Cumming v Specialised Training Services (Qld) Pty Ltd

[2000] QDC 428

[2000] QDC 428

IN THE DISTRICT COURT

HELD AT SOUTHPORT

QUEENSLAND  NO. 134 of 1999

BETWEEN                IAN DOUGLAS CUMMING

Plaintiff

AND  SPECIALISED TRAINING SERVICES (QLD)
  PTY LTD  (ACN 071 250 612)

Defendant

REASONS FOR JUDGMENT – HANGER D.C.J.

Delivered on the   day of  2000.

The plaintiff, a 52 year old male, claims damages for personal injuries sustained “as a result of the defendant’s negligence and/or breach of implied term of contract and/or breach of statutory duty”.   Although the pleadings were drafted by his then legal advisors, they were subsequently given leave to withdraw and the plaintiff was unrepresented at the trial.

Some time prior to the incident which gives rise to the claim the plaintiff had been receiving unemployment benefits.   As a result of his long term unemployment he was directed by C.E.S. to attend a training course which would give him further qualifications.   It was held at the Currumbin Air Sea Rescue building.   The course was five days per week for six months for which the plaintiff was receiving a gross income of  $315.00  per week.    The course operated by the defendant apparently involved aspects of nursing and learning to handle and care for patients at nursing homes.   One of the pieces of equipment used in the course of training was a “Henry hoist” designed for moving patients.     The hoist consists of a trolley which includes a movable horizontal arm which can be raised or lowered.   From this arm the patient is suspended in a full body sling which can be maneuvered under patients lying in bed so they can be moved.

At the time of the incident the plaintiff was acting as the patient.   He had been placed in the sling which had been attached to the hoist and was wheeled out of the building to a concrete path adjoining the building.   

The plaintiff’s evidence as to precisely how the incident happened is vague.   However, it appears that in the course of being wheeled along the concrete path the trolley overturned and he fell to the ground.    He suggests either that there was some defect in the trolley or that it was handled negligently.    Apart from the plaintiff himself two other witnesses, called by the plaintiff, gave evidence relevant to liability.   Neither saw the plaintiff fall as they arrived on the scene some ten seconds or so afterwards.   Rebecca Gardner was also a student at the course and gave evidence that a few days earlier she herself had fallen but the circumstances surrounding this incident are not sufficient to enable any conclusions to be drawn about liability in the present case.

Miss Mahoney, a witness called on behalf of the defence, was also an eye witness to the incident.  She was in a group of three which included the plaintiff and a Mr Young, who did not give evidence.   She agreed that the plaintiff was placed in the sling and attached to the hoist inside the building.  He was then wheeled outside by Young with Mahoney walking beside the hoist.   When the trolley was being wheeled along the concrete path the plaintiff, according to Mahoney, was pushing his feet against the upright pole of the hoist and causing his body to swing in the hoist.   She warned him not to continue doing this as the hoist would tip.   It did, tipping sideways with the plaintiff in it.   I accept the evidence of Mahoney where it differs from that of the plaintiff.   Consequently I accept that this is how the incident occurred and that it was caused solely by the plaintiff’s own conduct.   There was no fault or breach of duty by the defendant.  Consequently, the plaintiff’s claim must be dismissed.  

I am satisfied that the plaintiff received only very minor injuries, if any, as a result of the incident.   He claims that he sustained injury to his back and neck.   However, he appeared to be prone to gross exaggeration and I am satisfied that any pain and discomfort resulting from the accident was minimal and that the major part of any discomfort in this respect was as a result of a pre-existing degenerative condition caused by an earlier injury.   This is the conclusion of Doctor Downes.    In the course of his report dated 29 July 1996 Doctor Downes made the following comments:-

“……… I cannot find anything wrong with this man.   There is nothing to indicate that he has a back problem in any way.   Anyone with a back problem could not do the things he demonstrated so willingly to me today, even if he demonstrated them by pure accident.

“Clinically there is nothing to demonstrate that there is anything wrong with his back and the only radiological findings are consistent with deep degenerative change and this in turn is consistent with his age.

“I believe a psychiatric assessment of this man is in order.

“From an organic point of view I believe there is nothing seriously wrong with his spine.   He has not damaged his spine and the patient as he presents today is capable of work without restriction.”

I prefer to accept the opinion of Doctor Downes where it differs from the evidence of Doctor McDowall, a chiropractor, and Doctor Hale, an osteopath.  

A video tape showing the plaintiff engaged in various forms of relatively strenuous physical activity such as jogging and bending was recorded in August 1999.   It suggests that any disability along the lines suggested by the plaintiff is very minimal, if any exists at all.   I am not satisfied his ability to work in such employment as he has been engaged in in the past, or in such employment as he hopes to undertake in the future has been affected by the incident in question.

The plaintiff, at the time of the incident, had been unemployed except for some occasional casual work, for some years before.     This was apparently the reason for his being directed to undertake the course for which he was apparently quite unsuited.  He has worked very little since the incident but I do not accept that this failure to work is in any way attributable to any injury he received in the incident.    I am not satisfied that he has suffered any economic loss as a result of the incident.

The bulk of the plaintiff’s claim for special damages is for visits to a chiropractor.  However, he had been visiting a chiropractor for many years prior to the incident, for “maintenance” as he puts it, and there has been no noticeable increase in the number of visits since the incident.

I have come to the conclusion that any damage sustained by the plaintiff as a result of the incident is very minimal and certainly would not exceed the amount of the Workers Compensation payments he has received, namely $9,666.30.  

Judgment will be entered for the defendant with costs to be taxed.