Ewart v Queensland Railways [1996] QSC 269

o o o TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND . . CIVIL JURISDICTION CULLINANE J No Wl15 of 1993 GRAHAM PETER EWART and, QUEENSLAND RAILWAYS TOWNSVILLE .. DATE 13/12/96 JUDGMENT REVISED COPIES ISSUED Court Reporting·Bureo.u Date '1 ., (1- I q ( Plaintiff Defendant This judgment is to be copied for the purpose of research and private sn..k~·:' only. It is not to be resold or used for republication in any other way without permission. 1 -Ilh Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (01) 221 4360. Facsimile: (07) 227 5532 "., .' -- 1 of 16 -- 131296 HIS HONOUR: The plaintiff's cause of action is admitted. The plaintiff was born on 16 April 1950 in New Zealand. He was injured in the course of his employment with the defendant on 24 September 1990. The plaintiff at the time was a ganger based at Homestead and in charge of a gang of nine fettlers. He had been employed by the defendant, apart from a short break, since February 1978, shortly after his arrival in Australia from New Zealand. His history with the defendant is set out in Exhibit 1 and in particular paragraphs 5, 6 and 7 thereof. The plaintiff has not worked since the accident. The plaintiff was injured when he and some.five co-employees lifted a length of rail some 540 kilograms in weight. He sustained a serious injury to his lower back. This is not in dispute. He also alleges that as a consequence of the injury to his back, he now has a serious disability of the legs and in particular the left leg. A patellectomy was performed on the left leg and an infection developed. I will return to this shortly. The plaintiff was attending a course at Rockhampton when he was injured. He continued the course although in considerable pain, and took painkilling tablets to enable him to do so. He thought at the time he had pulled a muscle in his back. On completion of the course he returned to Homestead and during this time was experiencing a burning sensation in his back relieved by rest but which returned on resuming activity. He commenced his annual leave on 8 October and because of the constant pain he was experiencing in his back, attended at the 2 JUDGMENT 10 20 0 o 30 o 40 0 50 60 -- 2 of 16 -- o o o o 131296 Charters Towers Hospital when he returned on 29 October 1990. The history of the plaintiff's admissions to hospital appear also in Exhibit 1 and in particular from paragraphs 16 onwards. The plaintiff was referred to Dr Low, an orthopaedic surgeon who saw him for the first time if I understand matters correctly, in January 1991. A discogram was performed which showed a transitional lumbo sacral vertebra with the first unprotected segment above that, disrupted. The disc was torn and pressing on the LS nerve root and at that time a fusion was performed. This occurred in January 1991. The nature of the fusion was described by Dr Low as a 360 degree spinal fusion. The plaintiff obtained some significant ,relief asa result of this but the pain reappeared and his condition deteriorated. The plaintiff had been immobilised for a substantial period, the details of which appear in his statement and also in reports of Dr Low. At some time after he was referred to Dr Low and he had the fusion performed, he complained of symptoms in his knee joints. The precise cause of these has been the subject of considerable debate amongst the medical witnesses_ who gave evidence. The plaintiff was readmitted on 3 November 1991 when the plates which had been inserted in his spine were removed. At the same time he underwent arthroscopies of both knees. These were performed by Dr Low. Dr Low decided to perform a patellectomy on the left knee and this occurred in April 1992. 3 JUDGMENT 10 20 30 40 50 60 . -- 3 of 16 -- 131296 It appears that over a period of time the fusion mass at the level of the lumbar spine, where it had been performed, migrated up to the next vertebra, and in consequence Dr Low decided to perform a further fusion. This was performed earlier this year, and the plaintiff again has obtained some benefit in terms of reduced pain levels from this, but continues to suffer nonetheless from substantial pain in this area. Following the patellectomy, the plaintiff's knee joint became infected and this has resulted in considerable damage and substantial permanent disability to the left joint. The plaintiff is mobile but uses a:wheelchair from time to time. He gave evidence before me sitting in a wheelchair although he on occasions stood. The use of the wheelchair is, I am satisfied, a reasonable course for him to take. It is likely that his knee joints will deteriorate and he may require knee replacement procedures or other measures to reduce the level of pain in his joints and also in his spine. The plaintiff, I am satisfied, is substantially disabled and is permanently unemployable. I had a good deal of evidence directed towards the cause of the plaintiff's knee problems, as I have said, and also as to what the plaintiff's likely future would have been had he continued to work in his then position and had the accident not happened. The work is undoubtedly of a heavy nature.· I am told that as a result of restructuring within the defendant's organisation the position the plaintiff employed does not exist as such at present, although someone broadly 4 JUDGMENT ,',.'., , ' 10 20 0 o 30 o 40 0 50 60 -- 4 of 16 -- 131296 ( performing the same tasks would now carry out some degree of clerical work and somewhat less heavy physical work. o o o o I had evidence from four orthopaedic surgeons, Dr Low, who was called by the plaintiff, and Drs Laister, Lewis and Douglas, called by the defendant. In addition, I had evidence from Dr Watson who is a specialist in rehabilitative medicine. I also had evidence from a Mr Clarke who was the plaintiff's superior at a time when the plaintiff worked as a member of a fencing gang based in Ingham. Two of the witnesses who were called worked with the plaintiff at about this time. Some reliance was placed upon a report Mr Clarke wrote to the relevant officers of the defendant in' relation to a proposal to promote the plaintiff to a vacancy as a ganger on the Hughenden/Winton section. Mr Clarke wrote that he did not recommend the plaintiff for that position as he was not able to move about freely doing his work. The full terms of the report appear in Exhibit 6 which is a bundle of documents emanating from the defendant relating to the plaintiff. The plaintiff spoke of animosity between himself and Mr Clarke. His two co-employees gave evidence that the plaintiff worked without any apparent difficulty and also spoke of some p'roblems between MrClarke and the, plaintiff. The two witnesses also said, as did the plaintiff, that the plaintiff did not wear a brace, as Mr Clarke suggested, but rather a wide belt /, which people working in those positions would wear-' to provide some support to their back. 5 JUDGMENT .. ,.... 10 20 30 40 50 60 -- 5 of 16 -- 131296 Mr Clarke also spoke in a somewhat uncomplimentary way about the plaintiff's performance as a member of the gang. Both of the employees, Mr Bligh and Mr Musmarra, gave evidence that working in such a position would tend to cause complaints of back problems from time to time and that the plaintiff did no more than complain in that way. The plaintiff had had some previous incidents involving his back and on two occasions his left knee. These appear in Exhibit 1 at paragraph 8. One of these in October 1987 involved his being off work for a substantial period and concerned his back. It is to be noted that Mr Clarke's report relates to a period shortly after his return to work following a back complaint in mid 1988. As I have said, much of the evidence concerned the plaintiff's likely future had he not had the injury that I am concerned with. Some of those who expressed an opinion about this did so based upon Mr Clarke's report, a report of Dr Doherty, a medical officer employed by the defendant, dated 31 August 1988, and a reference in the Charters Towers Hospital report to the plaintiff having had back problems for over a period of 20 years, which represented a period significantly in excess of the period the plaintiff had worked for the defendant. I heard evidence which involved an examination of the records of the Ingham Hospital and the Townsville Hospital concerning the plaintiff's admission on the occasion I am concerned with and so far as Ingham Hospital is concerned, earlier occasions. It is' I think unnecessary for me to canvass the medical 6 JUDGMENT ~'. ,:.,' 10 20 0 o 30 o 40 0 50 60 -- 6 of 16 -- 131296 l evidence at any length and sufficient if I set out the conclusions that I have reached in relation to the various issues which that evidence was directed to. o o o o I do not think the evidence supports the conclusion that the plaintiff had exhibited serious back problems prior to September 1990. He did however on occasions complain of back problems which led to his seeking treatment as Exhibit 1 relates. The radiological evidence does not in my view provide any basis for a conclusion that the plaintiff's back was already markedly degenerate and causing him significant problems. It is difficult to know quite what to make of Mr Clarke's evidence as he himself does not have any clear recall of the ... circumstances. I am inclined to think that it is. probably .. related to the fact that the report was made at a time shortly . . after the plaintiff had had time off work-complaining of back problems. It does not lead me to reach any conclusion different to that that I have already stated. So far as the plaintiff's knees are concerned, this,.too as I have said, has been the subject of substantial debate amongst the medical witnesses who gave evidence. Drs Laister, Lewis and Douglas thought that the plaintiff suffered from a developmental or congenital condition which resulted in an abnormal movement of each patella. This, according to Or Laister who took some X-rays of the.plaintiff's knee joints in early 1992, involved subluxation of both knee caps. 7 JUDGMENT 10 20 30 40 50 60 -- 7 of 16 -- 131296 The evidence satisfies me that the plaintiff had not, by the time of the accident, developed any symptoms produced by degenerative changes in his knee joints. Dr Low was adamant that the plaintiff's condition was not the result of a developmental or congenital cause, but that it was the result . of a wasting in the knee joints which had been produced by the prolonged immobilisation which the plaintiff's back problems had resulted in. On the other hand, Drs Laister, Lewis and Douglas, whilst conceding that there may be a possible link between the development of the symptoms at the time they appeared and the prolonged immobilisation, thought that the condition was developmental in origin. I should add that although there was some criticism of Dr Low for having chosen to perform a patellectomy rather than another procedure, with the most trenchant criticism in this regard coming from Dr Laister, there is no basis in my view for concluding that that treatment was of a kind which should not be regarded as a compensable consequence of the defendant's negligence. As I have said, the unfortunate outcome of it has been that an infection developed and the plaintiff has had serious consequences as a result, in his left knee joint. In relation to this aspect of the matter, I prefer the evidence of Drs Laister, Lewis and Douglas, that the condition _ was a congenital one but I accept that the symptoms were produced by the prolonged immobilisation and the consequences, at least so far as the left leg is concerned, are ascribable to the defendant's negligence, and that the development of the 8 JUDGMENT ',: ,.,~I 10 20 0 o 30 o 40 0 50 60 -- 8 of 16 -- 131296 ( symptoms and the production of those symptoms in the other leg, at least for some time, shouldberegarded.also as ascribable to the defendant's negligence. o o o o As to the future, various views have been expressed as to what this is likely to have held for the plaintiff. Again, I do not think it is necessary for me to canvas the 'evidence in any detail. I accept, as I have said, that the plaintiff had not by the time of the accident manifested any significant symptoms in the spine, and any symptoms in the knee joints. However, I also accept that it is likely, given the work which the plaintiff was doing, that with the passage of time, he would have developed symptoms in the spine, which ultimately would have limited his capacity to perform that type of work, and that he also would have developed symptoms in the knee joints which, though I think less likely than his back to have limited his activities as a ganger,posethe risk that this would occur. In any case, lam satisfied that he' would not have been likely to work until a normal ,retirement age in the work that he was engaged in at the time, of the accident. As I have said, it is likely that with the changes in the defendant's organisation, the work which the plaintiff had been doing would have become somewhat less arduous, which' would, in consequence, have resulted in his being able to continue somewhat longer in that work than would have been the, case had those changes not occurred. 9, JUDGMENT 10 20 30 40 50 60 -- 9 of 16 -- 131296 ( I should also add, the plaintiff who is a married man, has a claim for past and future assistance. His wife has provided assistance in the past and still does. She also, it appears, has sustained some injury, and at present at least some of the assistance that the plaintiff requires is being provided by the Department of Social Security. I accept that the plaintiff's condition will slowly deteriorate and that it is not unreasonable of him to use a wheelchair, and that it is likely he will increasingly do so. As I have said, it may be that he will have to undergo knee replacement procedures. It is difficult to see how, on the findings I have made, any replacement of the right knee joint is ascribable to the defendant. On the other hand, it may be that the increasing levels of pain which he suffers will be able to be addressed in other ways. Whilst I have found that the plaintiff would, in any case have deteriorated as a result·of the two conditions that I have referred to, that is .his spinal condition and the condition of his knees, I do not think there is· any basis for concluding that it is likely that the plaintiff would have found himself in the position that he currently is, with the needs to which that condition gives rise, although some allowance has to be made for the risk that he may have had some needs, such as in relation to pharmaceutical expenses and other types of expense associated with his deteriorating condition. I turn now to the assessment of damages. I assess the plaintiff's general damages in the sum of $80,000. Of this, I 10 JUDGMENT .. ,~;".:;., ' .• !:- ,.; . ~: .. ;: .. 10 20 0 o 30 o 40 0 50 60 -- 10 of 16 -- 131296 ( ascribe $40,000 to the past. The plaintiff has received a lump sum payment from the Workers' Compensation Board of some $21,400. I allow interest on the difference, which is $18;600 for six years, producing a figure of $2,232. o o o o So far as past economic loss is concerned, there was in the result, no real dispute about the amount contended for, and I allow the sum of $130,000 for past economic loss. The plaintiff has. received by way of income substitution payments, $37,714 from the Workers' Compensation Board and $28,581 from the Department of Social Security. I allow interest on the difference, namely $63,705 at 5 per cent per annum for six years, producing a figure of $19,111. So far as the future is concerned, the plaintiff has made a claim based upon the income which he would have earned had he still been in employment with the defendant until age 65. The plaintiff's nett weekly income would have been $394. As I have said, I think that there has to be a discount of some significance for the likelihood that the_plaintiff would not have been able to work to a normal retirement age. There has, of course, to be an allowance made for the possibility that he may have been able to obtain increasingly lighter work within the limits of his decreasing capacities, but he is a- man without any real qualifications, who, at the time I think he would have been unlikely to have been able to continue in the sort of work he had engaged in, woulQ not have been likely to have been an attractive employee in the market place. 11 JUDGMENT 10 20 30 40 50 60 -- 11 of 16 -- 131296 /" f The usual contingencies and vicissitudes also have to be allowed for. I think the effect of the evidence supports the conclusion that the plaintiff's capacity to work in the future had he not had this accident is somewhat greater than had been expressed in the opinion of Dr Douglas when he prepared his report, and I think a reading of the.evidence would support the conclusion that the orthopaedic surgeons who expressed a view about this thought that he would have been able to work for somewhat longer periods in view of the changed nature of the tasks. I allow in respect of future economic loss, . including a loss of superannuation entitlement, the sum of $200,000. Lest I have not made it clear, past economic loss is intended also to make allowance for superannuation entitlement. There are very substantial claims advanced in respect of past and future care and assistance. The evidence in relation to these claims certainly supports the finding that the plaintiff has in the past required substantial domestic assistance, and especially during the periods following his various surgical procedures. The evidence also supports the conclusion that he continues to require care and assistance, but I accept that the evidence at present would not support the conclusion that the assistance being provided is anything like that which is claimed. The claim is based upon $10 an hour, although it was ultimately conceded that a'more appropriate figure would be $9 an hour. In addition, it appears that when the claim was 12 JUDGMENT 10 200 o 30 o 40 0 50 60 -- 12 of 16 -- o o o o 131296 first formulated it also related to periods during which the plaintiff had in fact been hospitalised. I certainly think that the claim in respect of past domestic assistance is substantially greater than the defendant would have contended for. It is virtually impossible to approach this on any mathematical basis and it must ultimately be a matter of the impression that the evidence leaves one with. I allow in respect of past domestic assistance the sum of $45,000. I allow in respect of interest on that sum a figure of $5,400 which is 2 per cent per annum for six years. The claim for future domestic assistance I am told, in common with the other claims for future expenses, is based upon a life expectancy of 25 years, when in fact the plaintiff's life expectancy is 31 years. In relation to this I have had evidence from Mrs Coles, an occupatIonal therapist who·has made an assessment of the plaintiff's needs. She was cross- examined about this and said that she was not so much influenced by what was in fact being done, ·as by what she· thought should be required for: the purposes of meeting his needs. This aspect of the matter, as indeed other aspects of damages, .. are complicated by the fact that any deterioration in the . plaintiff's right leg is not in my view ascribable to the defendant. There has to be taken into account some possibility that the plaintiff as he aged would have required assistance in any case, and I think that in any case it' is appropriate to modify the claim because of the fact that in my 13 JUDGMENT 10 20 30 40 50 60 -- 13 of 16 -- 131296 view the plaintiff's needs may in the future decrease with successful surgery or management of his pain. I do not overlook the fact ,that at least for some time his condition is likely to deteriorate. Doing the best,I can in ,relation to this aspect of the matter, I allow in respect of ,future'domestic assistance the sum of $130,000. So far as future pharmaceutical expenses are concerned, I think the only factor that needs to be taken into account is that the plaintiff may have 'required some pharmaceuticals in any case, although it is hardly likely he would have required anything like the pharmaceuticals either in terms of quantity or nature that he is currently taking. I allow in respect of this, and bearing in mind the discount that the erroneous life expectancy figure already produces, the sum of $17,500. So far as future medical expenses are concerned, again I think some relative,ly small discount is required for the same reason and 'r allow the sum of $19,,000. There is a substantial claim for future travelling expenses. It is again not possible to approach appropriate discounts on any arithmetical basis. As I have said, at least in part the plaintiff's future-condition will not be ascribable to the defendant's negligence. Doing the best I can in relation to this also, I allow the sum of $37,500. 14 JUDGMENT 10 20 0 o 30 o 40 0 50 60 -- 14 of 16 -- o o o o 131296 So far as future physiotherapy expenses are concerned, I think somewhat similar remarks apply and I allow the sum of $17,500. There is a claim in respect of home modification and I am satisfied that such a claim is justifiable. The amount claimed is based upon the cost of an appropriately modified home, less the enhancement value of the home as a dwelling. I think that taking the valuation evidence as a whole the sum claimed is not an unreasonable amount. I allow for this $30,000. When one comes to the claim for recurrent expenses, it is apparent~ it seems to me, that many of these relate to normal household expenditures. Indeed, if one looks at.Mr Deshon's· evidence at page 103 of Exhibit 2 it is difficult to see why all of those items are not simply to be treated as the usual incidents of home ownership and the expenditure that might be expected to be incurred in any case. I think, looking at schedule 5 at page 101 it is' appropriate to allow, however, the other items, and applying.this sum over the period of the plaintiff's life expectancy produces a figure of about $42,000, which I allow. I allow the claim for future equipment in the sum of $32,327, and it does not seem to me there is any basis upon·whichto disallow the claim in respect of recurrent expen~es which is based upon the figures shown in the amended schedule of damages to Exhibit 1. These appear on the last page and 15 JUDGMENT 10 20 30 40 50 60 -- 15 of 16 -- 131296 [' represent expenditures of about $111.90 per week, producing a figure of $84,674 over the plaintiff's lifetime. I allow the Fox and Wood component in the sum of $4,068. There was an undertaking which I assume appears on the record, that in, the event the plaintiff receives a refund from the Commissioner of Taxation, it will be repaid to the defendant. There was no dispute about special damages, and they are allowed in the sum of $29,076. I also allow interest in respect of the payments made by the plaintiff, of items forming part of the special damages claim, in the sum of $3,291. The total of these sums is $928,679. From this has to be deducted the sum of $68,499.59, producing a figure of $860,179.41. With regard to reserved costs, I will give the parties liberty to apply on one day's notice to the other, and if you want to raise the matter, if there is to be argument, you should exchange written submissions on the matter, so that when it comes before me, you will each know what the other has to say. 16 JUDGMENT ,,' ',",' .' 10 20 0 o 30 o 40 0 50 60 -- 16 of 16 --