Dilger v Commissioner for Railways [1991] QSC 8

' 0 -&o \.tj 1 10 30 40 50 60 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE DEMACK ROCKHAMPTON, 29 JANUARY 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: THOMAS CLIVE DILGER -and- THE COMMISSIONER FOR RAILWAYS JUDGMENT Plaintiff Defendant HIS HONOUR: In this action I have reduced my reasons to writing, which I now publish. There will be judgment for the plaintiff against the defendant for $219,782.12, together with costs to be taxed. -Govt. Printer, Old, 1 10 20 30 40 50 60 -- 1 of 12 -- IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON BETWEEN: THOMAS CLIVE DILGER AND: No. 51 of 1985. Plaintiff THE COMMISSIONER FOR RAILWAYS Defendant JUDGMENT - DEMACK J. DELIVERED the Twenty-ninth day of January 1991 . CATCHWORDS: Negligence - Master-Servant - Liability - Failure to provide· a safe place of work Damages Personal Injuries - injury to lumbo-sacral disc bridge painter, aged 22 COUNSEL: Mr JONES QC. with him Mr McMEEKIN Mr. GIBSON QC. with him Mr TAIT for Plaintiff for Defendant SOLICITORS: MESSRS VAJ BYRNE & CO. for Plaintiff HEARING DATES: R.P. SAMMON CROWN SOLICITOR for Defendant 11th, 12th and 13th December, 1990. Male -- 2 of 12 -- IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON No. 51 of 1985. BETWEEN: AND: THOMAS CLIVE DILGER Plaintiff THE COMMISSIONER FOR RAILWAYS Defendant JUDGMENT DEMACK J. DELIVERED the Twenty-ninth day of January 1991 . Mr Dilger was born on 30th September 1960. He commenced employment with the defendant on 24th November 1975. On 30th September 1979 he was appointed as a bridge painter. He alleges that on 17th June 1982 he injured his back in the course of his employment. The issue of liability and the issue of the amount of damages were both contested. Mr Dilger's verbal I.Q. is 78 in the borderline mentally retarded range, (ex. 26). This meant that his description of the circumstances in which he suffered his injury was not at all clear. An example of this is found in the following passage; "Can you describe what the surface was like with that gravel on it, or that ballast on it? -- Was very slippery and the ground was hard, but it was very slippery to stand on it. When you say the ground was hard, ground underneath the ballast? underneath the ballast was hard and was slippery to walk on. you mean the The ground the ballast BY HIS HONOUR: What do you mean by slippery? -- 3 of 12 -- 2 Like, if we stand on a very smooth concrete that's got water on it, that's slippery, your foot may slip across the surface? What was it like on this bank? -- The bank was on a slope - the ballast was on the slope, and slippery under footing whilestanding on the stones on this curved bank. What, your feet would slip down the stones and the stones stay in place, would they? No, they would go with your shoes." This seems to me to be a potentially ambiguous use of "slippery" but in the end the meaning is clear enough. This also meant that the account which he gave to various witnesses was not always noted by them or remembered by them in a way that is consistent with his evidence in court. However, he gave me the impression that he was making an honest attempt to describe an incident which happened over eight years ago and which has had serious consequences for him. On 17th June 1982, Mr Dilger was working with a bridge painting gang on one of the Waverly Plain bridges. The bridge crossed a low lying section of the plain. There was an embankment at the approaches to each end of the bridge. The embankment fell away under the end of the bridge, giving it an appearance similar to a creek bank. Some of the ballast from the line covered part of this embankment. The relevant part of this bridge consisted of two metal girders which ran the length of the bridge. These were held in place by metal cross members called diaphragms. The task Mr Dilger had was to clean off the rust and old paint from the metal surface. To carry out his task, he was provided with an air chisel weighing ten pounds, earmuffs, gloves, breathing -- 4 of 12 -- 3 apparatus, and goggles as well as industrial boots and clothing. At the relevant time Mr Dilger was working on the slope or bank under the bridge. He was not able to stand erect but worked in a squatting position, ( p. 1 7) . In his evidence in chief he described the incident, as follows, (p. 19) :- "Just tell the Court what happened when the accident occurred?-- I was working on the eastern side on the inside of the first span. I was using my chisel going to chisel off rust and old paint, and I made a shift to the left; I spotted more rust there, and as I shifted my left foot slipped down the bank but in a forward position as I was standing. As I slipped I lost my footing. I tried to grab on to a transom above my head so I could get a hold on it. I dropped my needle gunand then my back came into contact with the span going across - the diaphragm - and my head came in contact with the transom above. I dropped to my feet, heavy on the left-hand side, and then after a few moments I gathered myself and I gathered my tools and I went up to the box and put my tools away. You said you dropped on to your left-hand side?-- Yes. About how far did you fall?-- Approximately, say, two foot. Two feet below your former footage or two feet altogether-- Well, the same level as my footing, but was on the slope, so I dropped on to the ground there." Although that description was challenged, I am satisfied that it is an honest account of the event. It seems to me to be a probable account, and it was well tested in cross-examination. It seemed to me that much of the difficulty that Mr Dilger had in expressing himself arose out of his limited I.Q., and did not suggest that he was making up his story. The substance of the account is the same as that in the Accident Report of 5th July 1982, (ex. -- 5 of 12 -- 4 37). I accept that account of how Mr Dilger sustained his injury. Does this show that the defendant was in breach of its duty to him? Clearly enough the place where Mr Dilger was working was very confined, and there was no way of altering that, given the nature of that plain where the railway line was constructed. However, Mr Dilger was not simply working in a confined space. His sight and hearing were both properly protected, and this greatly reduced his capacity to see and hear things around him. Also, the use of the air chisel required intense and close concentration on any rust spots on the girders, (p. 18). Thus, both the nature of the task, and the necessary protective gear, greatly reduced Mr Dilger's capacity to take care exactly where he placed his feet while working and moving about. Add to these things, the fact that he was working on a slope on which there were loose stones and it becomes clear that there was a foreseeable risk that he would slip and strike some part of the girder or the diaphragm. What could be done to reduce the risk of injury? Mr King, an engineer, has suggested that cross pieces of timber should have been pegged across the ballast to provide an adequate foothold, (ex. 19). I accept this opinion, and generally I accept Mr King's evidence. I am satisfied that the defendant failed to provide a safe place of work for the plaintiff and that, as a result of this failure, the plaintiff suffered injuries. Contributory negligence was pleaded, but it seems to me that, in view of the matters I have mentioned, it cannot be -- 6 of 12 -- 5 said that Mr Dilger failed to take reasonable care for his own safety. His sight was restricted by the goggles and breathing apparatus, his attention was concentrated on his task and he was working in a cramped position within a confined space. He could do no more to take care for his own safety. Mr Dilger said ( p. 19) that after he struck the diaphragm and fell to the ground, he experienced a lot of pain and discomfort in the right hand side of his lower back. There is conflict in the evidence about whether he told his supervisor, Mr Milner. In the light of exhibits 37 and 38 I am satisfied that he did not mention anything on Thursday 17th June 1982. The gang returned to St. Lawrence soon after the incident. On Friday 18th June 1982 I am satisfied that he passed the day with little physical effort, although he apparently was active enough to earn a day's pay. I do not find anything surprising about that. On Friday afternoon he travelled to his sister's place at Mackay. By that time he was in considerable pain, and was not himself, (p. 128). First thing on Monday morning an appointment was made for him to see Dr Jacobs (p. 91). After seeing Dr Jacobs he was referred to a physiotherapist Mr Stellar. In his address Mr Gibson Q.C. placed great reliance upon the evidence of Mr Stellar and Dr Jacobs. Particularly he relied on the fact that neither had recorded any complaint by Mr Dilger that he had injured himself the previous week. There are serious difficulties in this, because the notes are in sharp disagreement on a basic issue. Neither Mr Stellar nor Dr Jacobs has any independent -- 7 of 12 -- 6 memory of the matter. Mr Stellar says that he noted a loss of lordosis, which indicated that Mr Dilger had a significant postural problem. He drew a diagram to explain this. any loss of lordosis. Dr Jacobs did not note As the complaint was remarkable that such an differently by two trained low back pain it would seem essential matter was noted so observers. This suggests that the notes are not wholly reliable. Both men recorded that Mr Dilger said he had experienced back pain eighteen months being for four years worse. Mr on and off, the last Dilger denies this, although it is clear from Dr Robert Cook's evidence that he had a degenerate spine. It seems to me that the significant matter here is that up until 18th June 1982 Mr Dilger was able to work as a bridge painter. Since that date he has not worked except upon 5th and 6th July 1982. In August 1983 he underwent a discetomy and in April 1984 a revision laminectomy. Another significant matter was noted by Mr Salzman and commented on by Dr Mulholland at p. 122. Mr Salzman found some measure of impaired brain functioning which explain difficulties with dates. I did not see or hear anything in the evidence of Mr Stellar and Dr Jacobs that altered my impression that Mr Dilger was endeavouring to give an honest account of his problems with his back, before and after 17th June 1982. Mr Dilger has seen a number of doctors in respect of his physical injuries, but the one who impressed me most was -- 8 of 12 -- 7 Dr Robert Cooke, who performed the two operations on his back. He gave his evidence with clarity and with precision. His explanations of the mechanics of the injury were full and convincing. I accept his evidence and generally his opinions. It seemed to me that his testimony was more positive than his written opinions and I prefer this testimony. On the basis of that evidence, I am satisfied that the events on 17th June 1982 resulted in a right posterial lateral disc prolapse of the lumbo-sacral disc (p. 107). When the discetomy was performed all the sequestrated material was not removed, and a second operation was needed. There is residual instability in the joint, the effects of which can be removed by a bone graft. A good fusion will allow him to return to bridge painting (p. 120). Mr Dilger has had periods of depression but has largely overcome that. In the light of his age when he sustained such a significant injury and of the fact that two operations left him with a painful back, this is only to be expected. It seems to me that there is every reason to expect that the fusion operation will be successful and that after that he will be able to return to work. Any remaining discomfort following three operations should be within the limits of his tolerance. Two significant matters which are not adequately explained in the evidence are the impairment of brain function I have mentioned and headache. There is no clear link between the former condition and the injury and its surgical sequelae. Neither is there any satisfactory -- 9 of 12 -- 8 evidence to connect headaches with his injury or with the medical procedures that followed it. From all the medical evidence I am satisfied that in the incident Mr Dilger suffered an injury to his lumbo- sacral disc which necessitated two operations and which still requires a further operation to fuse that part of the spine. I am satisfied that following that surgery he can return to bridge painting. According to Mr Salzman's testing he has the reading age of a child of eight years and six months, so there is very little scope for retraining. I am satisfied that Mr Dilger had pre existing degeneration in his lumbo-sacral disc. He was engaged in work that produced considerable daily stress on his back. Dr Cooke described this at p. 106. Consequently, it seems to me he would have had serious difficulties with his back by the time he turned forty-five. This is not greatly significant in this case, because I am assessing damages on the basis that he can return to his pre-accident employment after further surgery. So far as economic loss is concerned, exhibit 54 shows that from 17th January 1982 to the date of trial, the nett earnings of a bridge painter would have been $149,844.64. If the two days which Mr Dilger worked in July 1982 are deducted, his nett loss of wages would be of the order of $149,750. However, there is a question whether he should have sought treatment by way of fusion earlier than this. In his report of 25th June 1990 (ex. 22), Dr Cooke records that in September 1988 Mr Dilger was "relatively fit", and this suggests that he was fit for surgery. However, Dr -- 10 of 12 -- 9 Cooke's report referring to fusion was not given until June 1990. The earlier reports of Dr McClymont (31st October 1984, ex. 24) and Dr Maguire (4th June 1987, ex. 30) did not suggest fusion. Consequently, it is, in my opinion, proper to allow the full loss of wages to the date of trial. Over such a long period it is possible he may have lost some time from work so I shall allow $148,000 for past economic loss. I shall allow interest on $66,500. I fix interest at $33,500. For the future I shall allow the sum of $20,000 for loss of economic capacity. In the six months from 1st April 1990 to 30th September 1990 the nett earnings of a bridge carpenter in exhibit 54 amounted to approximately $10,000. The time lost from work because of the fusion will be six months. It seems to me that some additional amount must be allowed for obtaining work and possible re-training. There is a claim for services gratuitously rendered. In exhibit 58 this is itemised as a claim for 475 hours. I am satisfied that Mr Dilger has needed help at surgery and that this help was of a kind ordinarily rendered in a domestic setting. I $2375, $5 being the agreed hourly rate. home after beyond that shall allow Special damages as agreed are set out in exhibit 55. The total amount is $19,087.21, which I shall allow in full. The costs associated with the spinal fusion amount to $14,500 (ex. 22). There is a chance that psychiatric treatment for depression may be needed. I do not think that is a significant needed. For chance. all future Some medication for pain surgical, medical and may be chemist -- 11 of 12 -- ; 10 expenses I allow $15,000. In respect of pain, suffering and loss of amenities, I have referred to many of the relevant matters. Mr Dilger has suffered back pain in varying degrees over eight and a half years. of these he threatening, relationship He has had two operations. Associated with one suffered a pulmonary embolism. This was life but has left no residual problems. A he had with a young woman was broken off in part because of his loss of interest in sex. He has since married, and that relationship is satisfactory. Prior to the accident he went pig hunting regularly and was fond of the bush. He now plays darts. His damages under this head are effectively for nine and a half years of varying pain and discomfort in his back, and for three surgical procedures. I assess pain suffering and loss of amenities at $27,500, and allow interest on $22,000. I fix interest at $11,000. The total of the award is $275,962.21. After deducting the refund due to the Workers' Compensation.Board there will be judgment for the plaintiff against the defendant for $219,782.12 together with costs to be taxed. -- 12 of 12 --