Gippel v The State of Queensland

[2005] QDC 38

DISTRICT COURT OF QUEENSLAND

CITATION:	Gippel v The State of Queensland [2005] QDC 038
PARTIES:	DEBBIE GIPPEL plaintiff v THE STATE OF QUEENSLAND defendant
FILE NO/S:	243/04
DIVISION:	Civil
PROCEEDING:	Claim for damages for personal injury
ORIGINATING COURT:	District Court Maroochydore
DELIVERED ON:	4 March 2005
DELIVERED AT:	Brisbane
HEARING DATE:	31 January and 1 February 2005
JUDGE:	Samios DCJ
ORDER:	Judgment for the plaintiff against the defendant for the sum of $95,926.38
CATCHWORDS:	NEGLIGENCE – dangerous premises – occupier’s liability – fracture coccyx - quantum   Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 FAA Griffin v Coles Myer Limited (1992) 2 Qd R 478 FAA
COUNSEL:	Mr Grant-Taylor SC Mr Fitzpatrick
SOLICITORS:	Schultz Toomey O’Brien for the plaintiff Tress Cox for the defendant

1. The plaintiff’s claim against the defendant is for damages for personal injuries and consequential loss and damage caused by the negligence of the defendant, its servants or agents.

1. The plaintiff is a female born 19 May 1970.

1. There is no dispute between the plaintiff and the defendant that the defendant (the hospital):-

(a)        was the occupier of the Nambour General Hospital;

(b)        was responsible for the care, upkeep and maintenance of the hospital;

(c)        was responsible for the safety of patients at the hospital;

(d)        owed a duty of care to persons, of which the plaintiff was one, at the hospital;

(e)        employed staff at the hospital for which the defendant was responsible.

1. Further, there is no dispute between the plaintiff and the defendant that at or about 6.30 am to 7 am on 17 August 2002 (the date of the accident) the plaintiff was an in-patient in the maternity ward at the hospital.

1. The plaintiff claims that at or about 6.30 am to 7.00 am on the date of the accident, the plaintiff was walking along a corridor at the hospital towards a shower facility when she slipped and fell (the fall).  The plaintiff alleges that as a result of the fall she suffered these personal injuries:-

(a)        injury to back;

(b)        fracture of the coccyx;

(c)        injury to left knee.

1. Although the plaintiff claimed in her Statement of Claim she injured her left knee, at the trial the plaintiff claimed she injured her right knee.

1. When the plaintiff gave evidence she said she gave birth to a daughter, Cody at the hospital on 19 September 1991.  About two years later she returned to work.  The plaintiff fell pregnant and gave birth to a son at the hospital on 13 August 2002.  Although the plaintiff required a lot of stitches on the birth of her daughter she recovered from the stitches and returned to normal health.  The plaintiff described the birth of her son as a ‘beautiful pregnancy”.  She said she probably had just very fat feet.  She also described the pregnancy with her son as being “fantastic”.  She had no pain in her tailbone in the lead-up to the birth of her son.  Following the birth of her son she said she was a bit sore in the obvious places.  Both pregnancies led to vaginal delivery.  She said that there was some stretching with the birth of her son.  However, she did not have any low back pain following her son’s birth.  Her son though was ABO jaundice and he required admission to the Special Care Unit. 

1. The plaintiff said on 17 August 2002 she had finished feeding her son and returned to her room.  As she did not have her baby with her she said she felt a bit lost so she gathered up her shower things and a towel and decided to go and have a shower.  When she had walked from the Special Care Unit down the corridor to her room she did not notice anything on the floor.  She had no trouble maintaining her footing in the course of that walk back to her ward.  She was not sure of the time but it may have perhaps been 15 minutes when she decided to go and have a shower.  She said it was very dark in there so she took her time and was trying to be quiet because of the other mothers.  She said the lights were very dim.  Everyone was asleep.  She came out of her room and turned right.  She was walking down towards the shower just thinking about her baby.  She thought she took five to seven steps.  She had not reached the shower door on her right and she slipped and fell.  At the time she did not know what she had slipped on but her knee was wet and all she knew was that she was in a lot of pain and she called out.  She gained her composure and went to the nurses station.  She said that she told the persons at the nurses station that she had fallen and had hurt her knee.  The plaintiff recognised one of the nurses as having been one of the nurses who had assisted her with her son when he had a seizure.  This nurse came back to her room and spoke to her.  She said this nurse had told her that the fluid was on the floor and that a cleaner had a hole in his bag and that something seeped out of that.  She said this nurse had told her that wet signs had been put in place which were noticed by the plaintiff later when she went to have her shower.

1. The plaintiff said when she was discharged from hospital she limped and she was sore in her back and in her leg.  She had extreme pain.  The pain in her back was at the very bottom of her back.  She needed assistance from her mother for three to four weeks and thereafter her 11 year old daughter had to give her assistance with basically everything.

1. Regarding the plaintiff’s claim to have injured her back and fractured her coccyx Dr Day, an orthopaedic surgeon, in his report dated 29 October 2003 refers to the radiological evidence.  Dr Day says the plain radiographs of the coccyx taken 29 January 2003 demonstrate forward displacement of the second on the first coccygeal segment, consistent with an injury through the segment.  Those taken on 3 October 2003 of the sacrococcygeal spine demonstrated a healed fracture through the tip of the sacrum and similar coccygeal displacement.  Dr Day diagnosed a healed fracture of the sacrum and possible subluxation of the first and second segments of the coccyx.  In his opinion the signs and symptoms which the plaintiff demonstrated in the coccyx were consistent with the fall.  As she denied any previous problems he believes that her current signs and symptoms are attributable to the fall in August 2002.

1. When Dr Day gave evidence he accepted that the “real question” was did the plaintiff have a fracture of the sacrum and coccyx from the birth of her son Kyle on 13 August 2002 or from the fall.  Dr Day like Dr Steadman, was unable to dissociate the causative potential of the birth of her son Kyle with that of her reported fall.  Dr Day accepted that the signs and the symptoms which the plaintiff demonstrated in the coccyx were consistent also with her having given birth three days before the fall.  However, he said that what he was saying in his evidence is that he has given the plaintiff the benefit of the doubt.

1. In Dr Steadman’s report dated 17 January 2005 he states that the plaintiff would appear to be suffering from coccydynia.  This is a condition of a painful coccyx (tailbone) at the bottom of the spine which causes mechanical discomfort with sitting.  In his opinion there are several issues of etiological importance which had not been addressed and raised the question whether it is related traumatically to childbirth or to her fall.  He refers firstly that there are no clinical notes supportive of the plaintiff’s complaint.  Secondly, a review of the X-rays three months after and about one year later showed changes that are present often in the coccyx and the radiology reports are not necessarily helpful for the reasons expressed by him in his report.  In his report he refers to information in regard to coccydynia, noting that it is a condition which is endemic in women and either post-traumatic and/or obstetric and vaginal delivery are of the most common causes of it.

1. When Dr Steadman gave evidence he was asked to assume that the plaintiff had fractured her sacrum and was asked what his opinion would be regarding pain in that region.  In his answer he stated he could find no evidence of clinical notes that the plaintiff was suffering from any acute discomfort on or about 17 August and even through to clinical notes towards the end of August there were no complaints about that and he would be very surprised if the plaintiff had suffered a fractured sacrum at that time.  He referred to a person fracturing his coccyx being barely able to sit down.  Further, he said in terms of logic that the expectation is in the same way that if a patient suffers a broken arm or a broken limb that there is an acute period where there is an associated haemorrhage and soft tissue damage that causes exquisite pain.  He refers to a person literally being unable to sit down.  Dr Steadman considered there is a great deal of uncertainty.  He said there were two events which potentially could predispose her to coccydynia.  One is childbirth and the other is presumed injury.  He considered the weakness in the plaintiff’s claim to be that the symptoms at the time of injury were not there. 

1. When cross-examined Dr Steadman accepted that he had never seen the plaintiff, had never examined her and he had never taken a clinical history from her.  Later in his cross-examination he accepted that if it was accepted the plaintiff had an excellent recovery from the birth of her son and had no suggestion of pain in the coccygeal region or in the region of the tailbone and that was how she was until 17 August when she fell and when the symptoms of pain in the coccygeal region came on it was reasonable to connect the onset of the coccygeal pain to the fall.

1. Jennifer Maskell, a registered midwife with the hospital also gave evidence.

1. Sister Maskell identified photographs that had been identified by the plaintiff as depicting the relevant areas of the hospital.  Sister Maskell also verified an evacuation layout floor plan of the relevant areas of the hospital.  By consent the defendant’s written protocols for cleaning spills of body substances, damp mopping of floors, risk management of slips, trips and falls and hazard management were also tendered as exhibits. 

1. Sister Maskell has nearly 27 years experience working as a registered mid-wife at the hospital.  In the 2002 calendar year she did a 40 hour week working the morning, afternoon and night shifts depending on her roster.  She said that cleaners work in the relevant ward between 6.00 o’clock in the morning until 2.30 pm in the afternoon seven days a week.  Also wards men would come and do heavy cleaning such as using the polishing machine on the floors.  Sister Maskell said visiting hours were between 11.00 am until 12.30 pm and 4.00 pm until 8.00 pm but fathers were basically allowed into the ward at any time.  That was sought to be restricted by requiring their attendance between 8.00 am in the morning until 9.00 pm at night otherwise it was too early before 8.00 o’clock and breakfast and everything going on and 9.00 o’clock the mums need to go to sleep.  She said that visitors were not admitted to the ward between 6.00 and 7.00 in the morning.  She also referred to the circumstance of flowers being present in the ward and the water being changed.  Sister Maskell also gave evidence of spillages occurring on the floors in the ward.  She said there were two sorts of spillages.  One when they fill up the bath and the other was blood spillage.  All these spillages are required to be wiped up and dried. 

1. Sister Maskell gave evidence that she completed an incident report form because the plaintiff had had an injury in the corridor and that it is a requirement that they write out these documents for any person who has any untoward injury in the ward.  She said that she was sitting at her desk and she was not sure if it was a cleaner or someone, came up to her and said “Mrs Gippel had fallen over”.  She said she went to see the plaintiff, then came back down to the desk and rang the doctor and told him about the fall and he came and saw the plaintiff.  She said there was nothing recorded by her about pain or any injury to the plaintiff’s coccyx in her note about the incident.

1. When she gave evidence Sister Maskell did not accept that the plaintiff reported the incident to her.  Sister Maskell said it was told to her and then she went up and checked it out.  Regarding the plaintiff’s evidence that a member of the staff, presumably Sister Maskell, told her there was a hole in the bag of one of the cleaners and it had been cleaned up, she could not recall saying that to the plaintiff.  Regarding who told who what, she accepted she may have said that to the plaintiff but did not recall saying it.  She accepted that the incident report form refers to the incident occurring at 6.54 and that it was reported at 6.55.  She accepted it was a fair assessment that there was only a minute or thereabouts elapsed between the plaintiff’s fall and the point in time it was reported.

1. Sister Maskell also accepted that the description in the incident report form “walking along corridor” was some information she would have got from the plaintiff.  She accepted the plaintiff also would have provided her with the information that appears in the incident report form “slipped on water and fell over”. 

1. Dr Kuehnast also gave evidence.  Her enquiries were unable to reveal the name of the wards man referred to in the incident report form.

1. Elisha Hart, an operational officer at the hospital, also gave evidence.  She performs general cleaning duties at the hospital and is familiar with the relevant ward.  She confirmed that she was given training by the hospital as to how to go about her job.  She has frequently seen the protocol documents and said they were in all the cupboards and on the cleaning trolleys.  One of the documents concerns damp mopping of the floors.  She said that floors are mopped from the start of 6.00 o’clock and they mop floors until 9.00 o’clock, then they do the showers and toilets and horizontal surfaces from probably 11.00 o’clock onwards.  She recognised the items in Exhibit 8.  She said they firstly start to use a dry mop and then move to a wet mop and bucket and they wring it out thoroughly so the floor is not too wet.  They use a cleaning agent as well.  She said she puts out the signs indicating the wet floor when she commences the dry mopping.  That is to notify everyone that the floor is going to be wet and take caution.  She said it was their policy to put these signs out.

1. Finally, Juli Bamber an operational officer at the hospital also gave evidence.  She worked in the relevant ward between 6.00 am until 2.30 pm on a seven day roster.  She said the lights come on about 6.30 am.  Prior to that time just night lights are normally on.  She said the trolley for cleaning is not used in the morning.  It is when they start to clean the bathrooms that they need to use the trolley.  She also confirmed the putting out of the wet floor signs usually 6.30 am to 7.00 am depending on what they have done beforehand.

1. I was favourably impressed by the plaintiff.  I consider the incident report form is consistent with the plaintiff’s claim to have fallen at the place and at about the time and date alleged.  I accept the plaintiff’s evidence.

1. The question that arises is, whether in all the relevant circumstances including the fact of the defendant’s occupation of the premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff, and if so, whether that duty has been breached (Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Griffin v Coles Myer Limited (1992) 2 Qd R 478 per Williams J (as his Honour then was) at 481.

1. There being no issue that there was a duty of care, the issue is whether there has been a breach of the duty of care.

1. I find between 6.30 am and 7.00 am on 17 August 2002 the plaintiff made her way on foot from her room along the corridor servicing the wards at the hospital in the general direction of the nurses station with a view to take a shower.  Further, the plaintiff had only taken between five to seven steps from the doorway to her room when she stood on some liquid causing her to slip and lose her footing causing her to fall to the floor landing on her bottom.

1. I find that the liquid deposited on the floor was more than a minor amount.  As I accept the plaintiff’s evidence I find this liquid was all along the corridor.  Further, Sister Maskell told her the liquid had come from a leaking bag being carried by a cleaner.  Therefore, I find an employee of the hospital staff allowed or permitted the liquid to be on the floor and was of such a quantity to be seen or ought to have been seen.  I find the liquid on the floor constituted a hazard to someone who might be using the corridor at that time of the morning at the hospital.  I find the liquid on the floor was not removed by the defendant’s servants or agents before the plaintiff fell and that the defendant’s servants or agents ought to have removed the liquid or placed the usual warning signs in the vicinity of the liquid.

1. Therefore, I am satisfied on the balance of probabilities the defendant by its servants or agents breached the duty of care owed to the plaintiff.

1. I find the plaintiff started to suffer symptoms after the fall and that those symptoms were caused by the fall rather than the vaginal delivery of her son.

1. Regarding the plaintiff’s personal injuries, I find in the fall the plaintiff suffered an injury to her back, a fracture of the coccyx and an injury to her right knee.

1. The plaintiff is 34 years of age.  I find the plaintiff’s coccygeal pain has improved considerably although the plaintiff still has problems when sitting on it and has intermittent pain in the right knee when kneeling on it.   I allow for damages for pain and suffering and loss of amenities of life the sum of $30,000.00.

1. I allow interest on the sum of $10,000.00 of the damages for pain and suffering and loss of amenities of life at 2% pa for 2.4 years which is a sum of $508.00.

1. I accept the plaintiff would have wanted to return to work, because of her circumstances, after a period of six months following the birth of her son.  I consider the plaintiff to be well motivated to find work.  However, I do not accept the plaintiff would have found work immediately she wanted to return to work.  The plaintiff’s average net weekly earnings from personal exertion during the four financial years from 1998-1999 to 2001-2002 is $177.50 per week.  I allow the plaintiff 1.5 years of past economic loss.  This is a sum of $13,845.00.

1. I allow interest at the rate of 2.7% pa on the sum of $13,845.00 for 1.5 years which is a sum of $560.72.

1. I allow past loss of superannuation benefits at 9% pa which is the sum of $1,246.05.

1. I allow interest at the rate of 2.7% per annum on the sum of $1,246.05 for 1.5 years which is the sum of $50.46.

1. The plaintiff does not claim nor does the evidence support a finding that the plaintiff is permanently disabled from work of all kinds.  I accept the plaintiff is genuine about her symptoms and is a well motivated person likely to find some work.  However, as her symptoms have improved according to Dr Day and Dr Steadman I consider only a global sum can be allowed for future economic loss.  Using $177.50 net per week discounted at 5% per annum over a four year period this is a sum of $33,547.50.  Discounted by 25% for contingencies this is a sum of $25,160.61.  I allow on a global basis, for future economic loss, the sum of $25,000.00

1. I allow future loss of superannuation benefits at 9% per annum which is the sum of $2,250.00.

1. I allow the plaintiff the sum of $15,000.00 for past Griffiths v Kerkemeyer damages.  This is calculated in respect of care and assistance valued at an average of $210.00 per week being two hours per day at the agreed rate of $15.00 per hour over 1.5 years.  The 1.5 years between the date of the accident to the date of judgment is a period discounted to reflect any incidence of doubling up in respect of services which would have been rendered in any event and the reducing need the plaintiff has in my opinion had since the date of the accident.

1. I allow interest at the rate of 5% per annum on the sum of $15,000.00 of the past Griffiths v Kerkemeyer damages over 1.5 years which is the sum of $1,125.00.

1. For future Griffiths v Kerkemeyer damages as the plaintiff’s symptoms have improved considerably and the pain in her knee is intermittent, I consider her needs will be far less in the future than her needs have been to date.  I allow the plaintiff $5,000.00 for future Griffiths v Kerkemeyer damages.

1. For the agreed medical expenses I allow the sum of $326.00.

1. For agreed special damages I allow the sum of $950.00.

1. I allow interest on the past special damages being $950.00 for 2.54 years at the rate of 2.7% per annum which is the sum of $65.15.

1. Therefore, the total damages inclusive of interest is the sum of $95,926.38.  I give judgment for the plaintiff against the defendant for the sum of $95,926.38.

1. I will hear the parties on the question of costs.