Belopotoszky v Commissioner for Railways [1993] QSC 71

Sc:...~/07f tate Reporting Bureau ------------------------------------------------------------------ TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crovm. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION THOMAS J No 173 of 1987 JOZSEF BELOPOTOSZKY Plaintiff and THE COMMISSIONER FOR RAILWAYS Defendant CAIRNS .. DATE 03/03/93 .. JUDGMENT JUDGMENT 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 8 -- 030393 HIS HONOUR: The plaintiff then a 45 year old man suffered pain to his stomach when helping to push a railway wagon on 3 December 1984. He already had a significant history of problems in the stomach area starting with a laparotomy/ appendectomy in 1977 which had been followed by infection, and 10 further surgical procedures occurring in January and April of 1978. On 14 August 1978 hospital records show that he had a fairly large incisional hernia. "He claimed that the lump had become bigger with straining and lifting heavy objects at work. The surgical opinion at the time was that the initial underlying weakness was due to the previous wound breaking down following appendectomy." The hernia was repaired and a sheet of Marlex mesh was inserted to close the defect in his abdomen. He resumed work and remained at work although incidents are recorded of workers compensation claims for stomach pain when lifting bins or when slipping on stairs. He commenced employment with Queensland Railways in 1982 and performed moderately strenuous work until the time of his accident on 3 December 1984. The history taken by the admitting doctor at Cairns Base Hospital on 4 December 1984 was that two weeks previously he had been pushing a motor vehicle and had fallen on his abdomen. The pain settled after a few days but in the four days prior to admission he had developed tenderness in the relevant abdominal area. This is very different from the event relied on in the present proceedings but there is a language problem and I shall act on the footing that some error was made in ta)-::i.l~'.: ::.lle history. The event, as described in C,...,, .. :...-. l.Jy the plaintiff, occurred at work. He was ~~~n~.ng a wagon with his shoulder against the JUDGMENT 2 20 30 40 50 60 -- 2 of 8 -- 030393 buffer. There was gravel underneath and at some stage he slipped. He felt pain in his stomach. He did not fall over. The pain was like a cramp and he doubled up. The event as described by him was not a particularly violent one. Further evidence was called from a Mr Logan. He also was 10 helping to push the wagon. He described it as involving a "fair effort" and that it was "fairly hard" to get it going. I take with some circumspection his opinion that this work was harder than lifting heavy weights. In the event I shall act 20 on the plaintiff's description of his activity on the day in question. Upon operation on 4 December 1984 the lump was explored. "A large abscess was found deep to the sheet of Marlex mesh previously inserted for repair of incisional 30 hernia. The abscess cavity was deroofed by removing the majority of the Marlex mesh and the wound has been left open. When the wound is clean and partly healed, the patient will require another surgical procedure for formal closure of his abdominal wall." The reporting doctor from the hospital, Dr Campbell, opined, "It is most likely a long standing infective problem which has 40 just now manifested itself clinically." The infection problem was overcome and the plaintiff returned to work in February 1985. Some problems continued and he was referred to Dr Knott who recommended further operation but thought it not feasible until the plaintiff reduced his weight by some 20 to 25 so kilograms. Eventually, the plaintiff having lost 15 kilograms h' }.~····:::i:"t1be.r: 1985, u.n operation was .L"::;rf:-.--:-:-.""'·i :::..::: ... er distension procedures were taken to allow the repairs to unite firmly. Infection 60 JUDGMENT 3 -- 3 of 8 -- 030393 was again sustained at a cathet~r site but this was successfully treated. There is mention of a "slight" motor vehicle accident on 25 November 1985 but this is not regarded as relevant. He returned to work on light duties in January 1986. In September of that year he suffered a recurrence of abdominal hernia resulting in a further hernial repair operation in October 1986. In February 1987 he suffered a further strain at work. Surgery was not undertaken for a variety of reasons. 10 20 In December 1987 Workers Compensation payments ceased and he was granted, at some stage, an invalid pension. The defendant admits negligence on its part in requiring the plaintiff and others to push the wagon on the day in question, but denies that this caused all the ensuing problems of the plaintiff from that time on. Causation of the damage complained of is in issue. I accept that at the material time the plaintiff was suffering from a dormant abscess and that the strain of pushing the wagon caused it to become symptomatic. It had reached the stage where it would become symptomatic as the result of moderate stress such as that to which it was subjected on the day in question. I reject the submission on behalf of the defendant which is based on one strand of reasoning that was advanced by Dr Knott in some of his reports. That opinion was to the effect that the consequences of the event should be attributed to two causes ___ :l tn·,;- t:""' pre-existing condition should be regarded~- vr: per cent responsibj_e u .. ~ ..• responsible for the ensuing history. JUDGMENT 4 30 40 50 60 -- 4 of 8 -- 030393 In my view, the correct analysis of the case is that the defendant must take the plaintiff as it finds him, that is to say, as a man with a dormant condition that was, at that stage, without apparent symptoms but such that it could be triggered by relatively moderate stress. The defendant is, therefore, responsible for the consequences of bringing the abscess to light. However, the defendant is entitled to reduce its damages by showing that the pre-existing condition was likely to have produced symptoms in due course in any event. The defendant is liable in the end only for the acceleration brought on by its wrongful act or for the extent to which the plaintiff's situation has been made worse than would probably have been the case in any event. The relevant principles and authorities are collected in Professor Luntz' Assessment of Damages for Personal Injury, 3rd Edition, paragraphs 2.2.1 and 2.2.5 to 2.2.8. JUDGMENT 5 10 20 30 40 so 60 -- 5 of 8 -- 030393 Mr McCreanor for the defendant submitted that the abscess which was brought to light by the accident was cured by the time the plaintiff returned to work in February 1985 and that the consequences of the defendant's negligence must be confined solely to that period. He further submitted that the remaining consequences should be attributed to the incisional hernias from which he suffered prior to the accident. I reject that the evidence can be separated out in this way. was only the symptoms of the abscess that made further operation necessary, and once this occurred the further complications and history all seem to flow on. I likewise reject the alternative submission that Dr Knott's 60/40 causation approach is appropriate. It Mr Sumner-Potts for the plaintiff submitted that the abscess was likely to have remained dormant for many years. He submitted that as it had been able to withstand relatively heavy work over a number of years the plaintiff would probably have remained symptom free for life. However, as it seems to me, by November 1984 it was vulnerable to less stress than may previously have been the case and it was indeed vulnerable to what has been described as moderate stress. Accordingly, those submissions are not supported by the evidence that I accept. I~ is true, as Dr Knott observed, that such abscesses can remain dormant for many years but this is not common. Given tne r:.ct tr_ ~ ··c: +-rauma that caused the symptoms to light up was not particularly VlU.Lc.. -~-. c.,.·.·""" rl;,P fac that was employed in a manual occupation requiring strenuous (,..,,_ - ,, i ~: -.- JUDGMENT 6 10 20 30 40 50 -- 6 of 8 -- I 030393 from time to time, it may be thought probable that it would have been triggered in the short term rather than the long term. Once triggered, the need for further operations and consequences similar to those that have in fact occurred would follow. It is impossible t.o pick a time with any pretence to accuracy but I must do the best I can. The main factor that guides me is the fact that these consequences were likely to occur from moderate stress. At one end of the spectrum he might have completed his whole \·wrking life without any such trauma. At the other end is the prospect that such trauma might have occurred the next day. I propose to assess damages on the premise that the dormant condition would probably have become symptomatic halfway through the remainder of his natural working life. I assume his working life would, in the ordinary course, have been to age 65, although the evidence is unsatisfactory on this point. He was 45 at the time of the accident. I shall therefore act on the basis that but for the accident, he probably would have probably been able to work up to age 55, that is to say for a further ten years. With respect to pain suffering and loss of amenities he has suffered considerable anguish at the loss of employment and self-esteem. He suffers a particularly unpleasant condition which is very disabling. The damages that I should award for this condition of course must be mitigated by the finding that a similar condition would have supervened in any event. In other words, the award is rarely for the acceleration of the condition by ten years. Notwithstanding that mitigation I JUDGMENT 7 10 20 30 40 50 60 -- 7 of 8 -- 030393 propose to award $45,000 under Lhis head. Past economic loss relates to a period of eight years and two months which have elapsed prior to trial. This is agreed at the sum of $100,000. Future economic Joss should be assessed for a further period of two years at a base rate of $367 per week. This comes to $37,323. The award may be summarised: damages for pain suffering and loss of amenities $45,000; damages for past economic loss $100,000; damages for future economic loss $37,323; Fox v. Wood $2,230.68; special damages $7,326; interest $20,600. Total $212,479.68. The interest is reached by an award of $15,000 on past economic loss and on $35,000 of the award for pain suffering and loss of amenities for eight years at 2 percent, namely $5,600. There must be deducted $37,720.34 already received from the Workers Compensation Board. There will be judgment for the plaintiff in the sum $174,759.34 with costs to be taxed. JUDGMENT 8 10 20 30 40 50 60 -- 8 of 8 --