s CCTV recording (ex 29). He also submitted that Mr Appleton’s failure to make a record of his observations at the relevant time, the fact that he was only asked to recall the incident about 2 weeks prior to the hearing and the fact that he did not actually see Mr Dowell slip and only saw him picking himself off the ground, all lead to a conclusion that Mr Appleton’s recollection of what he says he saw Mr Dowell doing that day ought to be rejected. [10] I cannot accept those submissions. Mr Appleton gave his evidence in a forthright manner to the court. I had no reason to reject his account that he saw Mr Dowell running that morning or that he could remember that fact many years after its’ occurrence. Mr Appleton gave evidence that the reason he was looking out in that direction from the ticket office that morning was because he was keeping an eye out for latecomers trying to catch the train (in order that it can be held at the station for a short time if needs be). I have no reason to reject that evidence. His subsequent memory of it many years later is also readily explicable by the fact that he personally thought that what Mr Dowell was doing that morning was ‘silly’ -- 3 of 13 -- 4 particularly in view of the wet weather and the fact that Mr Dowell was running while wearing socks and thongs, so much so he subsequently even told his wife about it. He also gave evidence that at no stage that morning did he speak to Mr Dowell other than to simply ask him if he was alright. It was also Mr Appleton’s evidence that upon Mr Parnell (Station Officer) arriving at work, he advised Mr Parnell of the incident and as such, did provide a (verbal) record of his observations of the incident at the relevant time. Mr Parnell confirmed also that fact in his evidence though couldn’t specifically recall the detail. Nor can I accept the submission that Mr Appleton’s recollection of the incident was subsequently ‘tainted’ by his viewing of the CCTV. The quality of that recording, which I have examined several times, does little to assist. For example, it is not readily identifiable, as submitted, that Mr Dowell can be seen to be wearing socks and thongs (a fact not denied in any event). Nor does it show the point at which Mr Appleton says he first saw Mr Dowell commence running (from the opening of fence line hear the car park). It is also recorded in ‘3 second delay frames’. The fact that Mr Appleton conceded during his evidence that he didn’t actually see Mr Dowell slip, in my mind, goes more to his credit as a truthful witness. He could have, for example, given evidence that he had watched Mr Dowell the whole time from the point he commenced running diagonally to the point when he actually fell, however he was willing to concede that he had not see Mr Dowell slip or fall because he was distracted by customers who he was serving at the ticket office at the time, a fact which in my mind, readily explains why he did not actually see Mr Dowell slip or fall that day. Nor did he try to suggest that he had seen Mr Dowell running in his socks and thongs. His evidence at hearing was that he had only noticed that Mr Dowell actually had socks and thongs on after he saw Mr Dowell ‘picking himself up’. [11] There was, in any event, other evidence on the issue of ‘running’. Dr Hendy gave evidence that the history set out in his report (ex 5) was given to him by Mr Dowell ‘that he went to run across the road’. Dr Pentis confirmed in his evidence (by reference to his written notes) that Mr Dowell had advised him ‘that he ran across to train station, jumped on to the kerb and slipped’. b. The other evidence available for consideration namely that Mr Dowell had ‘jumped’ (a fact denied by Mr Dowell) at some point while making his way across the roadway from the car park to the entrance of the station [12] In addition to Dr Pentis’s contemporaneous notes referred to above, Dr Langley also gave evidence that Mr Dowell had told him ‘that he suffered an injury to left foot when he jumped over some water at the train station and hit the kerb’ (ex 14). [13] There was also further evidence. In the hospital clinical note of 16 th January 2004 (ex 35), it records ‘work injury. tripped at train station on way to work’. When Mrs Coles saw Mr Dowell on the 16 th November 2004, she recorded that Mr Dowell had told her he had slipped on the white paint on the kerb (ex 7). Dr Saxby recorded that Mr Dowell had told him on 9th February 2007 that he had stepped up onto the kerb when he was hurrying and his left foot slipped (ex 18). [14] Counsel for Mr Dowell submits that I should accept Mr Dowell’s account regarding the circumstances surrounding the accident. That is, that he was only ever walking briskly and that in order to avoid a puddle, he stepped over it on to the kerb at which time he slipped on the painted white surface of that kerb. It is difficult for me -- 4 of 13 -- 5 however to accept Mr Dowell’s account in this regard particularly in light of the evidence to which I have just referred. Counsel for Mr Dowell submitted that because Mr Dowell did not try, during his evidence, to ever suggest that he had not told the relevant Doctors that he had tripped, run or jumped as described, he should be considered a more credible witness. That fact does not however, in my mind, assist Mr Dowell regarding the account which he has given to this court in relation to how he says the accident occurred which caused his injury (as pleaded). Mr Dowell gave evidence at the hearing that he was ‘pretty confident as to what happened’ in that he ‘knew what happened’ (T2-30) yet he has told several of the medical practitioners something entirely different in substance subsequently. This is of significance given the reporting by him to the Doctors who had seen him closest in time to the date of the accident. [15] Counsel for Mr Dowell relies on the Public/Passenger Accident/Incident Report (ex 30) in support of his submission that it provides the most contemporaneous note of the circumstances of the accident. He says it is the most accurate report by Mr Dowell (to Mr Parnell) in that it confirms that he had slipped (rather than having jumped on to the kerb or having jumped and hit the kerb or having simply tripped). That submission however overlooks the fact that Mr Parnell has simply recorded what Mr Dowell had told him, and that any ‘slipping’ may well have also occurred in circumstances where Mr Dowell had been running, has either jumped on to the kerb to avoid a puddle and slipped or has hit the kerb while doing so or perhaps even simply tripped. It also overlooks the other evidence available for my consideration on this issue which I have already referred in some detail, which I prefer and have no reason to doubt were accurate recordings by the relevant medical practitioners of what Mr Dowell had told them. c. My assessment of Mr Dowell as a witness. [16] While I accept the submission made by his Counsel that Mr Dowell gave his evidence in a somewhat deferential way, I still found the evidence which he gave in respect to the circumstances surrounding the accident still difficult to accept notwithstanding. For example, his evidence that he believed he had only travelled approximately 13 metres (his estimate) from where he had parked his car to the point of the accident is, in my mind, difficult to accept particularly in circumstances where Mr Dowell had regularly carried up to 12 metre length steel with others in his employment as a Steel Fixer and his admission that he had parked his car in the fifth car space from the relevant pedestrian crossing (ex 37; T2-29). [17] It was also difficult to accept Mr Dowell’s contention that notwithstanding that he says he walked briskly in heavy rain from the carpark in socks and thongs, that his socks did not get wet at all because he “didn’t stand in any puddles” (T2-28). That evidence, in my mind, was somewhat puzzling particularly in view of the distance which Mr Dowell would have had to have travelled from the carpark and the nature of weather at that time. [18] While the CCTV (ex 29) does little to assist the court, Mr Dowell’s account to the court, while he was viewing that recording, regarding what he was doing on that recording was also difficult to accept. For example, he says that he was stepping over a puddle of water onto the kerb when he slipped on the kerb’s white painted surface, yet the CCTV reveals that a puddle of water is situated some distance away from the kerb. The CCTV also indicates the line of travel he has taken in relation to -- 5 of 13 -- 6 that puddle and the kerb in question. Additionally, when asked what he was doing when he was bent over (at recording time frame 04:37:17), Mr Dowell responded ‘I was feeling the paintwork on the – on the concrete to see how slippery it was’. However, upon his Counsel observing for him that his arm was a little way away from the kerbing and asking him if he recalled testing the paintwork there, Mr Dowell responded ‘I can’t recall’ (T1-27). Even if I was to make an allowance for any 3 second frame delay on that recording, Mr Dowell’s evidence to the effect that he was bent over feeling the paintwork on the concrete in order to see how slippery it was is somewhat puzzling particularly as the relevant recording time frame 04:37:17 (and again at 04:37:20) reveals no paintwork at all on the footpath in question, other than that on the kerb defining its edge situated some distance away. It is also puzzling that Mr Dowell couldn’t recall whether he had checked the paintwork on the relevant kerb at that time particularly when he says it was the paint on that kerb which had caused him to slip in the first place. [19] Having determined then, that I am unable to accept Mr Dowell’s account as reliable particularly in respect to how he says the accident has happened, it follows that his claim must be dismissed. It is therefore not necessary for me to make any determination regarding whether the white painted surface on the kerb had grit in it or not at the material time as I do not accept that it has caused Mr Dowell to slip and subsequently fall in the manner he has described. Expert evidence [20] As a matter of completion however, I shall briefly deal with the expert evidence called on this point. Both Doctors Ludcke and Griggs provided expert evidence, in particular regarding whether the relevant painted kerb surface without grit was sufficiently slip resistance under wet conditions. Both Doctors agreed that the co- efficient friction of the painted kerb surface without grit, using the pendulum tester, was less than that prescribed by the relevant Australian Standards. [21] Dr Griggs however did not accept that the pendulum tester was the most appropriate device when measuring such a surface (as it was not entirely smooth and that the Australian Standards had primarily been developed in respect of smooth surfaces, namely tiles) and as such, he had used other testing devices (XL Tester and the Drag Test) to determine if the relevant paint of the kerb, even without grit in it, was still adequate insofar as its’ co-efficient friction. He concluded that it was. He did concede however under cross examination that the Australian Standards did apply to all wet surfaces but stated that those were still primarily directed at ceramic tiles and the like. Dr Ludcke, on the other hand, considered that the pendulum tester was the only test prescribed for by the Australian Standards as appropriate and therefore the other tests used by Dr Griggs were of limited value. He did not accept that the kerb surface in question was unable to be measured using the pendulum tester. [22] Both experts provided this court with considerable assistance in respect to this issue. However, having rejected Mr Dowell’s account that he has slipped as a result of his stepping onto the painted white surface of the kerb, it is not necessary for me to determine which expert I prefer. However, if such a determination ought to have been made, I consider Dr Griggs’ evidence to been more plausible to that of Dr Ludcke’s. Dr Griggs used several testing devices, not one, as he was conscious that the Australian Standards had only been developed primarily in respect of tiled or smooth wet surfaces. The painted surface area on the kerb without grit in question -- 6 of 13 -- 7 was not such a surface and the photos clearly identify that fact. As such, I prefer the opinion expressed by Dr Griggs that the other testing devices were more appropriate and that the kerbed surface in question, even without grit, fell within the appropriate level prescribed by the relevant Australian Standards for wet surfaces. [23] It is also of some significance, that Dr Ludcke was reluctant, in any event, to provide an opinion with respect to any or any real likelihood that if someone was running and had jumped on to a kerb to avoid a puddle, that that person would have slipped in any event, irrespective of whether it’s painted surface had grit in it or not. That reluctance (understandable in view of the many unknown variables involved which Dr Ludcke gave evidence) did little to assist Mr Dowell’s case (particularly in light of the way the stated cause of the accident had been pleaded). Reasonable steps by Queensland Rail [24] While it is also not necessary for me to deal with whether Queensland Rail could have taken steps to remove any risk or its’ failure to take such steps was unreasonable, in light of my conclusion that any injury suffered by Mr Dowell was not as a result of any omission or failure on the part of Queensland Rail, I shall briefly deal with this issue in any event as a matter of completeness. [25] The evidence called at hearing, which I accept, showed that there had not been any reported or observable incidents involving the relevant painted kerb without grit prior to Mr Dowell’s accident. Mr Moore attested to this fact. Other long term employees at the station also attested to this fact. One such employee, Ms Jarrett, carried out monthly safety checks in respect of the station (including outside) and did not note any problems in respect of the particular kerb way. There was undisputed evidence which was that a significant numbers of people traversed through the area where Mr Dowell slipped regularly without incident. That area was also a drop off point for many passenger buses coming into the station. There was also evidence that the buses regularly hit the kerb and as a consequence, the paint on the kerb in that area was marked by the tyres (as evidenced in the photographs tendered as part of the expert reports). [26] Counsel for Mr Dowell relied on an email dated 22 nd March 2004 (ex. 34) from Mr Hepthorn (Station Master at the relevant time but since retired from Queensland Rail) as evidence that there was a foreseeable risk of injury of which Queensland Rail was fully appraised and that Queensland Rail could have easily taken steps to remove that risk but had failed to do so prior to Mr Dowell’s accident. [27] That submission, in my mind, however overlooks that the fact that the only complaints which Mr Hepthorn was aware of at the time he wrote that email were of two (2) incidents only, neither of which involved Mr Dowell or indeed, were associated with the painted kerb in question. It also overlooks Mr Hepthorn’s evidence that at least one of those incidents had occurred in March 2004 (T4-11) and that the other incident had involved a lady riding a bike coming into contact with a car in the carpark while she was on the pedestrian crossing in that area. It also overlooks Mr Hepthorn’s evidence, which I had no reason to reject, that the ‘concerns’ which he raised in that email, which he admitted he had embellished, were written by him with a view to getting the station ‘tarted’ up. That fact, in my mind, is confirmed by the post script which he added to the email. I also accept Mr Hepthorn’s evidence that the contents of that email was primarily designed to -- 7 of 13 -- 8 address his concerns regarding the lack of illumination of the pedestrian crossing through the car park and over the relevant roadway which he believed would be greatly assisted if grit was added to the paint in those areas. [28] There was other evidence of this issue which, in any event, enhances Mr Hepthorn’s evidence on this point as being truthful. Mr Hepthorn gave evidence that when the pedestrian crossing was subsequently repainted (with grit), he had asked that the kerb near the drop off point for the buses on the relevant roadway also be painted at that point because there was some left over paint. The uncontested evidence from Dr Griggs was that not all of the kerb on the relevant roadway had been subsequently painted with grit after Mr Dowell’s accident, which was consistent with Mr Hepthorn’s evidence that the kerb had only been painted (with grit) subsequent to Mr Dowell’s accident at his direction as a result of some paint being left over after the pedestrian crossing job and that he was concerned with proper illumination being available in the traffic areas at the station which also included the drop off area in question. [29] Counsel for Mr Dowell also argues that Ms Jarrett’s monthly safety audits (ex 47) at the station were deficient as demonstrated by the failure of Queensland Rail to fix an area on one of the platforms inside the station in a timely fashion, which Ms Jarrett had identified as a hazard. That submission, in my mind, overlooks the fact that Ms Jarrett had regularly completed monthly safety audits in respect to the station, both inside and out, and had not readily identified the white painted surface of the kerb outside (painted only to define its’ edge) as a hazard in relation to the many persons who had traversed over it daily. [30] Counsel for Mr Dowell also referred to the evidence given at hearing by Mr Dowell, which was, in effect, that he had personally seen two other people slip on the pedestrian crossing on the 27th January 2004 (T2-7) in support of his submission that the paint on the kerb in question was therefore also clearly slippery (in view of the admission which had been made by the defendant that the paint, both on the pedestrian crossing and on the kerbing in question was, at the material time, paint without grit). Having determined already that I cannot be satisfied that the relevant painted white surface of the kerb played any part in causing Mr Dowell’s accident, it is not necessary for me to deal with this evidence. As a matter of completeness however, had I been required to do so, the weight that I would have attached to this particular piece of evidence would have be limited in any event, in light of my own assessment of Mr Dowell regarding the account which he gave regarding the circumstances of the accident, which I had real difficulty in accepting as reliable in all the circumstances. [31] For the reasons already stated, Mr Dowell’s claim must fail. [32] In the event that a different view may be taken regarding the conclusion which I have just reached on liability, I shall briefly deal with the question of quantum of damages. Quantum [33] Mr Dowell was 46 years old at the time of the accident and is currently 51 years of age. As a result of the accident, Mr Dowell suffered a fracture of the fifth metatarsal. He was a Steel Fixer by occupation at that time. He had been -- 8 of 13 -- 9 undertaking that type of work for about 15 years as at the time of hearing. Mr Dowell gave evidence that his type of employment required him to regularly lift (‘all day, every day’) lengths of steel which could vary in length from 2 metres to 12 metres. He stated that the longer lengths were usually carried between two people on the shoulder. He also said that depending on the weight of a load of lengths, he would, on occasion, be expected to carry them on his own. Those weights could vary between 50 to 60 kilograms. [34] He also stated that prior to the accident he would stand on the bars of steel, then bend down to tie it in order to fix it into place. However, after the accident he would find bigger holes in the deck in between the steel bars so that his body was not as high, in order not to have to bend over as far to tie the steel in place. He also gave evidence that after the accident, that he had continuously only carried the steel on his right side as opposed to carrying on both sides throughout the day so as to keep the weight off his left foot. Mr Dowell gave evidence that after a full day of work, he noticed his foot would swell and that it would throb throughout the day. He also gave evidence that most Steel Fixers, including himself, bend over most of the time to tie steel but stated that since the accident he stooped a lot more to protect his back. [35] Mr Dowell gave evidence that he was earning approximately $1250 net per week as a Steel Fixer, that he had worked as a Leading Hand in the past in the same industry, where the work was a bit easier but you were still required to tie steel. He also gave evidence that a Leading Hand usually got paid a little more but not much to that of a Steel Fixer. He also gave evidence that his usual day at work was about 10.5 hours a day, 5 days a week and that he was still doing that job. [36] Mr Dowell also recalled that during his work history he had suffered four occasions of back pain, the first in 1989 and then again in October 2006, October 2007 and April 2008 (see ex 35, purple tags). [37] Mr Dowell gave evidence that prior to the accident he had been able to engage in pig hunting activities but cannot do the running anymore due to his foot injury. He also gave evidence that he has taken Panadol or paracetamol most nights and that since 2007 he had brought more supportive work boots. He continues to suffer ongoing discomfort when working on construction sites due to the nature of the surfaces. [38] Mr Dowell now seeks damages in respect of two injuries, the foot injury (fracture of 5th metatarsal) and a subsequent back injury (as a consequence of that foot injury) that came to light after he suffered his first episode of back pain (post-accident) on 20 th October 2006 (ex 35). The medical evidence [39] Various medical reports were tendered into evidence for consideration. The relevant dates of examination by the respective doctors were, in chronological order, as follows: Dr Pentis, Orthopaedic Surgeon 27/7/04 Mrs Coles, Occupational Therapist 16/11/04 Dr Saxby, Orthopaedic Surgeon (Foot) 9/2/07 -- 9 of 13 -- 10 Dr Pentis 13/2/07 Mrs Coles 12/5/08 Dr Pentis 24/6/08 Dr Langley, Orthopaedic Surgeon 4/8/08 [40] It would be trite to say that during each of those examinations, Mr Dowell consistently complained of some ongoing discomfort as a result of his foot injury but continued to carry out his duties as a Steel Fixer. He reported to both Dr Pentis in his examination conducted on 27/7/04 and Mrs Coles during her examination on the 16th November 2004 that he was having difficulties in the workplace as a result of his foot injury. He made no complaint of any back pain at that time. [41] Mrs Coles formed the view at the date of her first examination that Mr Dowell may well be at risk of sustaining further strain and at worst, damage to other body parts in his endeavours to protect his left foot in the current industry in which he worked. Dr Saxby (who specialises in foot and lower limb injuries) on 9/2/07 confirmed that Mr Dowell continued to complain of ongoing discomfort associated with his foot but was of the opinion that Mr Dowell was left with 0% percentage impairment as a consequence of the fracture of the foot. He also gave evidence that he did not consider that the foot injury would have caused Mr Dowell any subsequent consequential back concerns (T3-85). Dr Pentis was of the view that while Mr Dowell has suffered a 3% impairment of the whole person in respect to his left foot injury, he was less inclined to accept that all of Mr Dowell’s subsequent back complaints post-accident were solely attributable to his left foot injury (T2-69, T2- 73). Dr Pentis was of the view that even though it is accepted that an injury may arise in circumstances were a person who has suffered a foot injury may as a consequence suffer back pain, he considered that the overriding factor in Mr Dowell’s case with respect to his presentation of back pain was more likely associated with the bending and heavy lifting involved in his job as a Steel Fixer (T2-74). Dr Langley, on the other hand, gave similar evidence to that of Dr Pentis (while under cross examination). He stated that he also felt that Mr Dowell’s foot injury would have been a factor in the aggravation of his subsequent back pain presentation post-accident, but agreed that it would have only been a very small factor in circumstances where Mr Dowell was lifting heavy items at his workplace (T3-29) which he also considered was a factor. During re-examination, Dr Langley was of the view that Mr Dowell’s foot injury had still, in his view, been a factor in the aggravation of Mr Dowell’s back problem (T3-30). Mrs Coles was willing to accede to the medical opinion of the relevant speciality (orthopaedics) on this issue. [42] Counsel for Queensland Rail submitted that I shouldn’t accept Mr Dowell’s evidence as reliable in respect of any quantum issues (T1-28) in light of the unsatisfactory account which Mr Dowell gave at hearing regarding the circumstances surrounding the accident. While that submission certainly holds some real attraction, it overlooks in my mind, the independent clinical signs noted by the various medical practitioners (and by Mrs Coles, Occupational Therapist) during their respective clinical examinations of Mr Dowell. Dr Pentis noted some tenderness on compressing the metatarsals heads and pain on rotation of the mid foot initially (ex. 6) and subsequently (ex. 9); Mrs Coles noted obvious swelling of the foot and lateral side of the ankle both initially and subsequently (exs. 7 and 11) and Dr Langley noted a slight reduction of movement upon inversion and eversion of the left foot when compared to his right (ex. 8). While it is true that Dr Saxby, on the other hand, noted no such clinical signs during his examination (ex.18), the -- 10 of 13 -- 11 other relevant orthopaedic specialists did note relevant clinical signs which were in addition to the history provided by Mr Dowell regarding any ongoing discomfort associated with his left foot of which he complained. The foot injury [43] Counsel for Mr Dowell submits that an assessment under the Civil Liability Regulation 2003 (Qld) Item 149, but more specifically under Item 148 should be made for this injury. He relies in part on the assessment which has been made by Dr Pentis in his report (ex 8) of 7.5 – 10% loss of the efficient function of the affected lower limb. However, Schedule 4 of the Regulation only refers to impairment of the whole person, not impairment of a part of the body (The Annotated Civil Liability Act 2003 (Qld), 1st ed, p 138). Dr Pentis did, however, provide an assessment in that regard of 3% whole person impairment. Dr Langley assessed the foot injury at 5% impairment, however it only relates to the lower extremity of his foot (ex 14). [44] Based on the medical available for consideration, I consider an assessment under Item 149 – Moderate Foot Injury, an ISV of 6 to be appropriate. Mr Dowell has consistently complained of ongoing discomfort which has not prevented him from engaging in most daily activities. He has suffered some permanent deformity (noted by Dr Saxby that the fracture was not perfectly aligned). The Back Injury [45] Counsel for Mr Dowell submits that assessment ought to be made under Item 93 of the Regulation. Counsel relies on the evidence of Dr Langley and in part, Mrs Coles’ preliminary opinion which she expressed (already referred to) in her first report (see ex7). [46] Counsel also referred to section 4 of Schedule 4 of the Regulation in his submission that an increase of 25% of the maximum dominant ISV was warranted where multiple injuries had been suffered. [47] Dr Langley assessed a 7% impairment of the whole person for the back in his report (ex 14). [48] After careful consideration of the whole of evidence available, particularly having regard to the medical evidence on this issue, I am unable to conclude that Mr Dowell’s subsequent back pain presentation in October 2006, 2007 and April 2008 was caused or materially contributed to by the foot injury which he suffered on 16 th January 2004. As acknowledged by all of the orthopaedic specialists, a significant factor in the presentation of Mr Dowell’s subsequent back pain was more likely attributable to the type of work and the nature of it which he had been performing as a Steel Fixer over many years and that any contribution by the foot injury only played a small factor in any subsequent ‘aggravation’ of his degenerative spine (ex 42) which manifested itself as the presentation of back pain on the occasions post- accident. [49] It follows that I make no assessment in respect of any back injury. -- 11 of 13 -- 12 Assessment of damages: 1. Pain, suffering and loss of amenities............................................... $6,200.00 2. Economic Loss - past ...................................................................... $4570.71 - interest (past)....................................................... $2285.35 - future ................................................................... $16,000.00 3. Loss of superannuation - past ...................................................................... $411.36 - future ................................................................... $1,440.00 4. Special damages - medication (for foot injury) ................................ $199.50 - travel expenses (4 x 70 km @ 50c)..................... $140.00 - medical expenses (Workcover refund) ............... $231.84 - supportive work boots (4 pr since 2007 at $110 pr x 2 yrs = $440.00)............................. $440.00 5. Future expenses - supportive work boots (2 pair at $200 x 5 yrs = $2000) ..................................................... $2,000.00 6. Fox v Woods - Ex. 1 .................................................................... $1,017.00 Total ................................................................................................ $34,935.76 Notes: Re 1: Item 149, ISV 6 Re: 2 Past Economic Loss: [50] The period Mr Dowell was off work being a period from 16/1/04 to 8/5/04 at $711 net per week. Interest has been calculated at a rate of 10% over 5 years. Future economic Loss: [51] Mr Dowell gave evidence he intended to work to age 65. [52] Dr Pentis considered that Mr Dowell’s foot injury alone may well have caused him continued difficulties in his current employment as a Steel Fixer as it was hard on the feet (ex 6) but stated that he couldn’t be 100% sure that he wouldn’t be able to work until normal retirement age (T2-72). Dr Langley considered the foot injury alone could cause some early retirement, up to 5 years (ex.16), but with good footwear may possibly be able to get to normal retirement age (T3-30). Dr Saxby did not consider the foot injury would at all impact upon his ability to continue to work full time. [53] Taking that evidence at its’ highest, I consider Mr Dowell may well have stopped working as a Steel Fixer a little earlier than age 65, even with good footwear and notwithstanding his pre-existing degenerative spine. Mr Dowell had continued to complain of ongoing foot discomfort even notwithstanding that he had always worn safety boots and since 2007, has worn more supportive work boots. Mr Dowell -- 12 of 13 -- 13 would be at a disadvantage on the open labour market. A defined weekly loss cannot be determined. In view of his age, work history and loss to date and potential loss for his impairment, a loss of say $16,000.00 seems appropriate. A modest amount of damages to reflect this calculated at $1218.45 net – say $600 net (in alternative employment as a truck driver because of his limited qualifications and education) for 1 year = $32,159.40 would have been an alternative method of calculation. If one allows say six months off work for the balance of his career, a present loss of $16,000.00 seems adequate. Re 3: 9% relevant rate applied. Re 4: Medication is allowed for foot injury for 133 fortnights. There was evidence given by Mr Dowell’s partner, which I had no reason to reject, that he would show discomfort in relation to his foot upon arriving home from work (T2-91). Orders: 1. Judgment for the defendant. 2. The parties are given leave to make submissions in writing on costs within 28 days, failing agreement between the parties. -- 13 of 13 --