Dighton v Commissioner of Railways [1991] QSC 273

,--·· -- ------·-~---1 i RE\/~SED CC>:°)~E.:") 102,!.JED i Cc-L:l ;::;,.:,;:,:;; '.;,:;:; C;:,c-;au . ! 1 IN THE SUPREME COURT OF UEENSLAND IDate q l_g I qr J 10 20 CIVIL JURISDICTION No. 193 of 1986 BEFORE MR. JUSTICE KNEIPP TOWNSVILLE, 6 SEPTEMBER 1991 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: KEITH RONALD DIGHTON -and- THE COMMISSIONER FOR RAILWAYS JUDGMENT Plaintiff Defendant .> c✓ '71 HIS HONOUR: So far as liability is concerned, the first matter which I should discuss is the reliability of the plaintiff as a witness. On the face of it this could be 30 40 50 60 subjected to considerable criticism. During the course of evidence he made statements which were inconsistent with previous statements of various documents, and he made ifferent statements about relevant matters at different imes during of the course of his evidence. However, the laintiff was taciturn in the extreme and it was very ifficult for him, I am satisfied, in recounting events, to a correct sequence of events or to co-ordinate of different events. I am satisfied that ~e was witness and that eventually he gave a correct ccount of relevant matters which I accept. I might say it seems to me that the precise details do matter. The essentials are that the plaintiff, in the course of Govt. Printer, Qld. 1 10 20 30 40 50 60 -- 1 of 11 -- ( 1 his work, was handling a kettle with potential dangers and somehow or other he burned himself with boiling water or ear boiling water which escaped from it, those being foreseeable events. However, I find that the actual course JO of events, so far as it needs to be recounted, was that he ad lifted the kettle from the ground and was about to carry it to where the members of the gang were to have lunch when 20 30 40 50 60 a ganger called to him asking him to bring with him the anger's lunchbox. At that time the plaintiff was stepping ver ,a discarded sleeper which was lying on the ground, with ne foot on either side. In order to obtain the box, he ommenced to turn back, which involved bringing the forward /foot back over the sleeper. He tripped and stumbled on the rsleeper, the consequent movements of his body causing ovements of the kettle, which resulted in the spill of oiling or near boil~ng water on to his leg. The onsequences were serious, no doubt because of the delay in is being given any appropriate treatment. There is not any doubt that it was foreseeable that a an carrying the kettle in the field might, because of some ishap, sustain an injury as the result of a spillage of f ater from the kettle. ·rt was foreseeable that such an njury might be significant. The only matter which was eally debated was whether a practicable precaution could ave been devised and should have been put in place. Mr. arter, the plaintiff's engineer, gave evidence, which I ccept, that-there is a simple and practicable remedy, and 'ndeed I think that one hardly needs expert evidence in rder to come to this conclusion. The remedy would be to ave a cap which could be placed over the spout of the Govt. Printer, Old. 2 1 Ci 30 40 50 60 -- 2 of 11 -- ( 10 20 30 40 kettle, its construction being the familiar construction of caps on kettles which can be seen in kitchens. The cap in those cases is usually put on a kettle for the purpose of the activation of a whistling device so that one knows when the kettle is boiling but of course it also serves the urpose of preventing spillage from the kettle until it is removed. Mr. Osbourne, the engineer who was called by the efendant, really, in my opinion, had no answer on this uest~on of practicability. His only suggestion was that since the kettle had to be taken out into the field, along jth other gear, there was a probability that the cap would become deformed or lost or the like. As to that, of course, ~ [ ne commonly sees stout looking caps fitted on a variety of ontainers of liquid, in some cases being fitted with a chain so that the cap does not become lost. I see no reason hy that sort of cap could not be devised in this case. In he result, I hold that in not adopting this simple recaution the defendant was negligent and that this egligence was a cause of the plaintiff's injuries. Another matter which was debated was the provision of a andle above the kettle rather than handles qt the sides. fit was carried by a handle of the former type it is the risk of tilting and spillage would be much less. would conclude that such a handle could be devised without 10 20 30 40 50 50 ny great ingenuity. I need not go further into that atter, however, having regard to my conclusion as to the rovision of a cap. There were allegations of contributory negligence but not pursued, and I find -against them. 60 60 Govt. Printer, Qld. 3 -- 3 of 11 -- ( The plainti£f was born on 17 March 1956 and he was injured on 12 February 1985. He left school after Year 10 and thereafter he engaged in a variety of unskilled occupations, a number of them with the defendant in various capacities. At the time of the accident he was in a 10 1 ermanent position being a member of a flying gang based at ughenden. He said that he intended to continue in this 20 30 40 50 60 ~ ork, and I have no reason for not accepting that statement. The history of the matter since the time of the relev~nt accident is conveniently set out in two reports by r. Gavin Douglas, an orthopaedic surgeon. ated 18 March 1986 he says that: In a report "He told me that on 12th February, 1985 he had suffered a burn on the inner side of the left leg with some boiling water spilt for a billy. He said this burn became infected and he said it was very painful and his leg was swollen for a period of time. He said because the burn was on theinner side of the leg just above the ankle he had to walk with his foot twisted in because if he walked with his foot in a normal position it would pull on the burn and cause it to split. He said the burn took about four months to heal and when healing had occurred he then found that he couldnot place his foot flat on the ground. He stated that he went back to work on 28th July, 1985 but he was still walking with his foot twisted in, bearing weight on the outer side of his foot. He said that he experienced increasing pain in the ankle because of this abnormal gait and eventually he had to stop work. He alsb gave a history of osteo-myelitis of the left heel when he was six years of age. He stated that he was in bed for nine months with this condition and had two operations of the heel. He stated that following recovery from this disease he had no problems with his· left foot or left ankle and prior to the burn in February, 1985 he was able to do a full day's work without any discomfort in the left ankle. On examination the left heel was fixed in full inversion so that he walked on the lateral border of the foot with the medial part of the forefootoff the ground. There were scars. on both medial and lateral aspects of the left heel. There was Govt. Printer, Old. 4 30 50 . 60 -- 4 of 11 -- 10 20 30 40 50 60 marked tenderness over the left sinus tarsi with swelling around this area. I could not passively evert the heel from the inverted position. His ankle was also stiff in a neutral position as far as dorsi flexion and plantar flexion wereconcerned and he resisted any passive movement of the ankle as he said that it hurt. He brought with him x-rays which had been taken in Brisbane on 1st November, 1985 and these showed there were fairly advanced osteo-arthritic changes in the sub-taloid joint. The ankle joint wasnormal . • I thought his disability was due to the osteo-arthritis of the sub-taloid joint. I found it hard to accept his statement that he had no troubl~ in the region of the left ankle or footprior to the burn in February, 1985 as he would have had well established osteo-arthritic changes in the sub-taloid joint at that time. I thought that the burn and his subsequent gait could have been responsible for the pain and deformed position of the heel. I recommended manipulation of the sub-taloid joint under a general anaesthetic with the injection of a long acting steroid. This was carried out at the Townsville General Hospital on 19th December, 1985 and following the manipulation the ankle was immobilised in plaster. The plaster was removed on 17th January, 1986. There was a little improvement in the deformity of the left heel but the sub-taloid joint was still painful and tender. I advised that he should have the sub-taloid joint arthrodesed and referred him to Dr. R. Gibberd for this operation which was carried out on 6th February, 1986." The history is continued in a second report dated 8 August 1991 in the following terms: "The details of his injury and treatment up to 1986 are recorded in my earlier reports. Following the sub-taloid arthrodesis in February, 1986 he returned to his former occupation as q fettler in June, 1986. He worked for about six months with some discomfort· and he then started to notice recurring pain in the lateral aspect of the left ankle. Sural nerve neurectomy was carried out on the 5th March, 1987 and he. states that following this he lost his pain. He then worked for another _six months and again started to notice some pain across the front of the ankle with some twisting in of the ankle. The staple used in the arthrodesis operation was removed in February, 1988 and his foot: was manipul.ated. and immobilised Govt. Printer, Old. 5 10 20 30 40 50 60 -- 5 of 11 -- ( 10 20 30 40 50 60 in plaster ~or a time. This did not bring about any relief. It is noted at this time by Dr. Gibberd that the ankle was swollen and synovialfluid was asperated. He saw Dr. Blue in July, 1988 and x-rays at that time showed the sub-taloid fusion was sound in a position of inversion and also that there werewell established osteoarthritic changes in the left ankle joint. I have reviewed the only x-rays I still have taken on the 9th December, 1986. On this date the ankle joint appeared radiologically normal so that theosteoarthritis of the left ankle had developed in the intervening years. I would think the dev€lopment of such a condition would be secondary to the fused sub-taloid joint. He subsequently had attempted correction of the inversion deformity of the heel which was only partially successful and the pain persisted. An arthrodesis of the left ankle was carried out on the 15th June, 1989. He told me at the time of the recent visit that since this operation he has lost 90% of the pain of the ankle. He told me that he had returned to work early in 1990, initially as a painter's labourer. He said he found difficulty being on his feet all day and particular difficulty and discomfort when he was climbing ladders. In the past twelve months hehas been working as a taxi-driver. He said he has no trouble driving an automatic car but is unable to drive a manual car because he has great difficulty using the clutch because of the loss of flexibility in the left ankle. He said if he has to carry luggage or carry groceries or put packages in the boot of his car he notices some discomfort in the ankle. He finds difficulty in walking on uneven ground or walking up and down inclines. He is unable to squat or run. He has to bend his back fully if he picks up ·a load from the ground as he cannot squat. He does not have any backache. He finds difficulty in carrying loads. He stated that before he burnt his leg in 1985 he was able to work in heavy labouring jobs and had no discomfort in the region of the left ankle. On examination, he stood with the left heelinverted about 5 degrees with slight fore-foot version. There was clawing of the lateral four toe~. He said this clawing caused him some discomfort when he was wearing shoes. The ankle was in neutral position, the left leg was one quarter of an inch shorter. The arthrodesis of the left ankle and the left Govt. Printer, Qld. 6 30 40' 50 -- 6 of 11 -- ( 10 20 30 40 50 60 sub-taloid joint were clinically solid. There was a little mid-tarsal joint movement and this appeared to be painless. Theie was generalised wasting of the left leg. There was loss of sural nerve sensation but the sensation of the leg was otherwise normal. He walked with a marked limp. I did not view any·recent x-rays. This man now has fused sub-taloid and fused left ankle joint secondary to a burn injury in 1985. Prior to this injury he had suffered from osteomyelitis of the left heel and at the time of the injury x-rays showed osteoarthritic changes in the sub~taloid joint which were presumably secondary to the earlier osteomyelitis. He states that prior to the injury he had no pain in the region of the left ankle and this could be consistent with the presenc~ of osteoarthritis of ~he sub-taloid joint. I think that ~f the injury had not occ~rred in 1985 that at some time in the future he would have developed pain caused by the osteoarthritis of the sub-taloid joint and that a future sub-taloid arthrodesis would be necessary. Dr. Blue has estimated that the surgery has had to be carried out 10-15 years earlier than would have been required had that accident and I would not be inclined to the view that it would be 15 years rather than 10 years before such treatment was required. I do.not think any further treatment of his ankle is indicated and I consider the disability he now has is permanent. I would agree with Dr. Blue's assessment that he has a 45% permanent loss of function of the left leg." I accept the opinions expressed by Dr. Douglas in those eports. These include the view that because of a ongenital· problem the plaintiff would have required a usion of the same sub-taloid joint in about 10 years from ow. This, of course, would mean that the plaintiff, in hat foot, would have in any event lost the movements of version and inversion. I take•it that this would mean that e would not have been fit for heavy work, at any rate any hat involved his being on uneven ground, but that he·would ave been suitable for many other tasks. The present situation is that he has had fusions both Govt. Printer, Old. 7 10 20 30 40 50 60 -- 7 of 11 -- ( 10 20 30 40 50 60 f the sub-taloid joint and of the ankle joint so that he as lost not only the movements of eversion and inversion ut also the movements of flexion and extension. The loss f the latter movements are, of course, much more serious han the loss of the former, and the combination of losses fall the movements is even more serious. Dr. Douglas was asked whether, if the plaintiff had in fact required a fusion of the sub-taloid joint, leaving side the subject accident, this would also have led on to a the angle joint. Dr. Douglas said that this was ot necessarily so. He said that the second fusion in the resent case was probably caused by extra stress thrown on he foot from the first fusion, the first fusion having been "not quite square." I accept that opinion. I think that I do not have anything specific from any f the doctors as to.the plaintiff's present capacity for ork, but his situation would be fairly obvious, and it is ealt with in his statement. He continued with the railways s a fettler until March 1990 when he resigned because he elt that he could not continue to do the work. I accept hat proposition. After leaving the railways the plaintiff btained casual employment with a painting contractor. owever, he had extreme difficulty in carrying out that ork, particularly.in climbing up and down ladders and orking on his feet for the whole of the day. He says in is statement that he came to the view he was not suited to ny type of manual labouring work which required walking, tanding, climbing or carrying. As a result of that he urchased a taxi business in Hughenden. Despite the fact hat he operates the only taxi business in Hughenden, such Govt. Prinler, Qld. 8 30 40 50 60 -- 8 of 11 -- ( 10 20 30 40 50 60 xamination as I can make of the material which I have shows hat in this occupation he is not even making wages after ne allows for overheads and any sort of return on his apital investment. Apparently he depends to a large extent n workers on stations, particularly shearers, and of course aving regard to the ups and downs of any rural industry here are periods when there is very little offering from hose quarters. There was some discussion as to whether the plaintiff, athe~ than leaving the railways, could have obtained light ork in that employment. The plaintiff never made any this direction. I had some inconclusive 1 vidence from a union official as to whether there was any olicy of assisting disabled employees to find suitable work ith the department. The fact is that the plaintiff could ot do the job he wa~ employed to do. He was never offered ny other employment. I think that the burden of proof in elation to this, since it is a matter of mitigation, is on he defendant, and the burden has not been made out. In hese cj_rcumstances I assess damages on the basis that there as not suitable work available for the plaintiff with the ailw·ays. The difficulties of a person with the plaintiff's isabilities in seeking work in Hughenden are obvious The situation in that town is sufficiently eflected in the fact that it cannot even support one taxi Taking into account contingencies related to the laintiff's congenital condition,. the other ordinary ontingencies and to the plaintiff's capacity to earn an ·ncome in a variety of fields, although he is very much Govt. Printer, Old. 9 10 20 30 40 50 60 -- 9 of 11 -- C 10 20 30 estricted, I- allow for past loss of wages $5,000 and future osses $150,000. I do not propose to award interest, I should 'nterpolate here, on any of the amounts which I allow ecause of substantial payments received by the plaintiff nd the lapse of time; six and a half years since the ccurrence of his accident. Specialdamages, including the Fox v. Wood component, ere agreed at $15,229. There was an excess of expenditure ver receipts so far as Medicare is concerned of $505, and his is allowed. There is a claim by medical benefits for 5,208 which is allowed. I fix general damages at the sum of $40,000. I think the only other claim was for a sum of $2,000 which was of a number of trips by bus by the plaintiff to risbane for the seeking and obtaining of medical advice lsewhere than in Townsville. It was submitted that this ras not a reasonable expense. In my view it was reasonable ~or the plaintiff to go to Brisbane and seek other advice. ~ ither rightly or wrongly he was not satisfied with the 40 dvice he had been given by a number of specialists in 50 60 , ownsVille, and, having gone to Brisbane, he in fact nderwent further surgery which apparently was not ecommended in Townsville. Whether that was successful or ot is not the point. The point is whether the expenditure as reasonable on the part of the plaintiff. I think that 't was and I allow it. I calculate the total of the amounts which I have entioned as being $267,942. The charge of the Workers' ompensation Board is $64,047 and the balance is $203,895. Govt. Printer, Old. 10 30 40 50 60 -- 10 of 11 -- (") 10 20 30 40 50 60 I give judgment for the plaintiff against the defendant for the sum of $203,895 with costs to be taxed. Govt. Printer, Qld. 11 10 20 30 40 50 60 -- 11 of 11 --