Duncan v State of Queensland [2004] QDC 77

DISTRICT COURT OF QUEENSLAND CITATION: Duncan v State of Queensland [2004] QDC 077 PARTIES: ALMA DUNCAN Plaintiff v STATE OF QUEENSLAND Defendant FILE NO/S: 40/2001 DIVISION: Trial PROCEEDING: Civil ORIGINATING COURT: District Court, Ipswich DELIVERED ON: 21 April 2004 DELIVERED AT: Ipswich HEARING DATE: 22 August 2003 JUDGE: Richards DCJ ORDER: That the respondent pay the plaintiff damages in the sum of $3379.50 CATCHWORDS: Personal Injuries – back injury – minor COUNSEL: Mr P Feeley for the plaintiff Mr D A Reid for the defendant SOLICITORS: McInnes Wilson for the plaintiff Jensen McConaghy for the defendant [1] The plaintiff in this case is a 75 year old woman, having been born on 28 June 1928. On 12 August 1999 she had gone out for the day with her daughter. Upon returning to her daughter’s house she experienced significant abdominal pain due to pre- existing diverticulitis. The ambulance was called and she was placed on an ambulance trolley and transported to the Ipswich Hospital. [2] Upon arrival at the hospital she was taken out of the ambulance. As the ambulance officers began to wheel her into the hospital, the trolley upon which she was strapped collapsed at the front. The ambulance officers re-secured it and continued to take her into the hospital. At that stage she says she experienced back pain, -- 1 of 8 -- 2 however when the ambulance officers asked her if she was alright, she indicated that she was and thus no further investigation was undertaken at that time. [3] At the hospital she was treated for the abdominal pain, did not complain about back pain and was discharged the next day. [4] It is not disputed by the State of Queensland that a duty of care was owed to the plaintiff and that it is liable for any injuries caused as a result of the collapse of the trolley. [5] At the time of the accident the plaintiff was not in good health. She was suffering from diverticulitis, a hiatus hernia, diabetes mellitus, fluid around the heart and stress and was a regular visitor to Medihelp at the St Ives Shopping Centre at Goodna. She had been prescribed a number of different medications, namely Normison to sleep, Serapax to calm her, Panamax and Panadeine Forte for pain, Provochol for cholesterol, Zantac for acid in her stomach, Zestril for blood pressure, Nuelin for asthma, Lasix for fluid around the heart and Brufen for arthritis which she experienced in her left leg. [6] The plaintiff says that at the time that this incident occurred she felt sore across the lower back and then within a number of days she felt pain in her back. She gave evidence that one day soon after the incident when she was showering, her daughter noticed bruising to her back. She said she had never had back pain before this incident and that she also began to experience pain in her leg about 12 months after the incident. She went to the doctor on 15 August 1999 and 27 August 1999 but apparently made no complaint about her back. The first time her back was mentioned in medical notes was on 29 August 1999 when she saw Dr Mulvey. At that stage she complained about back pain and he found a bruise on the right lower posterior lateral lumbar area, three centimetres by three centimetres in size. He suggested conservative treatment and she was sent home. [7] There were a number of further visits to the doctor during which she did not complain of any further back pain. In fact, she visited the doctor on 5, 9, 15 and 27 September 1999, 6 October 1999, 3, 5 and 24 November 1999, 19 December 1999, 7 January, 4 February, 8 and 30 March, 12 and 31 May, 14 June 2000, all without -- 2 of 8 -- 3 complaints about any back or leg pain. On 27 June 2000 she visited the doctor complaining that she still had aches and pains in the back. There were further visits on 10 July 2000, 21 August 2000, 4, 8, 18,and 28 September 2000, 26 October 2000, 15, 16,22 and 29 December 2000. During these visits the plaintiff did not further complain of back pain. [8] Dr Mulvey, her general practitioner at this time, gave evidence that there was no change in her consumption of painkilling medication during the time that he saw her although the plaintiff suggested that it had increased significantly because of her injuries. Similarly although the plaintiff says the pain in her back has been constant since the incident, it is significant in my view that there was little complaint to the doctor about her back pain despite regular visits for various minor ailments. [9] At the time of the incident the plaintiff was staying with her daughter in Queensland. She gave evidence that her daughter normally did most of the work around the house, but that after the incident her daughter would help her with the ironing and would cook meals for her and that involved about one hour per day of domestic assistance. [10] She said that since the incident she has had to sleep on an electric blanket to alleviate her back pain. She also said that whilst she living in Newcastle she would normally do all the shopping, housework and cooking for her husband. She indicated that she had not been able to go out socially since December 2001. Whilst it was originally suggested that she was unable to contribute to the household from September 1999, she seemed to accept in cross-examination that she was able to do most domestic duties and to socialise until December 2001. She maintains that after this date her condition worsened and her husband has had to take over the domestic responsibilities since then much to his regret. [11] In her evidence the plaintiff said that she went home to Newcastle in September 1999 and that she was usually at home for 6-8 months a year. This cannot be correct when one has regard to the frequency of visits to the Medihelp centre. When pressed the plaintiff conceded that her trips to home involved shorter visits than she had originally indicated. -- 3 of 8 -- 4 [12] The plaintiff was examined by Dr Isaacs, orthopaedic surgeon, on 15 April 2002. On examination she told him that she had fallen off the trolley onto the ground, that the ambulance officers had picked her up and placed her back onto the trolley and that she had then been transported into the casualty room. She indicated that she had pain in her back which radiated intermittently into the left leg and that pain had persisted from 2 days after the incident. He concluded that she had a twisting and jarring injury to the lower back with radiating pain to her left leg and down to her left foot. He said that this represented a relatively severe impact and that her injuries were as a result of the trolley collapsing. [13] After an MRI scan was done, Dr Isaacs re-examined her on 30 August 2002 at which time he noted that an x-ray of the thoracic lumbar spine on 9 August 2002 showed mild degenerative changes but no evidence of post-traumatic fracture. He said that there was a whole person impairment of five percent that could be related to the injury. The plaintiff denied telling him she had fallen off the trolley but Dr Isaacs was quite clear on that information and he had taken contemporaneous notes. He said ( at T35): “In the absence of any prior pain you concluded that it was related to the incident on 12 August?-- That is correct, sir You would also have concluded that if the incident was sufficient to cause her to fall off a trolley?-- That is correct, sir. That it was a relatively severe impact?-- That is correct, sir. In fact if what happened was she was strapped onto the trolley and bear in mind it has – I don’t know how thick the mattresses would be, but four or five thick ambulance mattress – if what happened is the two front wheels collapsed but she stayed strapped to the trolley the whole time the incident would have been significantly less severe?-- That is correct.” Correspondingly one might think the risk of injury, particularly a twisting injury as you suggested, was less significant?-- That is correct, sir.” [14] There is evidence that the plaintiff had a pre-existing problem with her left leg. On 21st March 1999 she went to the doctor complaining that she had pains in her left calf. At that stage it was discovered that she had osteoarthritis from a previous fracture of the left ankle. An x-ray was taken of the ankle and it showed non-union of a fracture of a lateral malleolus with osteoarthritis and the possibilities of -- 4 of 8 -- 5 building up her heel and a brace were discussed. These problems could explain the pain in her calf. [15] On 3 February 1999 there were further complaints about pain in the left lower leg and on 5 November 1999 she saw Dr Greig regarding pain over her left ankle. Apparently, he concluded that it was osteoarthritis again and she was told to immobilise it with the support of a crepe bandage. [16] In cross-examination the plaintiff agreed that whilst the fracture to the ankle had occurred about 20 years ago, it started getting worse in 1999 and she began to experience shooting pains in her left leg. Prior to 1999 her ankle would swell up now and again but there had been no pain. She was asked where the pain was in her leg and she said up the back of her calf and her foot. She said the pain is more constant now than before the accident - the same region but more constant. [17] A matter of significant importance in this case is the credibility of the plaintiff and the reliability of the opinion of Dr Isaacs as to the cause of her current symptoms. Dr Watson, orthopaedic surgeon, gave evidence for the defendant indicating that in his view the plaintiff now has a degenerative spine condition which is unrelated to the incident she described and that her symptoms in relation to the trolley incident would have passed within a short period of time. [18] The plaintiff did not present as a reliable witness in this case. She gave evidence initially that she returned to Newcastle in September 1999 although it is clear from medical records, and she conceded as much in cross-examination, that she had been in Queensland for most of 1999 and 2000, returning to Newcastle only briefly. She initially said that the pain was constant from a few days after the accident and that she was unable to do anything much after the accident. In cross-examination that changed and she said that it was only after Christmas of 2001 that she began to experience significant difficulties in her daily life inhibiting her social outings and her domestic duties. She was a person who regularly visited her general practitioner for seemingly minor complaints, for example, she had a prickle and loss of some skin on her right thumb, yet she did not mention any problems with her back or pain in her left leg from first mention on 29 August 1999, until 27 June 2000. In fact she saw a doctor on 27 August 1999 and complained of a bruise on her buttocks but no -- 5 of 8 -- 6 pain to her back or legs. Moreover, in my opinion, she clearly exaggerated the incident and her symptoms to Dr Isaacs leaving him with a very different impression of the accident than was in fact the case. She also failed to inform Dr Isaacs of other possibly significant pre-existing injuries or pain, such as the pain in her calf. [19] As a result of the misinformation supplied to Dr Isaacs, his opinion was not based on a comprehensive or accurate set of facts. The plaintiff did not develop shooting pains in her left leg until about 12 months after the trolley collapse. She did not immediately develop problems with her back and more importantly, her description of the trolley collapsing and her falling off it suggests a much more significant injury than in a case of a trolley simply collapsing and her staying rigidly in place, held in by straps, while the trolley was lifted and locked back into position. [20] Because of the significant inconsistencies in the plaintiff’s evidence I am unable to rely on her evidence and where her account differs from the ambulance officers, Ogden and Nugent, I accept their evidence. I found both the officers to be open and honest witnesses with reasonable recall of the event. Similarly, I found the plaintiff’s husband to be unreliable in most aspects of his evidence, particularly in relation to dates. [21] Whilst one must feel sympathy for the plaintiff because she is now quite badly disabled by back and leg pain, it is impossible, given the quality of the plaintiff’s evidence, to find that the State of Queensland is responsible for the injuries from which she now suffers. The collapse of the trolley was fairly minor. I find that she did tell the ambulance officers that she did not feel any particular pain at the time and that there has not been any significant increase in medication as a result of this back pain. She did say that she saw a doctor in Newcastle regularly, however, there has been no evidence tendered of visits to the doctor in Newcastle and the doctor was not called as a witness in the plaintiff’s case. In my view, the injury sustained as a result of the collapse of the trolley was such that it is properly explained as a soft tissue injury which quickly resolved. I accept Dr Watson’s evidence that any further deterioration in her condition is as a result of constitutional pathology. -- 6 of 8 -- 7 [22] The plaintiff suffered a minor injury as a result of the partial collapse of the ambulance trolley on arrival at the Ipswich Hospital. She experienced pain to her back which did not emerge until a few days after the incident. She suffered pain for a short period of time and saw Doctor Mulvey about it on 29 August 1999. He recommended conservative treatment and the pain appears to have largely resolved. On 27 June 2000 she began to experience pain in her back again and she sought further treatment from her doctor. [23] I do not accept that this pain was a continuation of the pain experienced after the trolley incident. It defies commonsense that if the pain was continuous that there would have been no further complaint by the plaintiff for a period of 11 months. Although Dr Isaacs evidence was convincing as far as it went, his assessment was based on a completely incorrect history of the matter. In evidence in chief he was asked to assume that there was a sudden jerking collapse of some distance before she was jerked back up again. He indicated that a twisting and jarring injury could have occurred to her back at that stage, however, it is difficult to see how a twisting or jarring injury could have occurred when she was strapped onto the mattress by the ambulance officers. Furthermore the officers asked and the plaintiff indicated that she did not feel pain in her back as a result of the trolley collapse. [24] I do not accept that there is a causal link between the pain in the leg and the back pain the plaintiff experiences. The likely cause of the leg pain is a progression of the osteoarthritis from the ankle injury sustained a significant time before the collapse of the trolley. [25] The plaintiff is entitled to damages for pain and suffering however the award should reflect the fact that it is a minor injury which required a trip to the doctor and conservative treatment with analgesics. Whilst she would have experienced discomfort for a period of approximately one month, I find that whilst she was in Brisbane she did not make a significant contribution to the domestic duties in her daughter’s household and therefore in my view there is no basis for an award in relation to domestic assistance. [26] She is entitled to an award for pain and suffering in the sum of $3000. She is entitled to pre-trial interest at 2% per annum for 5 years, namely $300. Special -- 7 of 8 -- 8 damages are assessed in the sum of $63.50 being $21.50 for the visit to the doctor [payable to the Health Insurance Commission], $20 as an allowance for medication and $22.00 for travelling to the doctor. She is entitled to interest of 5% for 5 years on that amount namely $16.00 ORDER [27] The respondent pay the plaintiff damages as follows: Pain and suffering $3000.00 Interest $ 300.00 Special Damages $ 63.50 Interest $ 16.00 Total: $3379.50 I will hear submissions on costs. -- 8 of 8 --