Green v Mitchell
[1999] QDC 101
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- Unreported Judgment
- Green v Mitchell[1999] QDC 101
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Green v Mitchell[1999] QDC 101
Green v Mitchell[1999] QDC 101
DISTRICT COURT | No 11 of 1994 |
CIVIL JURISDICTION
JUDGE PRATT QC
ROBIN HERROD GREEN | Plaintiff |
and
ALLAN MITCHELL | First Defendant |
and
IAN BERRY | Second Defendant |
BRISBANE
DATE 07/04/99
JUDGMENT
HIS HONOUR: The plaintiff, born on 27 May 1950, had been in the employ of Queensland Rail since 1972. For some eight years he had been working as a porter and then qualified as a driver of trains. Until 1988 he was a normal, happy family man, who cared for and about his wife and three children.
He was very active about the home. He often took his family on outings and enjoyed caring for them. After 1989 the plaintiff was a very disturbed man and remains to so this day. Since 1989 Mr Green has been suffering from a post traumatic stress disorder which has caused him to drop out almost completely from his former active, caring and providing role as husband and father.
Mr Green attributed his disorder to two incidents which occurred while he was driving trains. One, in June 1988 where he believed the train which he had been driving had run over a motorcyclist, and the other in January 1989 when the brakes on the train he had been driving appeared to him suddenly to fail, causing his train to overshoot the platform at the Windsor station by three carriage lengths.
These were referred to at trial as the Kingston and Windsor incidents. The effect of these incidents on Mr Green was such that he consulted the defendants with a view to bringing an action for damages against his employer, Queensland Rail, the defendants being solicitors practicing as such in this State.
It was conceded at trial that owing to the negligence of the defendant Berry, no proceedings were commenced against Queensland Rail within the statutory period, so that Mr Green is said to have lost the chance of success in an action against Queensland Rail.
The parties are agreed that the notional litigation date should be taken as June 1994. It is in consequence necessary to consider what another Court, sitting in June 1994, and trying a duly constituted action by Mr Green against Queensland Rail, would probably have done in assessing a claim for damages for psychological illness said to have been sustained by the negligence of Queensland Rail.
There was no suggestion that in a trial of those issues in June 1994 the approach which would have been taken in assessing liability and damages would have been any different from that which would be taken if that action were tried at the present time.
Another matter which has to be borne in mind is that the cause of action which would have been brought by Mr Green against Queensland Rail in June 1994 was one of negligence, that is to say negligently causing psychological or psychiatric illness, as distinct from personal injury.
The psychiatric evidence in this case required careful consideration, because without exception the opinions which were expressed were based partly on erroneous facts relayed to the psychiatrist by Mr Green.
Mr Green's memory after 1989 was poor. His thoughts were jumbled and there were instances of error and exaggeration. Naturally, much was made of this at trial, but on the whole it did not change my view that Mr Green was an honest witness doing his best to answer questions truthfully and accurately. Nor does it change my view that despite some misinformation, by and large most of the psychiatric evidence was reliable particularly as to the illness that Mr Green was found to be suffering after 1989.
This is certainly the case in respect of the evidence of Dr Troup who has been treating Mr Green now for nine years. In such cases as this, considerations of causation and foreseeability loom large, and bring into sharp focus evidence which might have been admitted in June 1994, and the uses to which it would have been properly put.
For instance, as will be shown in due course, the evidence from Mr Galvin, a senior engineer formerly employed by Queensland Rail, as to faults in train braking systems in 1985, may have-been considered too remote in time to go to the issue of a fault in the braking system of a particular train in 1989, but in the context of this case it is highly relevant to the issue of foreseeability.
On the other hand, evidence from Mr Haim, another driver, as to an incident of “time delay in switch-over” experience by him on train number 69 only a month or so before the Windsor incident, can be said to bear also on the issue of whether such a fault did manifest itself in January 1989, and cause train number 69 to overshoot the platform at Windsor station.
Such evidence is admissible to rebut a presumption that the braking system on train number 69 was in good working order, when used by Mr Green in January 1989, and it can be used as circumstantial evidence in support of a presumption of negligence on the part of Queensland Rail.
In modern times it is wise to look for such evidence, rather than simply to rely on the doctrine of res ipsa loquitur, as a persuasive presumption. The well known passage from the judgment of Barwick CJ in Government Office of New South Wales v. Frederichburg, 1968 118 CLR 403 at 413 is to be borne in mind:
“Out of these cases emerge, it seems to me, as decisions of the Court, the following relevant propositions binding upon the Courts in Australia. First, that the so-called “doctrine” is no more than a process of logic by which an inference of negligence may be drawn from the circumstances of the occurrence itself, where in the ordinary affairs of mankind such an occurrence is not likely to occur without lack of care towards the plaintiff on the part of a person in the position of the defendant; or perhaps, as it might more accurately, in my opinion, be expressed, where in the opinion of the Judge, the jury would be entitled to think that such an occurrence was not likely to occur in the ordinary experience of mankind without such a want of due care on the part of such a person.
Second, that a case in which this can properly be said should be allowed to go to the jury, whether or not there is evidence of specific acts or occurrences which could be found to be more negligent but that no presumption of any kind in favour of the plaintiff thereby arises. That the occurrence affords evidence of negligence does not merely not alter the onus which rests on the plaintiff to establish his case on the probabilities to the satisfaction of the jury, but does not give the plaintiff any entrenched or preferred position in relation to the decision by the jury of that question.”
On 17 June 1988, Mr Green was driving a train near Kingston. His guard, Mr Whiting, occupied a cabin about the middle of the train. As the train approached a railway bridge Mr Green was disturbed to see a person on a motorcycle in front of him, on the bridge and in the path of the train.
Mr Green applied the brakes but was unable to stop before reaching the place where he had seen the motorcyclist. He thought the train had struck and run over the motorcycle and its rider. The experience unnerved him. He had withstood some trying experiences in the service before that but to him, this was different.
Mr Green was in a highly agitated state when he brought the train to a halt. Mr Whiting, the guard, quickly contacted Mr Green on the intercom and Mr Green said to him, “I've got him, Norm. I've got him. He's underneath.” Mr Whiting said, “What have you done?” Mr Green said, “He's underneath. A kid on a motorbike was on the bridge, he's underneath.” Mr Whiting told Mr Green not in any circumstances to move the train.
After notifying the controller Mr Whiting, also by this time greatly concerned, got down from the train bracing himself for the sight with which he might possibly be confronted. Mr Whiting examined the track under the length of the train and found nothing.
Then he saw a young motorcyclist speeding off down a nearby track. As fast as he could, Mr Whiting moved to tell Mr Green that the train had not hit the motorcyclist. Before he had a chance to do so, Mr Green moved the train, an act which concerned Mr Whiting greatly.
Mr Green did not seem to accept that the train had not hit the motor cyclist. When Mr Whiting told him nothing was under the train and that a nearby motor cyclist still to be seen riding away was probably the same one which had been in the path of the train, Mr Green remained disturbed. He wanted someone to travel with him for the rest of the journey. The train reached Kuraby via Kingston where an ambulance was waiting. Mr Green was given oxygen by the ambulance officers and taken to QEII Hospital where he was treated.
The resident medical officer Dr Pitcher after examination was so concerned for Mr Green's psychological health that on the same day 17 June 1988 he wrote to Queensland Rail in the following terms:
“Herewith Robin Green...who presented to QEII casualty in emotional shock following a collision of the train he was riding with a motor bike (written off). The rider jumped clear off the track only moments before impact. He has been involved in four similar incidents in the last eight years, several of these involved serious injury and on one occasion death of the pedestrian.
Following this incident he became very shaky, light-headed and vomited three times before fainting. On examination in casualty he was much more settled... no significant abnormality on further examination.
I feel he warrants counselling especially since he has doubts about his willingness to continue working in his current job (although at present time he is mentally and physically fit to do so) and has several financial constraints which make it difficult to change jobs.”
Queensland Rail placed that letter on Mr Green's file and sent a copy to Dr Doherty with the following letter dated 20 June 1988:
“The abovenamed (date of birth 27 May 1950) was involved in a motor cycle accident involving the train he was driving and he subsequently attended the Queen Elizabeth the Second Jubilee Hospital in emotional shock. I attach hereto letter received from the resident medical officer of the above hospital regarding Mr Green and observations. Would you please advise as to whether you consider Green now fit to drive trains.”
Dr Doherty saw Mr Green on 20 June 1988 and reported back to Queensland Rail in these terms:
“I examined driver Green in my rooms on 20 June 1988. Green was involved in a near miss episode on 11 June 1988. Following the episode he asked to be relieved and was accompanied by a porter until his relief arrived. Thereafter he went to the Queen Elizabeth the Second Hospital where he was found to be suffering from emotional shock. He could not remember driving the train after the accident but he is reported to have fainted and vomited later.
Discussion with Green shows him to be a well-balanced man who has been involved in similar episodes previously. His main concern was his lack of recall of events following his latest near miss. I explained the probably sequence of psychological events much to his obvious relief. He is happily married and his wife attended with him. I discussed the need to talk of his feelings about the episode but discovered that he was already doing so with his wife.
Green will return to see me if he feels the need. I recommend that Green continue driving but be restricted to the less stressful areas to the west of Ipswich for the next two weeks before returning to suburban electric train driving. I issued him with a note to the roster clerk to this effect. Should Green request a week's holiday after the next two weeks then I consider his request should be treated sympathetically.”
Mr Green was put on a quiet run for two weeks and then went back to driving trains on the more stressful suburban lines. His subsequent treating psychiatrist's opinion was that Mr Green needed a great deal more counselling than was provided by Dr Doherty.
I think that view would have been accepted in June 1994 especially since Mrs Green noticed a change in her husband after the Kingston incident. He was already starting to demonstrate the very symptoms which accompanied the post-traumatic stress disorder which was later diagnosed by Dr Troup after the Windsor incident. I do not think any criticism of Dr Doherty would have been warranted, however.
Even today, opinions differ as to whether and, if so, how much counselling should take place in such circumstances. Indeed, had the trial taken place in June 1994 I believe Dr Doherty's evidence would have been crucial. For a start, his present illness would not have prevented him from giving evidence before the trial Judge as it did before me.
At that time he would have been able to speak to his letter to Mr Green's present solicitors dated 22 February 1993. From that letter it is obvious that Dr Doherty was quite concerned about Mr Green on 20 June 1988. The fact that Dr Doherty did not administer further counselling is not really to the point. He is most unlikely to have known anything about a “time delay in switch over” fault in the braking system of Queensland Rail's trains about which Queensland Rail was only too well aware. It was not Dr Doherty's fault that Mr Green's nervous state was not followed up. Indeed, Dr Doherty included this telltale paragraph in his letter of 22 February 1993:
“Although I have no notes on any incident at Windsor Station it is reasonable that another frightening incident could have caused Green's anxiety neurosis even though he appeared to have recovered from his previous episode in June 1988.”
From this evidence, I think a Judge in June 1994 would have concluded as follows:
- That before the Kingston incident in June 1988 Mr Green led a normal, active life and displayed no extraordinary anxiety symptoms.
- That after the Kingston incident in June 1988 Mr Green started to withdraw and display extraordinary anxiety symptoms.
- That Dr Doherty was quite concerned about Mr Green's condition on 20 June 1988. That is why he thought discussions between husband and wife would be helpful. That is why he put him on light duties and suggested a week's holiday after two weeks of light duties.
- That Dr Troup's subsequent diagnosis of post-traumatic stress disorder is acceptable although that condition was attributable wholly to Queensland Rail's failure to follow up Mr Green's condition after the Kingston incident and more importantly to the trauma which Mr Green experienced as a result of the Windsor incident.
Not having seen Mr Green before and after the Kingston incident as had Mrs Green and Dr Doherty, Dr Troup was led by Mr Green's fragile memory, his fears and fantasies into making too much of earlier incidents in Mr Green's working life and not enough of these two frightening incidents, the first of which should have been overcome before he went back to work.
I turn now to consider what a Judge in June 1994 would probably have made of the Windsor incident. In January 1989, Queensland Rail knew that there existed within the braking systems of its suburban trains a curious propensity which could, if it manifested itself, cause its drivers stress.
On that day this propensity did manifest itself and did cause Mr Green stress. I will deal with the curious propensity when I discuss the evidence of the engineer Mr Galvin but before doing so I shall set out Mr Green's version which I have no doubt would have been acceptable as reliable.
Mr Green described what happened when he drove train number 69 into Windsor station in January 1989, in these terms:
“Well normally at each station the driver picks his own landmarks to mark it. You know, you know where you're going to stop, where you first apply the brakes so you stop on the station without overshooting. Coming in I put the brake on. I took it over to what you call from initial over to full service and when I did there was absolutely no response whatsoever, just absolutely nothing. So I got the brake controller and I brought it back to initial and then I pushed it further. Nothing happened again. I just pushed it over to full emergency and took my foot off the brake pedal and the train stopped three car units past the platform...
You're bringing it under control to a speed that you can safely stop the train at. Each station has got its own. Some have got a gradient, some are up hill and you have to make allowances for that. If it's wet weather you have to make an extra allowance because they've got what they call a slip-slide feature on it so that the wheels don't skid. It just drops the air out. That's in the wet weather. You just have to make allowances. Every station is different, every train is different. It might be full of passengers. Well you've got to take that into account. It could be an empty train or sometimes you've got two or 300 passengers on. Each one is different, you know.
On the floor you've got a pedal. Well it's a bar and you must keep it in a neutral position. If you take your foot off that it just lets all the air out of your system and the brakes will come on automatically. The power controller has got a twist grip. It's also an emergency brake. If you let the power controller go without your foot on the pedal your brakes will come on automatically as well and then once you've got over to full service on your brake handle you move it just a little bit further and it goes into full emergency.”
And then the question was put to him:
“And is that what you did on this occasion?-- That's what I did on that occasion and take my foot off the pedal as well. Has that pedal usually got a colloquial name?-- Oh we just call it the dead man brake. Your train eventually came to a halt?-- Yes. And you said it had over-shot the platform?-- Yes. What did you then-----?-- Well, when I settled down, sort of thing, I got on the phone to control and told them what happened. How did you feel then when you finally brought the train-----?-- I was stunned. I was shocked. I couldn't believe what had happened. It doesn't happen, but it did happen. I didn't know what to do.
All right. You eventually spoke to the control, did you?-- Yes. And what did you do? Don't tell us what they said to you but what did you do with the train?-- I eventually set it back into the station. I had to test the system first to make sure we were getting brake power. Did you take the train from Windsor?-- Yes. Where did you go to?-- Over to Bowen Hills.
What happened at Bowen Hills?-- Control advised me that they'd have an inspector at Bowen Hills who would have a look at the train and it would be taken out of service. Did you see an inspector at Bowen Hills?-- Yes. Who was that, do you remember?-- It was an inspector who I know by Jack Butt. What happened there?-- Well, he got on the train. I was due for a meal break there and he got on the train with my relieving driver and they got right of way and left.
And what did you do for the rest of the day?-- I had my meal break then I took another train to Beenleigh. I brought another train from Beenleigh back to Bowen Hills and worked my own train home. How did you feel during that day?-- Real uptight. What was the problem, as best you can describe it just His Honour how you felt?-- The problem was that I knew that that unit had a braking problem and if it was still in traffic it was going to happen again and it could be at a level crossing or coming into another station where there was a train waiting at the platform. There could have been an accident - oh no way in the world.
After the incident did you go back to work the following day?-- I can't honestly remember. Did you continue driving electric trains after that?-- Yes. Do you know how much longer you kept driving them?-- At a rough estimate probably a month or something like that. How did you feel during that period when you kept driving the trains?-- Very uncomfortable. Nervy, you know, just couldn't - couldn't really handle it. Just had to do it. Eventually it got to me and I just couldn't do it any more. Are you able to tell us what sort of things concerned you, what you were doing?-- In regard to the brakes? Well, in regard to why you were nervy after the Windsor incident?-- Because I was driving a fully loaded passenger train and I had a brake problem.”
Evidence was adduced from Mr Galvin who was the engineer in charge of the electric train shed, Mayne, and his duties included commissioning, maintenance, fault finding and repair of the electric trains. After that Mr Galvin moved onto other duties and by 1988 he was Corporate Manager Business Systems Queensland Railways.
At the time of trial Mr Galvin had taken up a position in Malaysia with a private railway. His statement was admitted into evidence having been provided to Mr Green's present solicitor in the presence of the legal officer for Queensland Rail. Mr Galvin's statement included the following:
“I was asked if I was aware, from my experience before I left the shed, of braking problems on the electric trains which may be relevant to the claim that the brakes on electric trains could fail in the manner claimed. The following is my response. During a period in the early 1980s while I held the position of engineer in charge I became aware of reported brake failures of electric units.
Following initial reports by one driver and then subsequent reports from other drivers, the problem was investigated in detail and this resulted in the following-findings: if the fault detection system on the electric train identified a potential problem with the electro-pneumatic braking it could automatically switch the braking over from electro-pneumatic to pneumatic only. If the circuit control which did the switching was slow in its operation, which it was in fact found to be in a small number of cases, it had the potential to give the appearance to a driver that the brakes had failed while the switch-over was occurring.
I don't recall exactly the time delay in switch-over which was found on a small number of the units. But a time of four to five seconds comes to mind. This problem was thought of as a brake failure at the time, since drivers travelling at 100 kilometres per hour with no brakes for four or five seconds perceived it as a failure of the brakes and could apply the emergency brakes before the full controlled pneumatic brakes took over. They could not and did not wait to determine if it was just a slow change over.
I was present on a train one weekend when this occurred. The change over from electro-pneumatic to pneumatic did occur eventually but the period during which the change over was occurring generated in my mind concern that the brakes had failed. The fault was finally found and remedial action was taken. I don't recollect what the remedial action was.
It did include a check on all of the circuits which controlled the time of change over. And I can only assume we did include in the maintenance practice a check on this timing circuit. However, I do recollect that there was a decline in the number of instances of this being reported. I do not recollect any instances after we undertook the remedial action and prior to my departure in 1984/85.
In considering the question of whether the problem could have re-occurred post-1984/85 I would be of the view that it would be possible. However, I am not in a position to comment on the probability of it occurring since I do not recollect what remedial action was taken, nor what maintenance procedures were put in place following the identification of the original problem.
I would point out that there was inherent safety built in to both the train design and the signalling design which would ensure that an electric train would not be involved in a collision situation with another train in the event of a brake failure. This was achieved by the automatic brake change over or a driver's ability to go into an emergency braking situation once they believed they had a brake failure. This does not detract from the perception of a driver travelling at 100 kilometres per hour that they have a brake failure during the situation described above.”
From that evidence the following conclusions would probably have been reached by the trial Judge in June 1994:
- (1)That a fault detection system existed in the braking systems.
- (2)That when the fault detection system detected a potential fault in the electro-pneumatic braking it could automatically switch the braking over from electro-pneumatic to pneumatic only.
- (3)That automatic switching was done by a circuit control which, itself, could partially malfunction so as to be “slow in operation”. Such a “slow” caused, in effect, a four to five second brake failure. Such a “slow” was a genuine fault in the system.
- (4)That such a fault was in truth a brake failure since a train travelling at 100 kilometres per hour would have no brakes for four to five seconds. Certainly the driver could apply emergency brakes but the impression was one of brake failure and he had to decide whether to do that straight away or wait to see whether the full controlled pneumatic brakes took over.
- (5)That in the event that a driver experienced such an occurrence he was subjected to a frightening experience likely to cause stress even to the most phlegmatic of drivers.
It will be noted that Mr Galvin, in his statement provided in 1998, recalled his having been present on a train one weekend when such a “time delay in switch-over” occurred and which generated in his mind concern that the brakes had failed.
The evidence of Mr Haim, another driver, was to the effect that in December 1988 he, Mr Haim, in company with Mr Galvin was driving the very train, number 69, which Mr Green subsequently drove in the Windsor incident the following month, when a time delay in switch-over occurred. That seems likely to have been the incident to which Mr Galvin referred in his statement.
Mr Haim told me that Mr Galvin, very much his senior at the time, wrote the incident up in the train's report book. The significant features of that event in December 1988 are likely to have been seen in June 1994 as follows:
- (1)When the time delay and switch-over occurred even Mr Galvin thought the braking system may have failed.
- (2)Such time delays were still occurring some four years after Mr Galvin had left his position in the main workshop, and more than four years after the phenomenon had been identified.
- (3)The fault was finally found, but remedial action was not wholly effective.
- (4)Time delay in switch-over could have re-occurred post 1984 and 1985.
- (5)Mr Galvin would have correctly identified the incident in 1988, in point of time, when train number 69, driven by Mr Haim, took place with Mr Galvin on board.
Turning to Mr Haim, he told me that after Mr Galvin wrote in the train's repair book, Mr Galvin arranged for train number 69 to be sent to the electric shed for repair. Mr Haim told me that he had experienced many such incidents, and that on each occasion the occurrence had been written up in the particular train's repair book.
The defence called Mr Butt, another former train driver from Queensland Rail, who was the officer assigned to the task of operating train number 69 during the inspection after the Windsor incident in January 1989. In the course of that inspection he detected no fault with the brakes on train number 69. When asked about the time delay in switch-over phenomenon, which he called “an EP drop-out,” Mr Butt told me that a train could travel some distance before those brakes started to take effect, so that the driver will think he has “lost everything.”
In fact, he told me that the delay is only about three seconds but it-seems a lifetime to the driver. Mr Butt conceded that he had experienced such an event as a driver, and it caused him to “sweat” and to wonder what was going to happen.
There is not the slightest doubt on this evidence that the phenomenon known as time delay in switch-over did take place from time to time, and that it had been regarded as a fault by Queensland Rail as long ago as the early 1980s. Attempts had been made to cure the fault, and these had proved less than effective. Manifestations of this fault occurred only occasionally, but they were sufficiently frequent to cause concern.
Importantly, the effect of the fault was to give the driver the impression that the pneumatic braking system had completely failed. Even stoic drivers like Mr Butt, who ultimately reached the rank of train operations inspector, had been stressed as a result of the occurrence, and when Mr Galvin, the engineer, ultimately underwent the experience, he too thought the brakes might have failed.
Queensland Rail must be taken to have been aware that Mr Green was in a fragile emotional state after the Kingston incident. Queensland Rail failed to provide him with adequate counselling and follow-up care. Queensland Rail was in breach of its duty of care in sending Mr Green back to train driving in that condition, when it was well known to Queensland Rail that the trains he would be driving were quite likely to cause him great stress due to their propensity to manifest the so-called time delay in switch-over. Very much greater care should have been taken at the time of Mr Green's emotional health.
It is noteworthy that soon after these occurrences Queensland Rail employed a stress counsellor, Mr Formby, thus emulating the Queensland Police and Ambulance Services. It is now the case that Mr Formby attends all stress-producing incidents and provides the very counselling and follow-up care and concern which Mr Green needed in this case after the Kingston incident.
Mr Green is likely to have succeeded in his action against Queensland Rail in June 1994 by showing, on the available evidence, that Queensland Rail failed to provide him with a safe system of work. Such was the knowledge had by Queensland Rail of both Mr Green and the braking systems on its trains, that the fact of the Windsor incident and its consequences for Mr Green were clearly foreseeable.
Cases such as Queensland Corrective Services Commission v Gallagher, Court of Appeal, 7588 of 1998, and White and Others v Chief Constable of South Yorkshire (1998) 3 WLR 1509 are easily distinguished because of the very full knowledge which Queensland Rail had in this case of Mr Green's condition after the Kingston incident, and of the real possibility that he would be confronted by an apparent brake failure.
In cases such as this, where an employee's extraordinary susceptibility to psychiatric illness induced by shock is known to the employer, then the concept of reasonable foreseeability as an objective criterion of duty with the gauge of a general standard of susceptibility, is not applicable provided it is shown that an ordinary person of normal fortitude in the position of the employee would have suffered some shock. See Jaensh v Coffey 91 155 CLR 549, and Woodrow v Commonwealth (1993) FCR 52.
Where it is reasonably foreseeable to an employer that an employee might suffer a shock-induced illness because of the stress of the tasks he was expected to perform with the tools made available to him with which to perform those tasks, the employer is under a duty of care as part of the duty to provide a safe system of work, not to cause the employee psychiatric damage by reason of the failure of those tools in the performance of the employee's allotted tasks. See Walker v Northumberland County Council (1995) 1 All England Reports 737, where the same principle was applied in the case of illness induced by reason of the volume and character of the work which the employee was required to perform.
I have reviewed the medical evidence and reached the conclusion that the trial Judge in June 1994 would probably have made the following additional findings of fact:
- (1)Mr Green never suffered from temporal lobe epilepsy; that is to say Dr Cameron's views would have been accepted.
- (2)Dr Troup's opinion that after the Kingston incident Mr Green suffered an acute stress disorder, and after the Windsor incident he suffered a chronic post-traumatic stress disorder, would have been accepted. I think the symptoms noticed by Dr Pitcher at the QE II and Dr Doherty's reports of the 20 June 1988 and the 22 February 1993, together with the evidence of Mrs Green, provides sufficient support for the acceptance of Dr Troup's two conclusions.
- (3)I do not think Dr Nothling's evidence would have carried much weight. He saw Mr Green only once, and that was in December 1994. Like Dr Troup, he too was misled by Mr Green's fragile memory, his fears and fantasies, into making too much of earlier incidents in Mr Green's working life and not enough of the two frightening incidents at Kingston and Windsor, which I am satisfied would almost certainly have been found wholly responsible for Mr Green's chronic illness.
So much for the notional hearing. I notice that Mr Green's more recent signs of a possible heart condition have been the subject of vague evidence. Of course, such subsequent events in an appropriate case may be taken into account in the assessment of damages. See Johnson v Perez 166 CLR 351. However, it was not shown that Mr Green's “heart condition,” if, indeed, he really had one, had any bearing on his inability to work as a train driver or otherwise. Indeed, there was, on this evidence, no proper basis for any inference that Mr Green's life expectancy was any less on that account.
He said he was admitted to the Ipswich Hospital in 1996 with chest pains, and then he was conveyed to the Prince Charles Hospital for tests, but he said that was not because of his heart. He said they were trying to find out whether anything was wrong with him. In an informal letter written by Dr Troup to Mr Green's now solicitors, dated 19 April 1997, and tendered by the defence, Exhibit 20, Dr Troup refers to Mr Green having been admitted to the Ipswich Hospital with a suspected myocardial infarct, which turned out to be stress. Any other reference to Mr Green's “heart condition,” either in the evidence or in submissions, was without a great deal of substance.
Dr Troup's report of the 6 March 1997, Exhibit 4, at page 2, certainly sets out the history of how the diagnosis at the Ipswich Hospital was unstable angina, but this diagnosis does not seem to have been borne out on subsequent examination. The acceptance at the Ipswich Hospital (according to Dr Troup) that Mr Green had a history of temporal lobe epilepsy was equally arbitrary and clearly erroneous.
No treating medical practitioner was called in respect of Mr Green's “heart condition”. No documentation was produced which could support the existence of any such condition. Indeed, references from the Bar table as to Mr Green's “heart condition” had about as much substance on the evidence as similar assertions as to his alcoholism.
Nevertheless, one has to be realistic. One assumes the Ipswich Hospital staff would not have erred in recording Mr Green's obesity, blood pressure, cholesterol levels and his smoking. One can take judicial notice these days of those factors and behaviours as likely to induce a heart condition. I should assess damages on the basis that Mr Green has let himself get into a condition where he has a potential heart condition and this means I shall calculate future economic loss on the lower end of the scale.
Having reached all those conclusions as to what a Judge sitting in June 1994 on an action by Mr Green against Queensland Rail would probably have found, it is a matter now to adopt the proper approach to the assessment of damages in Mr Green's action against his erstwhile solicitor for loss of a chance. In that regard I respectfully adopt a statement of principle made by Lord Evershed MR in Kitchen v. Royal Air Force Association (1958) 1 WLR 563:
“If in this kind of action it is plain that an action could have been brought, and if it had been brought that it must have succeeded, of course the answer is easy. The damaged plaintiff then would recover the full amount of the damages lost by the failure to bring the action originally. On the other hand, if it be made clear that the plaintiff never had a cause of action, that there was no case which the plaintiff could reasonably ever have formulated, then it is equally plain that the answer is that she can get nothing save nominal damages for the solicitor's negligence.
But the present case falls into neither one or the other of the categories which I have mentioned. There may be cases where it would be quite impossible to try the action within the action as Mr O'Connor asks. It may be that for one reason or another the action for negligence is not brought until say 20 years after the event and in the process of time the material witnesses or many of them have died or become quite out of reach for the purpose of being called to give evidence.
In my judgment what the Court has to do (assuming that the plaintiff has established negligence) in such a case as the present is to determine what the plaintiff has by that negligence lost. The question is, has the plaintiff lost some right of value, some chose in action of reality and substance. In such a case it may be that its value is not easy to determine but it is the duty of the Court to determine that value as best it can.”
Taking up some of that language, it seems to me “plain that an action could have been brought and, if it had been brought, that it must have succeeded.” In consequence Mr Green should recover the full amount of the damages lost by the failure to bring the action originally. There shall be no so-called loss of chance discount in this case.
Born on 27 May 1950 Mr Green was forced out of the work force. He has not worked since soon after the Windsor incident and he will never work again. Mr Green had no psychiatric condition before the Kingston and Windsor incidents. He was an active, happy, outgoing family man. His whole lifestyle was changed for the worse. He became very withdrawn and depressed and takes part in very few domestic activities. He has lost most of the enjoyment of life which includes the former excellent relationship he enjoyed with his wife and children. That Mr and Mrs Green are still cohabiting seems to be almost solely due to Mrs Green's patience and devotion to duty. She tends to his needs on a daily basis and will do so for some years yet.
I assess general damages at $40,000. I shall allow the sum of $107,640 for past economic loss together with interest. On that sum, less the Workers' Compensation Board's weekly compensation payments of $10,273.62, and less the Department of Social Security payments taken at $298 between May 1990 and trial, which leaves a balance of $66,639.37, which calculated at 6 per cent per annum leads to the figure of $19,910.80 for interest.
For future economic loss I calculate a sum based on $414 for five years. If it had not been for Mr Green's potential heart condition, I would have calculated damages under this head over 10 years. I shall allow $95,000. Workers' Compensation Board outlays amount to $1,534.53. The Fox and Wood component is $253.47. As to gratuitous services, I think he has and will continue to require those for some two to three hours a day and the figure of $9.50 per hour was agreed. For the past I allow $34,580 plus interest at 2 per cent, $3,458. For the future I allow, which again is at the lower end of the scale, the sum of $30,000.
Those awards leads to a total of $332,376.80 less Workers' Compensation Board payments $34,406.63 - that leaves a total of $297,970.17 -- less the DSS amount calculated by dividing by 529 the sum of the awards for past economic loss plus interest plus future economic loss. Thus one is left with the number of weeks, in this case 420.7, to be multiplied by $298 - that comes to $125,368.60 - which sum deducted from $297,970.17 produces a total of $172,601.57. There will just be judgment for the plaintiff against the second defendant, Mr Ian Berry, in the sum of $172,601.57. Any arguments about costs, gentlemen?
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HIS HONOUR: It will be an order in favour of the plaintiff against the defendant Berry in the sum of $172,601.57 plus interest on that sum at the rate of 10 per cent from 30 June 1994 to 7 April 1999. Now, what about costs?
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HIS HONOUR: The defendant will pay the plaintiff's costs of and incidental to the action to be taxed.