Hyde v State of Queensland

[2013] QDC 268

DISTRICT COURT OF QUEENSLAND

CITATION:

Hyde v State of Queensland [2013] QDC 268

PARTIES:

GARRY RAYMOND HYDE
(Plaintiff)
v
STATE OF QUEENSLAND
(Defendant)

FILE NO:

3336/10

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

October 24, 2013

DELIVERED AT:

Brisbane

HEARING DATE:

October 21-22, 2013

JUDGE:

Koppenol DCJ

ORDER:

Action dismissed. I will hear the parties as to costs.

CATCHWORDS:

DAMAGES – PERSONAL INJURIES – plaintiff hospital wardsman – assisted in lifting patient without lifting device –  felt pain in left shoulder in process – suffered heart attack following night –  history of angina – whether heart attack caused by lifting patient

COUNSEL:

Plaintiff appeared on his own behalf
A S Mellick for the defendant

SOLICITORS:

Plaintiff appeared on his own behalf

Kaden Boriss Brisbane for the defendant

Background

1. Garry Raymond Hyde claims damages for personal injuries. He worked as a wardsman at Princess Alexandra Hospital, Brisbane. During nightshift on July 14, 2007 he assisted another wardsman in physically lifting a heavy patient from the hospital floor up onto a trolley. In the process, he felt some pain in his left shoulder. About 27 hours later (on July 15) when he was asleep at home, he suffered a myocardial infarct and was hospitalised later that morning.

1. Mr Hyde did not report the lifting incident for almost 3 months, when he applied for workers’ compensation. In his claim now before the Court, he says that (a) the heart attack was caused by his having to lift the patient without the use of a lifting device, (b) the non-provision of which constituted negligence and/or breach of his contract of employment, and (c) as a result, he is entitled to damages of $224,716.68 (which were particularised).

1. Both liability and quantum were in issue at the trial.

1. Mr Hyde had legal representation from 2010 (when the proceedings commenced) until late 2012––after which he decided to represent himself. As it transpired, he was the only witness (lay or medical) for his case at the trial.

Causation

1. Unless Mr Hyde can establish on the balance of probabilities that his heart attack at home was caused by the lifting incident at work the previous day, questions of (a) alleged negligence or breach of contract and (b) the quantum of damages, do not arise.

1. In determining that threshold issue, the Court is of course limited to an analysis of the evidence which the parties have submitted.

1. Mr Hyde complained during final submissions that Defendant had not called a particular medical witness who had provided a report upon which Mr Hyde wanted to rely. However, Mr Hyde told Defendant’s lawyers in March 2013 that he intended using that report (and others) at the trial and Defendant’s lawyers responded in May 2013 by telling Mr Hyde that once the trial dates had been allocated:

“… it is appropriate that the relevant lay and medical witnesses be put on notice that they will be required to give evidence in this matter, preferably in person.”

1. Defendant’s lawyers repeated that comment to Mr Hyde in June 2013, after the trial dates had been allocated.

1. Mr Hyde did not attempt to arrange for that particular medical witness to be present at the trial. That witness’ report did not form part of the evidence before the Court as its proposed tender by Mr Hyde was opposed by Defendant. A party to civil litigation is entitled to object to the tender of a medical report by a witness who is not present at the trial. The Court has not seen, and cannot speculate about the contents of or any expressions of opinions in, the medical report that Mr Hyde sought to tender.

1. Only 2 medical reports (dealing with the threshold issue) were tendered by the parties. Dr Steven Goode (consultant occupational physician) said that:

“The 27-hour delay between the claimant’s reported manual lift at work and the onset of this particular episode of significant chest and left arm pain means that there’s no significant link between the lifting incident at work on 13-14/07/07 and this particular episode on 15/07/07.”

And:

“… the only work-related injury occurred by the claimant on 13-14/07/07 in the course of the manual handling incident at work was a very mild, single episode of angina, which settled within a matter of minutes of that event. That particular episode of mild angina was insufficient to prevent the claimant completing his normal shift that day, and engaging in his normal activities the following day i.e. there was no incapacity for work following the manual handling at work on that night shift.

The claimant’s cardiac condition is wholly attributable to his underlying, constitutional, longstanding coronary artery atherosclerotic plaque. The claimant’s cardiac treatment (hospital admissions, angiography, investigations and ongoing medical therapy) wholly relates to his underlying coronary artery atherosclerotic plaque condition, and not specifically the effects of the lifting incident at work on 13-14/07/07.”

Dr Neville Blomeley, FRACGP, said that:

“Lifting the patient may be a contributing factor to the onset of angina, but obviously his other risk factors are much more important. There could be some justification in stating that the episode of lifting may have dislodged some plaque which has caused the onset of angina and symptomatic coronary artery disease. However, if there was a gap of some 27 hours, this would make the episode of lifting as a pre-existing cause unlikely.”

1. No reason was advanced by Mr Hyde as to why I should not accept those opinions––and there is no reason in my view why I should not accept them.

Findings

1. Based upon those opinions, I find that (a) Mr Hyde experienced a mild single episode of angina during the lifting procedure on July 14, 2007, (b) that episode settled within minutes, (c) it is unlikely that the lifting procedure caused the myocardial infarct which Mr Hyde suffered 27 hours later on July 15, and (d) Mr Hyde’s subsequent cardiac treatment wholly relates to his pre-existing coronary artery atherosclerotic plaque condition.

1. As Mr Hyde cannot establish that it is likely that the lift caused his myocardial infarct on July 15, 2007, it follows that the Court cannot accept Mr Hyde’s claim.

1. Whilst I do not doubt that Mr Hyde genuinely believes that the lift caused his heart attack, that issue is inherently one for the Court, based upon expert (and not lay) opinion. Mr Hyde said that there were various doctors who supported his opinion on causation, but he did not call any of them as witnesses. In the circumstances, the Court cannot act on Mr Hyde’s evidence when there was contrary, tendered medical evidence.

Observations on Liability & Quantum

1. Because Mr Hyde’s claim fails, it is not necessary to give detailed consideration to his allegations of negligence or beach of contract, or indeed quantum. However, some general observations may be made.

1. Even if a lifting device were not available at that part of the hospital at the time that Mr Hyde says that he was requested by a doctor to assist in lifting the patient:

·     the situation was extremely urgent because of the patient’s grave condition and the need for a doctor to immediately administer treatment to him;

·     in any event, setting up a lifting device for use would take some time but time was of the essence as the patient was turning blue/purple;

·     the “top and tail” lifting method was a recognised technique for which Mr Hyde had been trained and which he knew how to perform and which he performed properly;

·     Mr Hyde had never previously had cardiac symptoms and the hospital was not (and could not have been) aware of his underlying condition.

1. In those circumstances, I am unable to see how it could be concluded that Mr Hyde had established that the hospital (and therefore, Defendant) had been negligent or breached any contractual obligation.

1. But even if liability had been established, the quantum of damages that might have been awarded would have been of very modest scope only.

1. Mr Hyde turned 56 years of age only weeks after his heart attack. He suffered from numerous longstanding risk factors: hypertension, plaque in his cardiac arteries, sleep apnoea and obesity; he was also previously a heavy smoker. Mr Hyde resumed his normal duties at work after a stent was inserted a few weeks after his heart attack. He then remained essentially symptomless (according to the medical records) and resigned from the hospital in early 2010. He gave evidence that he still experienced angina episodes and that his heart condition was a contributing factor (with his degenerative arthritis) in his resignation––but none of the contemporaneous medical or employment documentation mentions that factor.

1. A small amount of general damages (say, $2,500 + $312.50 interest) could have been made as compensation for the triggering event (the lift which caused some angina) and its limited after-effects. Of course, Mr Hyde would not have received damages for his longstanding underlying cardiac condition, which on any view was not caused or contributed to by his work at the hospital. In addition, I would have allowed $2,010.81 for special damages and, say, $500 as a global sum for travelling expenses for treatment, plus interest. I would also have allowed $1,939.11 for past economic loss (3 weeks at $646.37 net per week) and $174.52 for past superannuation. Thus, the gross damages would have totalled $7,436.94––and after deducting the WorkCover refund ($2,010.81), Mr Hyde’s net damages would have been $5,426.13.

Disposition

1. Mr Hyde’s claim fails. His action against Defendant is dismissed. I will hear the parties as to costs.