Beardmore v Crown Equipment P/L
[2012] QDC 310
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- Unreported Judgment
- Beardmore v Crown Equipment P/L[2012] QDC 310
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Beardmore v Crown Equipment P/L[2012] QDC 310
Beardmore v Crown Equipment P/L[2012] QDC 310
DISTRICT COURT OF QUEENSLAND
CITATION: | Beardmore v Crown Equipment P/L [2012] QDC 310 |
PARTIES: | ANTHONY MICHAEL BEARDMORE (Plaintiff) v CROWN EQUIPMENT PTY LTD (Defendant) |
FILE NO/S: | 3131/11 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 3 October 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 – 6 September 2012 |
JUDGE: | Reid DCJ |
ORDER: | Judgment for the Defendant |
CATCHWORDS: | Negligence – Workplace injury – Hip replacement – Osteoarthritis – Whether fall accelerated need for surgery |
COUNSEL: | R Lynch for the Plaintiff R Myers for Defendant |
SOLICITORS: | Shine Lawyers for the Plaintiff MVM Legal for the Defendant |
- [1]In this matter the plaintiff seeks to recover damages from the defendant for personal injuries alleged to have been suffered in a fall at his work on 9 December 2008. Both liability and quantum are in dispute. Indeed, the defendant disputes that the plaintiff in fact suffered any fall.
Background
- [2]The plaintiff was born on 1 May 1955. He obtained mechanical engineering qualifications when employed by the Ministry of Defence in the United Kingdom before coming to Australia in 1981. He then had a good work history up until the time of the accident. Primarily he worked in the forklift industry, initially as a service technician and then in sales. He had been employed by the defendant from 20 February 2006 and remained with them after the alleged injury until 3 August 2009. He was a major account manager.
- [3]The major disputes in the case concerned whether a fall in fact occurred and, if it did, the extent to which it may have accelerated the plaintiff’s need for a total right hip replacement. The plaintiff’s case, which relied on the opinion of Dr Gillett, an Orthopaedic Surgeon, was that the fall accelerated his need for that surgery by some one and a half to two years. The defendant’s case is that if there was any such fall it had an inconsequential affect on his condition.
- [4]In order to understand these competing views it is necessary to recount something of his medical history prior to 9 December 2008.
Medical history
- [5]The plaintiff’s general practitioner was a Dr Rath at Brendale Medical Centre up until he moved to the south side of Brisbane. The last consultation with Dr Rath was on 19 September 2008. The following relevant entries are taken from the notes of that practice which notes commence on 18 August 2003;
“Inactive past history
08/08/1998 Right Hip Osteoarthritis, Bilateral knee osteoarthritis and quadriceps weakness
Consultation
18.8.03 Pain right knee for six months bad when walk. Sometimes gives way.
19.5.05 lower back pain
A few days
In and out of tractors with job
Has had back pain in the past – says was admitted 10 years ago.
10.6.08 L hip pain severe. Awakened up out of sleep severe pain no matter what do no relief
13.6.08 Back pain. L hip pain radiates into medial L thigh and medial L calf feeling numbness. Lying resting assist the pain. In and out of cars aggravates the pain
Reason for visit
Sciatica – L3/L4 disc prolapse. (I note at this stage that he was referred to Mr Cameron Lawson a physiotherapist).
3.7.08 still has Lt sciatica. On Tramal for pain
8.8.08 back pain improved R hip pain R knee
19.9.08 back pain better. Pain R hip L lower limb numbness.
- ← improved since the fall few months ago”
- [6]When asked about this fall in his evidence the plaintiff said he had no recollection of it. I shall refer to this later when considering Dr Dalton’s evidence.
- [7]A letter of 4 August 2008 from Mr Lawson, the physiotherapist to whom the plaintiff was referred in June 2008 indicates that his back was then “much better” but records that “he has early (R) hip OA symptoms. He needs to address these problems. I’ve given him some back exercises to continue.” OA, of course, refers to osteoarthritis.
- [8]I note also that the medical records show that he was markedly obese. He was 177 cm tall. On 6 January 2004 his weight is recorded as 145 kilograms, equivalent to a BMI of 46.3. Thereafter his weight reduced to 117 kilograms on 7 September 2006. Over the period thereafter it gradually increased and on 19 September 2008 he was 123.4 kilograms.
- [9]As I have said he moved to the south side of Brisbane and commenced with a new general practitioner. Dr Ketheesan of Park Ridge Family Practice first saw him on 4 December 2008, just 5 days prior to the fall the subject of the litigation. The records indicate that he was at that time 126 kgs.[1] He appears to have seen Dr Ketheesan at that time because of blood pressure problems which were recorded as 148/97. He was prescribed blood pressure medication and advised to lose weight, walk for 30 minutes daily and have a low salt diet.
- [10]There was no evidence whether the defendant had commenced to follow these recommendations but his counsel did submit during the course of his final submissions that the fact that he was advised to walk for 30 minutes and does not appear to have demurred to that suggestion, indicates that at that time he was not having significant symptomology with his right hip.
- [11]Subsequently he had lap band surgery on 7 April 2009, four months after the alleged incident.
- [12]This medical history of the plaintiff is of critical importance to the case. Dr Gillett, on whom the success of his case largely depends, said in his initial report that the plaintiff had a pre-existing but asymptomatic degenerative osteoarthritis in his hip and pre-existing osteoarthritis in his lower back, left hip and both knees which was giving him symptoms at the time of his examination. I shall turn then to a description of the alleged incident, the plaintiff’s reported symptoms arising therefrom and the opinions of the orthopaedic surgeons who have provided reports in this matter.
The alleged incident
- [13]The plaintiff worked at the defendant’s premises at Dulacca Street, Acacia Ridge. A photo of the building was Exhibit 8 before me. It comprised offices at both ends of the building and a workshop in-between. There was evidence that the workshop comprised two areas, joined by an opening in the brick wall. It was common practice for employees to walk through the workshop when moving from one office to the other. The plaintiff said the alternative was to exit the building through an external door, and walk in the open before re-entering through a door at the other end of the building. He said the exit near to his office, which was in the area to the left side of the building shown in the photo, was often blocked with forklifts. It would of course have also involved him walking in the open. The offices were about 40 metres apart. In wet weather this would have been a problem.
- [14]In any case, in circumstances where it was not in dispute that staff used to regularly walk through the workshop this seems to me of no relevance. It would in that circumstance have been incumbent on the defendant, as the plaintiff’s employer, to take reasonable care to avoid exposing employees to unreasonable risk of injury (Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25). This required the defendant to take reasonable steps to allow safe means of passage through the workshop.
- [15]The plaintiff says the workshop was often littered with machinery and other items, both forklifts and items used to maintain them, and that there were often spillages of materials such as diesel, oil or grease.
- [16]On the morning of 9 December 2008 he says he was walking from the office at the right hand end of the building shown in exhibit 8 to the office at the left hand end, i.e. towards his own office. He said he was walking with a co-employee, Mark Rossow and that Mr Rossow was walking a little in front of him. Mr Rossow was also a senior employee of the defendant and performed the same type of work as the plaintiff, namely a major account manager.
- [17]The plaintiff says that at a point halfway through the first of the two workshop bays which separated the two offices, and hence probably about 10 or so metres from the door leading into the workshop area at the right hand side of the building shown in Exhibit 10, he slipped and fell on a patch of oil, grease or similar material which had been spilled on the floor. He says it was difficult to see this oily patch because it was a similar colour to the workshop floor. It was not explored with him whether this meant it was clear, or in fact the colour of the floor of the workshop which was, he said, concrete, but discoloured by acid and oil spills.
- [18]The plaintiff described his right leg as slipping forward, his left leg as buckling so that his knee struck the floor and his then falling backwards onto his buttock and then fully onto the floor. He said that immediately afterwards he noticed what he described as an oily greasy patch on his trousers.
- [19]He said Mr Rossow helped him up and that he felt he had done something to his left knee and right hip. He said he took a few Panadol from first aid and spoke to Frank Bien, the workshop foreman, and told him to clean up the greasy patch on the floor. Mr Bien was not called as a witness. No explanation was given by the defendant as to whether he was available to give evidence or not. It does not seem that at least until the plaintiff gave oral testimony of this conversation, that the defendant would necessarily have been aware of the fact of that alleged conversation since Mr Bien is not referred to in the plaintiff’s written report of the incident to which I shall shortly refer. I therefore infer nothing from the failure of the defendant to call him as a witness.
- [20]The plaintiff said he filled out an incident report on that day, namely 9 December, but did not lodge it until 12 December. His explanation for not doing so was that Alex Grey, who he said was the occupational health and safety officer, was not at work on the 9th.
- [21]The defendant’s counsel made some criticism of the plaintiff because of the fact that the incident form was not handed in on the 9th, but it seems to me that little turns on this fact. The point is that within about three days of the accident the defendant was informed of the incident, and was advised in the report of two people whom the plaintiff believed witnessed the incident; namely M Rossow and N Sparkes.
- [22]The report which was Exhibit 10 was generally consistent with the plaintiff’s evidence. It lists the “reporting date” as 12 December, consistent with his evidence. It describes only that he and “Mark Russow were walking through the workshop” and does not indicate their direction of travel, a point of some significance for reasons I shall shortly recount. The report discloses that it occurred in the “plant 2 workshop near rear door of offices at other side of workshop”. He was not asked to explain that description but in evidence before me said that his office, and that of Mr Rossow, was at the left hand end of the building, as shown in the photo to which I have referred. It seems that administrative staff generally occupied the right hand offices. The use of the term “other side of workshop” might then be thought to be consistent with his evidence that it occurred near to the side of the building other than that in which he worked.
Symptoms of incident
- [23]The plaintiff said that thereafter he suffered from symptoms in his right hip and that they got worse and worse. He said he had some Tramadol, a pain relief medication, at home which had been leftover from a prescription given to him by Dr Rath some months earlier.
- [24]Perusal of the records of the Brendale Medical Centre, indicate that Tramadol had been last prescribed on 3 July 2008 for symptoms in his back, left hip and leg. I shall refer to this later because of some evidence about whether or not the plaintiff had obtained the medication the subject of this script.
- [25]The plaintiff says that on 12 December 2008 he attended upon Dr Ketheesan his general practitioner. He says his primary complaint was for a blocked ear but that he “thought” that he had mentioned an aching hip also but that Dr Ketheesan seemed more intent on his losing weight.
- [26]The plaintiff again saw Dr Ketheesan on 23 December but says he did not mention his left hip.
- [27]His next consultation with Dr Ketheesan was not until 10 February when he complained of right hip pain “following a fall at work a month ago.”
- [28]The records of Dr Ketheesan are of importance. They record, as I have said, a consultation on 4 December 2008. That was the plaintiff’s first consultation at the practice. The consultation of 12 December was therefore his second consultation. The notes disclose the problem with his ear but make no mention of any complaint about hip pain. In evidence Dr Ketheesan said that if it had been mentioned, and especially if he had recommended weight loss as the appropriate treatment for any such problem, that he believes he would have recorded it in his notes.
- [29]Medical notes, of course, are not infallible. Indeed Dr Ketheesan’s own notes on 4 December include the transposition error with respect to his height and weight to which I have already referred. Subsequently, on 10 February 2009 Dr Ketheesan referred to a complaint of left hip pain. I am sure the complaint was however with respect to the plaintiff’s right hip, because on that day an x-ray of his right hip was requested and on 27 February there was reference in the notes to the right hip pain being “not better with the pain killers”.
- [30]I shall return to this issue in considering the plaintiff’s credit in this matter but two things can in my view be usefully said at this time.
- [31]First, in my view, even though the doctor’s notes could of course contain errors or omissions, not to record a complaint of right hip pain is in my view less likely with a new patient, on only his second visit to the practice, and especially with a patient who was so obviously overweight and who had not previously made any such complaint.
- [32]Second, I note that Dr Ketheesan prescribed Tramadol on 10 February 2009. At his consultation on 27 February 2009 he records, as I have already said, that the plaintiff’s right hip pain was “not better with the pain killers”. In my view, if the plaintiff had been taking Tramadol for significant hip pain as he describes prior to Dr Ketheesan prescribing that same drug on 10 February he would probably have told Dr Ketheesan of that fact, especially when Dr Ketheesan himself then prescribed Tramadol. That he did not do so is in my view confirmed by the absence of any note to that effect with respect to the consultation on 10 February and the note to which I have referred with respect to the fact his condition had not improved “with the pain killers” from the consultation on 27 February.
- [33]Following the consultation on 27 February 2009, the plaintiff was referred to Dr Sanjay Joshi who is an orthopaedic surgeon. The report of Dr Greg Gillett of 17 January 2012 says he was “sent to an orthopaedic surgeon at Sunnybank who advised that he needed to have a hip replacement. He did not have this done as he was concerned that he would lose his job”. This matter was initially not touched upon in any of the plaintiff’s evidence-in-chief nor in his cross-examination. No records of any consultation with Dr Joshi were initially put in evidence. When I raised this matter, near to the end of the defendant’s case, efforts were made to obtain a report by Dr Joshi. It was subsequently obtained and admitted into evidence by consent.
- [34]Dr Joshi saw the plaintiff on 10 March 2009. He recorded at that time that the plaintiff said the pain was severe for three months, was disturbing his sleep and was “not relieved with 10-20 Pendine [sic] forte tablets daily”. There is no mention of his having taken Tramadol as the plaintiff asserted in his evidence, nor of any fall aggravating his condition. In my view both matters are of importance in considering the credit of the plaintiff.
- [35]The plaintiff continued working with the defendant after the incident. He said he did so with discomfort. In about June 2009 the defendant changed premises and the plaintiff was then required to use stairs. This, he said, increased his discomfort. In August 2009 there was it seems a dispute between he and his manager and as a result he ceased employment with the defendant on 4 August. It was not said this cessation in his employment was related to his injury. He then commenced work with another forklift company, Access Services, on 31 August 2009. He said he worked flexible hours with that business because of his hip pain but ceased work with them on 2 March, prior to a total hip replacement which was performed by Dr Dalton on 17 March 2010.
Corroboration
- [36]The plaintiff called Mr Rossow to corroborate his evidence about the circumstances of his fall. I found Mr Rossow to be an evasive and totally unreliable witness. Mr Rossow said the accident occurred as they were walking from one office to the other, and through the workshop. He said he was walking ahead of the plaintiff. There the similarities in their evidence stopped. Mr Rossow said they were walking from the office on the left hand side of the building shown in Exhibit 8 to those at the right hand end of the building. This of course is the very opposite of the evidence that the plaintiff had given. He said that he did not see the plaintiff fall and could not say how he had done so. He did say that he himself had stepped over the prongs of a forklift and suggested that this may have been the cause of the plaintiff tripping. He gave no evidence of spilt oil or grease. In a statement given by him to loss assessors he said that “As I was walking out of the back door of the building I had observed the (plaintiff) to be getting himself up off the floor a few metres of [sic] the doorway”. It is clear from the statement that the “back door” he referred to was the door leading from the left hand office into the workshop. His description in that statement clearly suggests the plaintiff was in front of him when he fell, contrary to what he said in evidence. He also said in that statement that the “floor of the workshop was regularly cleaned with an electric scrubber” and that the walkway between the two offices was generally quite clear and did not have debris in the area.
- [37]As I have said I have found the evidence of Mr Rossow totally unconvincing. His evidence in my opinion was so unreliable that I do not accept it with respect to any matter.
Expert medical evidence
- [38]I shall turn now to the evidence of Dr Gillett, who provided a medico legal report to the plaintiff’s solicitors, Dr Steadman, who did so to the defendant’s solicitors, and Dr Dalton, who was the plaintiff’s treating orthopaedic surgeon and performed the total hip replacement in March 2010. He provided a report of 30 January 2012 to the defendant’s solicitor. All three doctors gave evidence before me.
- [39]Dr Gillett provided a report of 17 January and a memo of a conversation between Mr Lynch, counsel for the plaintiff and Dr Gillett of 5 September was also put into evidence (Exhibit 5) as was a subsequent a report Dr Gillett gave to the defendant’s solicitors.
- [40]In his initial report Dr Gillett recorded that after the fall on 9 December the plaintiff was unable to get up and was helped to do so by his co-workers. He was told by the plaintiff of the onset of immediate pain. He said that he was told that despite trying to work the plaintiff’s pain was so great that he went to his doctor a few days later. He was told by the plaintiff that he was referred for physio but continued to have problems over the Christmas New Year period. He said that in the New Year he was sent by his employer to a medical practice, Health for Industry. He was told he was then sent to a doctor in Sunnybank who advised of the need for a hip replacement but the plaintiff did not want this to be done because of concern for his job. I have already said that this was Dr Joshi. Dr Gillett was told of persisting symptoms and of his eventual referral to Dr Dalton.
- [41]With respect of the plaintiff’s past history Dr Gillett records the following:
“Prior to the events in question he had no symptoms in his right hip. He had a previous lower back injury some years ago. He had some time off. He had hydrotherapy rehabilitation and recovered and he didn’t have any ongoing problems. He denies any symptoms with his left hip before this event and right and left knees gave him some clicking and creaking but no ache or pain and it didn’t stop him doing things.”
- [42]It can be seen that the history given to Dr Gillett by the plaintiff both in respect of his pre-accident medical history, and the development of symptoms and treatment he received post accident contain a number of significant inaccuracies. I have said already that I think it unlikely Dr Ketheesan would not have recorded the fact if the plaintiff had complained of hip pain when he saw him with respect to his ear problem on 12 December. In my view this is especially so if the plaintiff had “so much pain he went to the doctor” as he told Dr Gillett. His being referred to physio did not occur until significantly later, on 24 February 2009, when he was referred to Mr McLean of Sunnybank Hills Physiotherapy. In addition to these inaccuracies about the nature of his symptoms and treatment after the alleged incident, the past history he gave to Dr Gillett about symptoms in his hips, back and knees was also inaccurate. Dr Gillett conceded that this was so in his oral testimony, having then read Dr Rath’s notes.
- [43]As a result, the conclusion Dr Gillett reached in his initial report of 17 January was based on false assumptions, a point he readily conceded. In my view however the history given in the report is still of critical importance because it says much about the credit of the plaintiff.
- [44]Mr Lynch spoke to Dr Gillett by phone shortly before the trial. A memo of that conversation was as I have said exhibit 5 at the trial and the supplementary report of Dr Gillett of 31 August 2012 given to the defendant’s solicitors was Exhibit 6.
- [45]In Exhibit 5 Dr Gillett accepted that the plaintiff had a history of symptomatic osteoarthritis in his right hip prior to 9 December 2008. He said that “the real issue was the extent of it”. In my view whilst that was indeed a real issue so too was the question of whether the plaintiff had in fact developed symptoms, and if so the extent of such symptoms, after that date.
- [46]Dr Gillett was then asked to consider a number of matters, set out in sub-paragraphs 1 – 8 of page 2 of the memorandum, Exhibit 5. He expressed the view, based on those assumptions, that there was a “clear causal connection between the subject fall and the acceleration of his osteoarthritic process”. He said the ingestion of Tramadol, which he was asked to assume the plaintiff had taken very soon after the fall, from a stock of such medication left over from the earlier prescription he had been given in July 2008, was important “because (it) would have masked his symptoms so that they were initially tolerable”.
- [47]He said based on the assumptions he had been asked to accept that his “educated guess” was that the accident advanced his need for a hip replacement by one and a half to two years. It was on that basis that the plaintiff’s counsel submitted damages should be assessed.
- [48]It is thus important to consider the assumptions on which Dr Gillett’s opinion was based. I set them out in full:
- That in the period of a couple of months leading up to the subject fall the plaintiff was symptom free in his right hip;
- That in the subject fall the plaintiff’s right foot slipped forward and his left leg buckled causing his left knee to hit the floor. He then fell backwards and on to his right buttock and back area;
- That immediately following the fall he felt symptoms in his right hip that he was aware of however the pain was tolerable;
- He began to take prescription analgesia, namely, Tramal which he had left over from his left sciatic problem that he had suffered earlier in 2008. In addition, he was taking Aspro clear to supplement this analgesia. At this time his pain was tolerable;
- The plaintiff had two weeks off from work over Christmas during which he was able to rest and not be engaged in his normal work pursuits as a salesman which required him to get in and out of a vehicle constantly during the day;
- The plaintiff at this time believed that his right hip symptoms would resolve without medical treatment and rest as they had before;
- However his pain and discomfort increased and by the time he saw a doctor on 10 February 2009 he was in significant pain;
- He then suffered unremitting pain in his right hip until he had the hip replacement surgery on 17 March 2010.
- [49]In August 2009 the medical records of Dr Ketheesan indicate that the plaintiff had lost his job and that this was attributed to his inability to walk fast or climb stairs. On 13 October 2009 Dr Ketheesan indicates the plaintiff was then “working part-time” and had pain “in his hips and knees”. By February 2010 x-rays were requested of both hips and knees. Subsequently on 25 February 2010 the plaintiff saw Dr Philip Dalton, an orthopaedic surgeon to whom he was referred by Dr Ketheesan in respect of pain to his right hip. Subsequently Dr Dalton performed a right hip replacement at Greenslopes Hospital on 17 March 2010. I note that Dr Dalton records in his report of 30 January 2012 that the plaintiff gave a history “of having had problems with his hip for many years. He indicated that it may well have been in the order of 15 years. He described a motor bike accident as a younger person and thought this had contributed to his symptoms. He did indicate that he had a fall at work approximately two years previously and he thought this had aggravated his hip”.
- [50]I have previously noted that the records of Dr Rath refer to a fall “a few months” prior to a consultation on 19 September 2008. It is therefore not clear that this description to Dr Dalton was even of the subject fall.
- [51]Medical records of Health for Industry indicate that that practice saw the plaintiff on three occasions, namely 13 and 20 March and 3 April 2009. On the first consultation he gave a history of slipping on concrete in the workshop in November 2008 and landing on his lumbar spine. He was said to have ongoing right inguinal pain radiating down his interior thigh and into his back and no numbness or pins or needles. He was said to be taking Tramadol Panadeine Forte and sometimes Nurofen Plus and ibruprofen. He was taking up to 20 Nurofen a day.
- [52]When giving evidence I found the plaintiff, even in respect of the crucial conversation with the doctor on 12 December to be uncertain and imprecise in his responses. He said that he “thought” that he had mentioned the hip during the consultation on 12 December. He seemed far from certain. He also gave evidence of forgetfulness about a number of matters. His reference to Dr Ketheesan being always concerned about loss of weight, in respect of an explanation of what had occurred at only the second consultation with Dr Ketheesan, failed to draw a distinction between subsequent conversations which may have occurred with Dr Ketheesan, and what was likely to have occurred on only the second consultation. I was not generally impressed by the plaintiff’s evidence or his ability to accurately recall conversations or symptoms. The inaccuracy of his history to Dr Gillett compounded my concerns.
- [53]In the circumstances, whilst it is true that the plaintiff had not consulted any doctor in respect of right hip pain after 19 September 2008 up to the time of the accident, this does in my view not necessarily mean that he was symptom free. I note that he told Dr Joshi that he had severe right hip pain for three months, which would have placed the commencement of that severe pain at about the time of the accident but that he had “chronic mild to moderate pain with stiffness for a long time”. Of perhaps even greater significance is the history that he gave to his treating doctor, Dr Dalton, of a problem with his hip for many years.
- [54]It was common ground amongst the three orthopaedic surgeons that the question of whether, and if so the extent to which, any fall might have accelerated the plaintiff’s osteoarthritic condition was largely dependant upon:
- (i)The prior history of symptoms;
- (ii)The severity of the event;
- (iii)The extent to which there was onset of symptoms, and their level, after the event.
- [55]Both Dr Steadman and Dr Dalton (whose resume and evidence particularly impressed me) conceded in evidence that if the assumptions on which Dr Gillett’s subsequent opinion was based were in fact present, then the opinion Dr Gillett expressed (i.e. that the fall resulted in an acceleration of his need for the hip replacement) was a “plausible clinical scenario” (Dr Steadman) or “possible” (Dr Dalton – though he felt that, usually, a heavy fall would be required).
- [56]I do not accept the plaintiff’s oral evidence that he had significant symptoms in his right hip following any incident in which he fell at work on 9 December. In so concluding I am particularly influenced by the following:
- (i)The plaintiff made, as I find, no complaint of any such symptoms to Dr Ketheesan when he saw him on 12 and 23 December;
- (ii)The plaintiff did not take Tramadol from a stock he had at home. If he had done so –
- (a)It is likely he would have told Dr Ketheesan of this, especially when Dr Ketheesan prescribed that same drug on 10 February or at the time of his subsequent consultation on 27 February when Dr Ketheesan recorded “not better with pain killers”;
- (a)It is likely Dr Joshi would have been told of this by the plaintiff. He was instead told that his pain was “not relieved with 10-20 Pendine [sic] Forte tablets daily”;
- (iii)The inaccuracy of his history of symptoms, both prior to December 2008 and thereafter, given to Dr Gillett, particularly when compared to his concession of earlier of symptoms to both treating doctors, Dr Joshi and Dr Dalton.
- (iv)I found the plaintiff’s demeanour when giving evidence to be unconvincing, and he seemed very uncertain and imprecise about important events.
- [57]The consequences of my findings is that the assumptions which underpinned Dr Gillett’s opinion as to the acceleration of the plaintiff’s need for hip replacement surgery are not made out.
- [58]The difficulty for the plaintiff however was that as I have stated earlier I do not accept that the plaintiff suffered immediate pain from the fall, requiring him to take medication including Tramadol, and do not accept that he mentioned hip pain when he saw Dr Ketheesan during the consultation of 12 December 2008.
- [59]In that circumstance I accept the opinions of Dr Steadman and Dr Dalton set out in their reports. In particular, I note Dr Dalton was told by the plaintiff of problems with his hips “for many years” as I have previously set out. He said that when he saw the plaintiff on 25 February 2010 he was told of a “fall at work approximately two years previously and he thought this had aggravated his hip.” He said X-rays showed a “severe end stage arthritic pattern.” He says it “was noted at the time of surgery that he had a severe end stage arthritic pattern.”
- [60]Dr Dalton’s opinion, which I accept, is that the plaintiff’s history was consistent with problems with his right hip over many years, and with his more general arthritis in other joints. He said that the need for surgery arose because of his long standing hip osteoarthritis and that, if his condition was significantly aggravated by a fall on 9 December then he was likely to have sought medical assessment before he did so in February 2009, and would have complained of symptoms soon after the fall.
- [61]Whilst he conceded a fall could aggravate the plaintiff’s condition, and accelerate the need for surgery, I accept Dr Dalton’s view because of the view of the facts I have taken, that this did not occur in this case.
- [62]The initial pleading alleged that he had left “his office” and was walking to the other office when the fall occurred. I have said already that the plaintiff’s office was on the left hand side. The defendant’s counsel said, essentially, that this change involved a complete about face in the plaintiff’s own case. In my view whilst it is possible that this is the case, in my view the better explanation is that the pleading did not accurately record his instructions. In my view his evidence is consistent with the incident report, Exhibit 10, to which I have already referred. He refers to the accident occurring “near rear door of offices at other side of the workshop”. In my view, and again with some misgivings, I am inclined to accept that the plaintiff was not uncertain in his description of where the accident occurred, and that any inconsistencies in the documentation was as a result of confusion in the taking of instructions or in the drafting of the statement of claim by the plaintiff’s legal advisers. I am not inclined to think that he has entirely changed his case as Mr Myers, counsel for the defendant, submitted. Ultimately, I am inclined to accept that there was an incident in which the plaintiff fell, and that he probably slipped on oil or similar as he gave evidence of. To have allowed an employee to walk through a workshop, on which oil, grease and other similar substances had fallen from time to time as a result of the maintenance of forklifts was in my view an inappropriate system of allowing employees to walk from one office to the other.
- [63]The real concern I have with the assumptions on which Dr Gillett’s opinion is based however concerns assumptions numbered 3, 4 and 5. Consideration of these involves consideration of the plaintiff’s evidence, the evidence of Dr Ketheesan, the history in my view that he gave to Dr Gillett which was as I have said demonstrably wrong and the history of long standing symptoms he gave to Dr Dalton.
- [64]The defendant also relied on the fact that PBS documentation which was put into evidence does not disclose any completed script for Tramadol. In my view for reasons which Mr Lynch identified in his submissions I am not convinced that the PBS documentation was entirely accurate. It is surprising that it is not but in circumstances where it was only provided very late in the proceedings it does not seem to me that its accuracy or otherwise has been fully investigated or tested. In the circumstances I am not prepared to rely on it.
- [65]I do however accept the evidence of Dr Ketheesan that there was no mention of any fall or of symptoms in his right hip on 12 December. It is common ground that there was no mention of any such symptoms and the subsequent consultation of 17 December. In the circumstances the plaintiff sought no medical advice in respect of any symptoms that he was getting for a period of two months following the accident. I also do not accept that he consumed particularly large amounts of Tramadol in circumstances where there is no contemporaneous record in the period between December 2008 and 10 February 2009 of his doing so, where he did not mention that he was doing so to Dr Ketheesan at the time of the various consultations in February 2009 and where he told Dr Dalton of his taking Panadene Forte but not Tramadol.
- [66]In the circumstances I do not accept that there was a significant level of symptomology in his right hip, as a result of any fall, in December 2008. The nature of progressive osteo-arthritic conditions is that symptoms are likely to come and go. In my view it is likely that over the a period of some months prior to 10 February 2009, when he clearly had symptoms and went to Dr Ketheesan, that his symptomology had returned as a result of the degenerative condition, and not as result of the fall. His weight no doubt disposed him to such a condition, a point Dr Steadman referred to during cross-examination. In that circumstance I do not think the premise in which Dr Gillett’s opinion is based has been established.
- [67]In the circumstances, whilst I find with some reluctance that the plaintiff fell at work on 9 December 2009 as a result of the negligence of the defendant, I do not find that he suffered any consequential symptoms as a result of that fall and do not find that the fall accelerated the need for any hip replacement. In my view that negligence is established because to have required employees to walk through the workshop, without properly delineated walkways (see photos of the workshop which do not show such marked walkways) meant they were likely to, and on this occasion did, slip on spilt greasy lubricants.
- [68]In the circumstances the plaintiff’s claim should be dismissed, since he has not been able to establish any loss as a result of the fall which I found occurred.
- [69]In case I am found to be in error I will assess damages on the basis that Dr Gillett’s opinion was accepted. In such circumstances, I would assess damages as follows:
General damages $20,000
Interest (on entire sum) $1,500
Pure economic loss ($1,321/week
for 2 years) discounted by 10% $124,000
Interest thereon $16,000
Future economic loss Nil
Special damages $2,000
Total $163,500
- [70]I will hear argument as to costs.
Footnotes
[1] The notes actually contain a transposition error, recording his height as 126 cm and weight as 177 kilograms. In evidence Dr Ketheesan conceded this obvious juxtaposition was an error.