Camilleri v Commissioner for Railways [1990] QSC 463

10 20 30 -10 50 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE KNEIPP TOWNSVILLE, 14 DECEMBER 1990 No. 373 of 1986 ·=.-----···- ---------, REVISED COPIES -ISSUED j Court Reportin2 Bureau I Oat:.:._? / }__!,~!_._wj (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: ALFRED JOHN MICHAEL CAMILLERI Plaintiff -and- THE COMMISSIONER FOR RAILWAYS Defendant JUDGMENT HIS HONOUR: The only direct evidence as to each of the incidents referred to in the statement of claim was that of the plaintiff. It was not specifically put to him that he did not sustain an accident on each of those occasions but he was closely cross-examined on his accounts; and it was submitted to me that I should not regard him as a reliable witness, that I should not accept the detail of his accounts of any of the incidents, and that in these circumstances I could not make any findings in his favour. The principal matters relied on were that his evidence in relation to the first accident was, it was submitted, inconsistent with the statement of claim and with answers to interrogatories; that he shifted ground in his account of that accident on the question whether or not he could have obtained assistance, particularly from the guard; that an account in a document of the second accident was not 10 20 30 40 50 consistent with his evidence; that he was unreliable concerning I the dates on which the accidents were alleged to have occurred, I --~60~--+ 60 Govt. Printer, Old. 1 -- 1 of 12 -- particularly having regard to the fact that he suggested that there was an interval of two years between the first accident and the second accident; and that he shifted ground in relation to the second accident on the subject whether the witness, Mr. Jaenke, had informed him that the signal was out of order. 10 In relation to the last matter, he said early in his evidence 10 that he definitely had oral and written information from Mr. Jaenke about the subject. Later on, in substance, he conceded that he had no recollection whether that was so, giving the reason that he could not think that he could have 20 got the information from anybody except Mr. Jaenke. 20 30 0 10 50 60 There was evidence from witnesses called for the defence directed to the probability or possibility that this that or the other part of the plaintiff's evidence might be relied on, but basically that evidence was directed to what should or might have happened and not what did happen. I think it is 30 clear that, as with many establishments, what in fact used to happen in relation to many matters was not what should have happened or what might have happened. plaintiff was a fairly simple type of man. I thought that the His comprehension was often poor and he was not always good in expression. Undoubtedly he had a tendency to speak from reconstruction I i lrather than recollection, in relation to what he would regard[ I ! as routine matters. But to me his accounts of the three incidents were completely persuasive when they were given, and having heard and considered the rest of the evidence and the submissions to which I have referred, I find that they remain so. In the result, I have no hesitation in accepting his evidence on essential facts, and I do so. It is convenient first to deal with matters which are Govt. Printer, Old. 2 40 50 60 -- 2 of 12 -- relevant to both the first and third accidents. I accept the evidence of Mr. McDonald as to the risks involved in lifting various types of objects, as to what are acceptable weights in that regard and as to the need for instruction and if necessary of supervision of employees in relation to those 10 matters. A properly informed employer at the relevant time, in 10 my opinion, should have known of those matters and should have taken appropriate steps by way of avoidance of the risks, so far as is practicable. I should mention that objection was taken to parts of the 20 contents of Mr. McDonald's report, and in particular to his references at pp. 4 and 7 to the results of research by others and to the opinions of others who are said to be expert in this field. Counsel referred me to the judgment of the Full Court of South Australia in Chicco v. The Corporation of the City of 20 30 Woodville (1989) Australian Torts Reports 81-028. In that 30 40 50 60 case, which involved the question whether certain equipment in a playground was unsafe, certain standards published by the Standards Association of Australia had been put in by consent or, if not by consent, without objection by the defendant, and apparently they were relied on by the trial judge. to the headnote it was held, among other things, that: According 40 "The trial judge erred in treating the standard as evidence. They were hearsay expressions of opinion." That part of the headnote does not in fact reflect the opinions of a majority of the court, and in any event, in my opinion, it is wrong. I can see no reason why parties cannot agree that hearsay expressions of opinion can be treated as evidence. This is constantly done, for instance, by the admission, by agreement or without objection, of Govt. Printer, Qld. 3 50 60 -- 3 of 12 -- medical reports. What was specifically relied on was a passage in the judgment of Millhouse J. at page 67897 in which he said that an expert who was actually called "was entitled to and did express his own opinion but he was not entitled, I suggest, to bolster during his evidence that opinion by relying 10 on the views of others contained in the publication". With 10 20 30 40 50 60 respect, I think the matter was properly put by the Chief Justice, although he did not express a final opinion about this matter, when he said: "It is permissible for an expert on safety to have recourse to such published standards, if he sees fit, as one of the sources from which he informs himself as to matters relating to the subject on which he is expert." Of course, it is clear that an expert may refer to the opinion of another expert and adopt it if he wishes to do so. He may also, according to authority, adopt and rely on results of 20 research by other persons, statistics or other matter. whether the results consist of 30 In the light of those considerations, I think that no criticism can be made of Mr. McDonald's use of other material, particularly, having regard to the evidence which he gave, reproduced at pp. 73 and 74 of the transcript, as to the use which he made of that material. i The plaintiff's work involved his being frequently I required to engage in manual loading and unloading of goods of all sorts and of different sizes and weights. To the properly informed employer it was plainly foreseeable that he might attempt or carry out unacceptable lifts. In those circumstances, in my opinion, the defendant should have had in place a set of specific instructions and advice and adequate supervision so as to ensure that the instructions and Govt. Printer. Old. 4 40 50 60 -- 4 of 12 -- 1' advice were carried out. So far as supervision is concerned, I am not suggesting that there should have been continuous actual surveillance, but of course supervision can be carried out 10 20 30 40 50 60 effectively in many ways. It is not in issue that the plaintiff was never given any instructions or advice on this subject and it is clear from his evidence that he himself had 10 no knowledge of the risks involved in attempting unacceptable lifts in the course of his work. In relation to each of the first and third incidents, I have already said that I accept the evidence of the plaintiff as to what happened and I need not repeat it. In each case, I accept the evidence of Mr. McDonald which bears on that incident. I find that in the first case the plaintiff sustained an injury to the lower spine, that in the second case he sustained an injury or an aggravation of a previous injury or injuries, and that in each case this was the result of the application of unacceptable stresses to his spine. I find that in each case the injury or aggravation was the result of the failure of the defendant to have in place a proper system in relation to lifting and that its failure amounted to negligence. The plaintiff gave other particulars of negligence in relation to those incidents. Some are subsumed by the finding on instructions and supervision, for instance, an allegation that assistance was not provided, and the remainder were not relied on. So far as the second incident is concerned, again I accept the evidence of the plaintiff as to what happened and I accept the evidence of Mr. McDonald bearing on that incident. The relevant considerations are not so simple as those relevant to Govt. Printer, Old. 5 20 30 40 50 60 -- 5 of 12 -- 10 20 30 40 so 60 the other two incidents. Towers of this particular design had been in use for many years, but it is not a defence if, in the passage of time, the design becomes inconsistent with developing concepts on the subject of safety in or at the workplace. The height to which the plaintiff had to climb was not inconsiderable. A fall could obviously result in very serious injury. The task was one which had to be carried out comparatively frequently. In those circumstances, I think that an informed employer should have assessed the situation in relation to the safety of employees who had to climb the tower. It should have realised the risks and should have put in place a suitably safe system. The plaintiff, on getting to the top, had to adopt a potentially unsafe situation with feet on a rung and holding himself in position by grasping attachments to the top of the tower. In order to descend safely he had to get in a position where he could hold the stiles of the ladder with both hands. His getting into that position, according to Mr. McDonald, involved a period where he was awkwardly placed and in a state of metastability. He would not recover from that situation immediately he was able to place a hand or hands on the stiles. There would be a further period before he achieved a positionr of stability. It was during that period, according to ,Mr. McDonald, that the plaintiff fell. The risks were added to I in this case, in my opinion, by the fact that the plaintiff was carrying a lantern in his hand (that in my view being plainly within the relevant category of the foreseeable). The lantern was not heavy and the handle was small in cross-section, but one does not need expert evidence for the proposition that for a man on a ladder to be carrying such an article would be an Govt. Printer, Qld. 6 10 20 30 40 50 60 -- 6 of 12 -- i , impediment to the full and free use of the hand in which it is carried. It is significant that it was the plaintiff's right hand, in which he was carrying the lantern, which lost its grip on the ladder. I think that it is more probable than not, and I find, that a cause of the plaintiff's losing his grip was 10 that he was carrying the lantern, although I do not think that 10 that finding is essential to his succeeding on this aspect of the case. 20 30 -lO so 60 I There were at least three things which the defendant could have done to minimise the risks involved in what the plaintiff was doing. The first was to give him instructions, with 20 particular emphasis on the risks involved in commencing a descent of the ladder. The plaintiff was never given any instructions on that subject. The second thing which could have been done was to give instructions that articles which had to be taken to the top of the tower or brought down from 30 !the top of the tower or should be raised or lowered by the use of a cord, which of course (and this was supported by Mr. McDonald) is a familiar procedure for persons taking objects up or down ladders. Third, there could have been extensions of the stiles so that the plaintiff before commencing his descent did not have to transfer his handhold from other objects to the stiles. So far as the last matter is concerned, I am satisfied that the construction safety regulations are not applicable but Mr. McDonald said that the desirability of having extended stiles on a ladder had been known for a considerable period, and I think that this should have been within the knowledge of an informed employer. In my view, the defendant was in breach of his duty,~o~n=j the plaintiff in not taking any of the steps suggested. In my Govt. Printer, Old. 7 40 50 60 -- 7 of 12 -- opinion, it is more probable than not, and I find, that had one or more of them been taken, the plaintiff would not have fallen. I therefore find for the plaintiff on the issues relating to the third incident. I should mention that Mr. McDonald in evidence referred 10 to recent research undertaken by him and others in relation to 10 the causes of falls by persons who are entering or leaving a means of access. However, al though he said that this comparatively recent research had explained the reasons for the risks, the fact that the risks were there had been known 20 for some considerable time. 20 30 40 50 60 So far as the allegations of contributory negligence in the defence are concerned, there was only one argued and this was that in relation to the first incident. It was argued that the plaintiff could have avoided any risk by simply moving the box or container over which he lifted or dragged the bag of vegetables. It seems to me that the reason why he did not move the box or container was that he did not realise that any risk was involved in what he did. In those circumstances, it seems to me that to find him guilty of contributory negligence would really be to place on him the onus of knowing and doing what his employer should have known and done. I therefore find against all of the allegations of contributory negligence in relation to each of the incidents. The plaintiff was born on 14 June 1944 and the accidents 30 40 50 occurred on 21 August 1983, 18 February 1984 and 22 May 1985. I I After leaving school the plaintiff went into employment with I the defendant and he continued in that employment until its termination on medical grounds, as a result of those accidents, on 1 October 1987. He became a station master in about 1972 I 60 ___________________________ ____J Govt. Printer. Qld. 8 -- 8 of 12 -- 1· and was a station master in charge of small stations in North I Queensland until the time of the accident. He intended to continue, and I am satisfied he would have continued, in employment as a station master by the defendant until the usual time for retirement, if his capacities continued until that 10 time. I am satisfied that as a result of each of the accidents, the plaintiff suffered an injury, or alternatively in relation to the second and third, aggravation of previous injury, to the lower spine. He has serious residual disabilities with 10 20 familiar consequences - constant back pain, pain in the legs 20 and inability to sit or stand with comfort for any length of 1 time. He is plainly unemployable and is not able to engage in any active recreation. He is capable of only a limited number of activities around his home. Surgery was undertaken in 1985 30 but it was obviously not successful and further surgery is not 30 50 60 1 indicated. He is impotent (he is married) and has bladder and bowel problems. There was a conflict of medical opinion as to whether those problems are wholly organic or partly organic and partly functional in origin. The conflict is at least in part due to the fact that although the experts or some of them were able to link the impotence to the spinal injuries, they felt it was difficult to link the bladder and bowel problems to the spinal injuries. For that reason, they tended to regard the plaintiff's problems as being at least partly functional. The only expert on that subject, Dr. Richards, a psychiatrist, robustly rejected that approach. He said in a report: "The criteria for diagnosing psychiatric disease - psychogenic pain, conversion symptoms or generalised anxiety disorder - are just as positive and specific as those for diagnosing physical disease. Psychiatric conditions may not be diagnosed just on Govt. Printer. Old. 9 40 50 60 -- 9 of 12 -- the negative grounds that internists and surgeons are unable to postulate an adequate physical explanation.In my view, there are valid reasons for concluding that Camilleri's problems are substantially organic and I can find no evidence of psychiatric disease." Dr. Richards' opinion derives support from the views of Dr. Watson, an expert in rehabilitative medicine. He said in a t 10 report dated 5 June 1989 that he had spent two years as 10 clinical director of the Prince Henry Hospital Spinal Injuries Unit "where study of bladder and sexual dysfunction was part of 20 30 ·10 50 my role in which the clinical correlation mentioned above was almost inevitably seen" ( the clinical correlation to which he was referring was a concurrence of bladder, bowel and sexual W problems). He goes on to say: "The sexual dysfunction is proven and unless your client had a knowledge of anatomy and physiology hewould not have been expected to confabulate urinary symptoms in association." I accept those opinions and find that the plaintiff's problems are basically organic. I have gone into this because it was submitted that the plaintiff had failed to take a chance to 1 mitigate his problems by refusing to continue a course of treatment with a pain clinic. According to the opinion of Dr. Richards, which I again accept, that treatment was likely to succeed only if the plaintiff's problems were functional, and of course, the argument fails having regard to my finding that the problems are basically organic. I turn to an assessment under the separate heads. In relation to this, the question was raised whether I should attempt separate assessments in relation to each of the accidents. I have considered whether I should attempt this 30 40 50 and I have concluded that any such attempt is likely to prove: unsatisfactory. The medical opinions are all directed to thel 60 situation of the plaintiff after all three accidents. I really 60 -------'--=---+ Govt. Printer, Qlcl. 10 -- 10 of 12 -- 'I 10 20 30 40 50 60 have no information on which to assess satisfactorily what might have been the plaintiff's position after the first or second accident, except that Dr. Watson said that he thought the main component in the present problems was the second accident and that the plaintiff without the third accident would probably have reached his present situation at some time. However, that is not sufficient, in my view, to enable me to attempt to make satisfactory separate assessments. I therefore propose to assess damages in relation to the situation produced by all three accidents. There were payments 10 i made by the Workers' Compensation Board amounting to $5,382 and 1 20 the Fox v. Wood component was $4,365. The plaintiff as a station master was entitled to rent-free occupation in a house provided by the defendant and this would have continued. He also received electricity at the expense of the defendant. For electricity, I assess the loss to the present as $2,668. For the future, I take 14 years purchase and allow $9,082. The total for electricity then is $11,750. On the same basis, for the value of loss of housing in the past, I allow $11,973, and for the future, $45,937, a total of $57,910. Medical expenses in the past I allow at $270, and for the future, $3,352, a, total of $3,622. For past loss of income, I allow $115,229. For future loss of income I allow $256,200. general damages. I allow $65,000 There was a claim for loss of the benefit of sick pay which was not pursued. There were some small claims for the cost of a posturepaedic bed, for the cost of a surgical belt, and for the cost of a type of chair which the plaintiff said ,was the only type of chair that he found to be comfortable I for any length of time. The objection was taken that there was Govt. Printer. Old. 11 i 30 40 50 60 -- 11 of 12 -- no medical evidence to support these claims, but the items are such that I think that one does not need medical evidence to support the proposition that the expenditures were reasonable for a man with the plaintiff's disabilities. I therefore allow them, the total being $858. So far as interest is concerned, 10 on $60,000 of the past loss of income, I allow $18,000, and on 10 $20,000 of the $65,000, taking into account the fact that thel plaintiff received a lump sum by way of workers' compensation 20 30 40 50 60 of $10,000 in May 1987, I allow $2,860. $20,860. The interest then is The items then are: Paid by the Workers' Compensation Board Fox v. Wood Loss of free electricity Loss of free housing Medical expenses Past loss of income Future loss of income General Special Interest The total I calculate to be $541,176. $5,382 $4,365 $11,750 $57,910 $3,622 $115,229 $256,200 $65,000 $858 $20,860 The Workers' Compensation Board has charges totalling $46,536. The balance is $494,640. I give j udgment for the plaintiff against the defendant for the sum of $494,640 with costs, including reserved costs, to be taxed. Govt. Printer, Qld. 12 20 30 40 50 60 -- 12 of 12 --