Brown v Queensland Railways [1995] QSC 240

( ('- q~ 2/i -D-~•c :::,~1-,-,u~, 5 (___, ,) I t' · · 0 •·· : State <f- o) qi Reporting Bureau 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 CHAMBERS DEMACK J No 35 of 1995 BERNARD LESLIE BROWN and QUEENSLAND RAILWAYS MACKAY •• DATE 13/07 /95 ORDER Plaintiff Defendant 1 4th Floor, The Law Courts, Georf(e Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 7 -- 130795 (Demack J) HIS HONOUR: This is an application by the plaintiff for an order that the period of limitation within which to commence an action for damages for negligence and/or breach of duty with respect to bodily injury arising from an incident on 4 November 1984 be extended up to and including the 16th day of March 1995. 10 The applicant was born on 25 December 1948 in New Zealand. He worked in various manual occupations in New Zealand up until coming to Australia in 1979 at the age of about 31 years. He commenced working with Queensland Railways as a labourer and plant operator in about 1984. On 4 November 1984 he was working with a track laying crew in the Bowen area. The work they were doing was replacing a section of rail and sleepers. Much of the work was done by a track laying machine. This machine was capable of lifting sections of the railway line, removing and replacing sleepers. However, at railway crossings this work had to be done by hand. The sleepers were removed and the ones that were in good condition were loaded onto a truck and the others were placed in a pile to be burned. The sleepers were lifted by two men. The plaintiff can not recall who he was working with at the time of the incident. His method of lifting was simply to bend over at the waist, take hold of the sleeper, lifted it up, straightening his back. He bent down to pick up one end of the sleeper. As he pulled up he felt an extreme pain in his lower back extending down into his legs. He fell to the ground. He was taken to the Mackay Base Hospital, having received 20 30 40 50 60 2 ORDER ( C C c/ -- 2 of 7 -- ·~ ' 130795 (Demack J) first aid at Bowen. He was not admitted to the Mackay Base Hospital but it was recommended that he have one week of strict bed rest with pain relief and muscle relaxant. He was off work altogether about four weeks. He went back to his former employment. He found that there was now a change in the way in which things were done. The supervising foreman 10 told him and the others to be careful how they lifted, that they were to bend at the knees and keep their back straight. They were to keep the weight close to the body. He left the employ of Queensland Railways three months later and has since worked at various occupations. He has suffered pain 20 and discomfort in his back since 1984 but has remained in constant employment except for one period of about a week where he suffered back pain after bending over. This occurred in 1990, and he sought chiropractic treatment. From 1984 up until about that time he had been to see three or four doctors about his back pain. He believed things were not right and was not happy with what he was told, namely that he was getting old and that he had arthritis. Nonetheless he had been to see qualified medical practitioners, and there is a very limited range of options available to a lay person who believes that the medical advice they are receiving is not satisfactory. 30 40 He took the course that many people take when they have back 50 pain, and went to see the chiropractor after the 1990 incident. He received treatment in respect of two particular periods when he attended, and at the end of that seemed to improve. However, the significant thing was that he did not 60 3 ORDER -- 3 of 7 -- 130795 (Demack J) lose any time off work in spite of the pain and discomfort. He believed that there was a stigma attached to complaints of bad backs in the workplace and did not want to appear reluctant to perform any task because he was suffering some pain and discomfort. He experienced another incident in the middle of last year. He went to see a doctor who referred him for the first time to a specialist orthopaedic surgeon. That specialist was Dr White who took a full history from him and came to the conclusion that his back problems relate to the initial injury some 11 years ago at work and that they have been aggravated by the work he has done since. At present Mr Brown is employed driving vehicles at Norwich Park Mine. Dr White says, "There is no question that if he continues to drive unsprung machinery and carry out heavy physical labour that he will get progressively worse." He says in short, "I 10 ( '· 20 30 think he needs to take a commonsense approach to his back and ( seek a lighter job." This opinion, contained in a letter of 21 July 1994 from Dr White to Dr Fraser whom the plaintiff consulted, was the first indication that the plaintiff had that there was a connection between his back problems and the lifting incident 11 years ago. Also it was the first indication that he would no longer be able sensibly to carry on heavy labouring work. The application under section 31 of the Limitation of Actions Act involves the establishment by the applicant that independently of any limitation of action there is a claim 40 50 60 4 ORDER -- 4 of 7 -- ( 130795 (Demack J) that may be brought by the applicant against the defendant. Mr Stenson, who appeared for the Queensland Railways, submitted that there was no evidence as to the weight of the sleepers and consequently no evidence that there was a breach of duty of a kind that could constitute negligence. It seems to me that there is sufficient evidence in the material that I have indicated is contained in the affidavit. First of all there is the fact that the track laying was ordinarily done by machines which suggests that the lifting involved was of a kind that contemporary work practices see as appropriately done by machines. Secondly, the sleepers were lifted by two people. Thirdly, the method of lifting that Mr Brown was using was one that has long been condemned and known to be of a kind that produces a serious risk of injury. There is also the change of practice after the incident whereby not only the applicant but the other employees were instructed to lift with straight backs with the object close to their body and to apply the lifting force through their legs. All of these matters suggest that the lifting that was involved was of weights that produced a significant risk of injury to the plaintiff if the lifting was not done in a proper manner. It does not seem to me to be essential to this that any particular weight of the sleepers is demonstrated. It is, of course, common enough to see sleepers about as they are a commonly exposed piece of timber. Their approximate dimensions can be readily visualised, but that, of course, does not establish their 10 20 30 40 50 60 5 ORDER -- 5 of 7 -- 130795 (Demack J) weight in any sense that judicial notice can be taken of it. However, the way in which I have indicated the matter can be approached seems to me to be proper on the evidence before me. Consequently, I am satisfied that there is evidence of negligence on the part of the defendant in respect of the incident in which the applicant says he sustained injury to his back. It is clear that the nature and extent of that injury was not known to him until he had heard of the report from Dr White. Up until that time he had worked with discomfort but without loss of pay. There was no sensible reason for him to go to a solicitor to commence an action because he had received workers' compensation over the relevant period. He had sought medical advice, and although 10 20 it was not satisfactory to him, there was no other reasonable 30 course that he could take. Lay people are limited by the professional advice they receive if they take that initial step of seeking it. Consequently I am satisfied that in the circumstances here there was an incident in respect of which a case of negligence is established, that that produced injury to the applicant but the full nature and extent of that was not known to him until the middle of last year. That was a time well outside two years after the incident in 1984 and the writ has been issued well within 12 months of the time when Dr White's opinion became available. 40 50 60 6 ORDER ( -- 6 of 7 -- ( I \ 130795 (Demack J) In all the circumstances I am satisfied that the period of limitation should be extended up to and including the 16th day of March 1995. There will be an order in terms of the summons in respect of both paragraphs A and B. 10 20 30 40 50 60 7 ORDER -- 7 of 7 --