Drochmann v Queensland Railways [1994] QSC 41

( I\ State Reporting Bl!_reau 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 n.cporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 34 of 1993 COLIN MELVIN DROCHMANN and QUEENSLAND RAILWAYS ROCKHAMPTON .. DATE 04/02/94 JUDGMENT 1 RE.VtSED COPIES ISSUED \ St~te Reporting Bureau -1 1 G!/1 :/t.f- Date 1 Plaintiff Defendant 4th Fluor, 1'/l£• Law Courts, Gcorgc Street, /Jrisbunc·. Q. 4000 Telephone: (07) 227 4360. Fucsimill': (07) 227 5532 -- 1 of 8 -- 04029.4 (Demack J) HIS HONOUR: Mr Drochmann was born on 15 March 1948. He commenced working for the defendant on 28 January 1964. At that stage he was obviously 15 years of age. He sustained injuries in the course of his employment on two specific occasions. The first of these was on 13 August 1990 when he twisted his left knee and suffered lower back pain when 10 jumping from a motor vehicle. Later on 14 May 1991 he suffered a severe episode of lower back pain whilst pushing a 25 tonne test wagon along with other workmen. 20 On 23 April 1993 he issued a writ claiming damages against the C: defendant. Clearly enough, the damages that arise from those specific injuries are well within the normal period of limitation. The issue in this application is whether the period of limitation can be so extended as to embrace the 30 effect of injuries sustained through poor work practices over a lengthy period of time. Mr Drochmann had been aware of backache prior to 1991 and had, c/ indeed, sustained injuries in the course of his employment 40 earlier than 1990. However, in respect of the pain and loss of mobility that followed from the incident on l/ 13 August 1990 and the incident on 14 May 1991, Mr Drochmann says he believed that these were a result of the specific trauma that he had then experienced. This understanding is 50 confirmed, if that be the right word, in the affidavit of a general practitioner Dr Ganter (Document 54). 60 JUDGMENT 2 -- 2 of 8 -- 040294 (Demack J) In paragraph 15 Dr Canter says: "On the numerous occasions that Mr Drochmann has consulted me in respect of injuries to both knees and his back, I do not believe that I have ever told him that aggravation of the degenerative changes therein were factors contributing to his injuries. When he complained of a specific incident causing his injuries, the injuries appeared to be consistent with the stated cause. I do not recall ever telling Mr Drochmann what may have caused the degenerative changes in-his spine and knees. I did not discuss with him that there may have been a relationship between the degenerative changes in his joints and the type of the work that he performed." Mr Drochmann worked as a scale maker and in his affidavit, Document 4, he describes the work in paragraph 12 in this way: "Most of my 1,1ork as a scale maker over twenty-seven years with the Defendant involved squatting, kneeling, working in confined spaces and twisting my body around beams, levers and the like. It was usual for me to spend a number of hours working in cramped conditions. I received no instruction or advice to take regular breaks to relieve my posture. Often, sometimes days at a time, I would be required to lift weights on to weigh bridges. The work involved the men forming a human chain and passing along fifty-six pound weights from our right-hand side to our left-hand side. We could stand in the one position twisting our bodies to pick up a weight and passing it as far as possible to the other side of our bodies and placing it down for days on end. This would be done to test weigh bridges. It was a regular part of our work to lift and carry weights. We would usually carry the weights two at a time, i.e. we would carry one hundred and twelve pounds. It was generally recognised amongst the workers that it was better to carry two weights, i.e. one on each side rather than one as you would become lop sided and get sore more quickly carrying one. 11 This work is obviously work of the heaviest and most arduous nature that involved not only the regular lifting of heavy weights, but the regular working in very cramped conditions. Mr Drochmann says that he was advised for the first time on JUDGMENT 3 10 20 30 40 50 60 -- 3 of 8 -- 040294 (Demack J) 9 December 1992 by a medical practitioner, Dr Johnson Nurse, that his back disability was due to wear and tear over along time. He consulted a solicitor in March 1993 and eventually saw his present solicitor on 8 April 1993. He was then advised that the work practices to which he had been subjected may involve a breach of duty. The contention here then is that up until that time he was not aware of evidence of alternative systems of work which could have greatly reduced the likelihood of his sustaining injury. It was contended by Mr McMeekin that the availability of an alternate system of work which would have reduced greatly the risk to the applicant could be a material factor of decisive character as that concept is defined in the Act. Mr McMeekin relied on a decision I have given earlier in Sichter v. Gregory N Conrad and Sharon N Conrad 62 of 1991, judgment given on 8 May 1992. In that case I examined the decision of the High Court in Do Carmo v. Ford Excavations 10 20 c! 30 Pty Ltd (1984) 154 CLR 234. I came to the conclusion that the (/ majority of the members of the High Court in that case supported the view for which Mr McMeekin contended. So, here it is asserted on the basis of the plaintiff's evidence that up until he knew of the availability of this alternate system of work, he was not aware of a decisive factor of a material kind which was relevant to his claim for damages arising out of work practices over a period of 27 years. The evidence that suggests to the contrary comes from Ms Peters. Ms Peters is a rehabilitation counsellor employed by the Workers' Compensation Board. In her affidavit she says JUDGMENT 4 --------- 40 50 60 ( -- 4 of 8 -- ( 040294 (Demack J) in paragraph 4: "On 4 October 1991 I had a further interview with Colin during which he stated that he had been advised to seek alternative work by both the doctor and the physiotherapist. During this interview I discussed with Colin the fact that he would not be able to return to work of a similar nature to that he had previously been performing as a scale maker. I explained to him that his inability to return to his previous work was partly caused by the long days he had previously undertaken as a scale maker which included several hours driving in travelling to the work site and working for extended hours while crawling in, out and under things. I discussed with Colin the effect work of that nature would have on his back and left knee. Colin stated to me that he preferred not to think about such matters and that he would wait until he spoke to Dr MacFarlane." When Ms Peters was cross-examined it became clear that she was discussing the work that Mr Drochmann had been doing and would be expected to do as a scale maker essentially from the perspective of his ability to return to that work. She was not suggesting a medical opinion that his present condition was a consequence of the work that he had done over 27 years. What she was doing was saying that in view of his present condition, he would not be able to return to that kind of work. That, of course, is a different issue from the one that the plaintiff seeks to establish here and it does not seem to me that Ms Peters' evidence in any way casts doubt on Mr Drochmann's assertion that in respect of his degenerate condition he first became aware that that was a consequence of wear and tear over a long period of work in November 1992 and that he became aware that alternate work practices, which might have reduced the risk to him significantly, were available first in April 1993. In those circumstances, I am satisfied that he has JUDGMENT 5 10 20 30 40 50 60 -- 5 of 8 -- 040294 (Demack J) demonstrated that a material factor of a decisive kind did not become within his knowledge until that date. In respect of the reasonableness of his conduct up till that time, it is clear that he has sought medical attention when that attention has been required. It seems clear from those 10 doctors who dealt with him and who swore to affidavits as to what was said, that they have not suggested to him that his presenting problems were other than those that were a consequence of the specific incidents that took him to the doctors. In other words, he only became aware of the impact of wear and tear through heavy work when Dr Johnson Nurse discussed this with him in November 1992. Until he was aware of that medical fact there was no basis for him to begin to seek legal advice and thereafter he moved with reasonable 30 speed from one solicitor to another until he received his present advice. In the circumstances, I am satisfied that he has taken all C' / reasonable steps to inform himself and that in the 40 circumstances the time should be extended. Are you satisfied with order in terms of the summons, Mr Carroll? 50 MR CARROLL: I have a draft order, Your Honour. HIS HONOUR: Order in terms of the draft, initialled by me and placed with the papers. 60 JUDGMENT 6 -- 6 of 8 -- ( \ 040294 (Demack J) HIS HONOUR: This matter has been before me on two previous occasions. On the return date of the summons, 22 November 1993, the application was adjourned by consent until 13 November 1993 and costs were reserved. The reason for the adjournment was that the defendant needed more time to consider the material. The plaintiff had, indeed, filed a substantial amount of material in the application. This was filed on 12 November 1993. It would seem to me to have been foreseeable that such an adjournment would be sought and in those circumstances I am not satisfied that at this point any order should be made in respect of those costs. The practice with these applications as a general rule is that the plaintiff, though successful, does not get an order for costs because an indulgence has been granted. When the matter came on on 13 December 1993 it was adjourned until 31 January 1994. The matter came on in some confusion. The defendant sought to call Dr Baker and Dr Ganter to deal with a number of issues which were subsequently dealt with in aifidavits sworn by them. The plaintiff had very late notification of this and had no idea what was intended to be led from those doctors, no affidavit was produced and, indeed, it is not clear on what basis they could have sworn an affidavit at that stage in the proceedings. It seems to me that the reason for that adjournment was substantially brought about by the approach that the defendant sought to take. In those circumstances, it seems to me to be proper that the JUDGMENT 7 10 20 30 40 50 60 -- 7 of 8 -- 040294 (Demack J) defendant should pay the costs that the plaintiff has thrown away by that adjournment. The plaintiff had served its material following filing in November and it would have been simple enough for the defendant to indicate that it was not satisfied with having 10 the medical reports annexed to a solicitor's affidavit, but wanted direct evidence from the doctors. For the defendant to attempt to produce that evidence itself, rather than have it come through the plaintiff, seems to me to have introduced a 20 little confusion. c The orders will be: in respect of th~ application, order in terms of the draft with no order for costs. I order that there be no order for costs in respect of the adjournment on 30 22 November 1993. In respect of the adjournment on 13 December 1993, I order that the defendant pay the plaintiff's costs thrown away by that adjournment. (_/ 40 l/ 50 60 JUDGMENT 8 -- 8 of 8 --