Mather v Minister for Health
[2004] WADC 46
•4 FEBRUARY 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MATHER -v- MINISTER FOR HEALTH [2004] WADC 46
CORAM: FRENCH DCJ
HEARD: 3-4 FEBRUARY 2004
DELIVERED : 4 FEBRUARY 2004
PUBLISHED : 12 MARCH 2004
FILE NO/S: CIV 1835 of 2001
BETWEEN: LIAM MICHAEL PAUL MATHER
Plaintiff
AND
MINISTER FOR HEALTH
Defendant
Catchwords:
Negligence - Breach of statutory duty - Personal injuries - Turns on own facts
Legislation:
Occupiers' Liability Act 1985, s 5
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff: In person
Defendant: Mr P D Quinlan
Solicitors:
Plaintiff: In person
Defendant: Blake Dawson Waldron
Case(s) referred to in judgment(s):
McLachlan v Purchas & Ors, unreported; FCt SCt of WA; Library No 980749; 21 December 1998
Case(s) also cited:
Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542
Gondoline Pty Ltd v Hansford [2002] WASCA 214
Ryan v Electricity Trust of South Australia (No 1) (1987) 47 SASR 220
FRENCH DCJ: The plaintiff is a 50 year old man who is seeking damages from the defendant for injuries he says he received as a result of a fall at premises occupied by the defendant on 5 August 2000. Prior to that fall he had been involved in a number of other accidents including motor vehicle accidents. In 1993 he sustained a fracture of the right femur which was again fractured following a further accident in 1985. As a consequence of those accidents the plaintiff was left with a deformity in his right leg. In 1997 he was knocked off a bicycle by a motor vehicle and subsequently suffered from recurrent dislocations of his shoulder. He has been on an invalid pension since 1986 apparently because of these disabilities.
In July 2000 the plaintiff was admitted to Royal Perth Hospital for correction to the deformity to his right leg. He was transferred to the Royal Perth Rehabilitation Hospital at Shenton Park following his operation. On 5 August 2000 he was ambulatory on crutches and while he was walking outside his ward on a covered walkway he slipped and fell.
The pleadings and issues
The plaintiff's statement of claim alleges that his fall was a result of the defendant's negligence and/or breach of statutory duty in failing to ensure that the concrete walkway was safe. In par 3 of the statement of claim the plaintiff alleges that a gutter in the roof of the walkway was leaking causing water to splash onto the walkway. He said that he changed course to avoid the water and in doing so his right crutch slipped on sand on the concrete causing him to fall. The statement of claim alleges that as a result of that fall the plaintiff sustained soft tissue injuries to his cervical spine and knee as well as a tearing of tendons in his right shoulder superimposed over a soft tissue injury and in addition jarred his back.
The defence does not admit that the injury occurred as described by the plaintiff and denies any negligence or breach of duty. The defendant disputes that the plaintiff sustained anything other than minor injuries as a result of the fall. The defendant claims that the injuries and symptoms that the plaintiff complains of are the result of pre‑existing conditions caused by the earlier accidents referred to above.
The evidence
The plaintiff was self‑represented. Although that caused him some difficulty in presenting his case and adducing evidence I am satisfied that he was not materially disadvantage as a result of that. The defendant's counsel and the Court allowed the plaintiff significant latitude in the manner in which he was allowed to conduct his case. The plaintiff stated that he had been on an invalid pension since 1985/1986 following a motor vehicle accident in 1985 when as a pedestrian he was hit by a motor vehicle. He stated that as a result of some errors in his medical treatment thereafter his right leg had a bow in it which meant that it was shorter than his left leg. He stated that he was originally on sickness benefits but that was then transferred to an invalid pension. Prior to that he had worked in the building industry and had done roof carpentry and framing. He described an earlier accident in 1973 when he sustained head injuries but he explained that he had made a good recovery.
In 1997 he was riding a bicycle when he was hit by a motor vehicle and fractured the fibula of his right leg. He stated that after that accident he experienced shoulder problems.
Mr Mather stated that he first saw Dr Sneddon about his shoulder problems in April 2000 and had an operation on his shoulder. However, he stated that he had made a good recovery from the operation and did not have any problems with his shoulder just prior to his fall in August 2000. He explained that the fact that he was able to use crutches easily confirmed that his shoulder was not causing him any difficulties.
Mr Mather stated that he was admitted to Royal Perth Hospital on 28 July for operative procedures to correct the deformity in his right leg. This involved the use of a Ilizarov frame to correct the bowing of the leg. He stated that a few days after the operation he was transferred to Shenton Park and was encouraged to get around using crutches. He was in Ward 9 and was in the habit of walking outside the ward onto a covered walkway between Wards 9 and 10. He explained that the walkway had a roof but no side coverings so that rain could get onto the concrete surface. He produced photographs that were taken in November 2000 shortly after his fall and further photographs taken in November 2003 following some alterations to the surface of the walkway.
Mr Mather described his fall in the following terms. He said that he left the ward and went outside onto the walkway at approximately lunch time. He explained that the purpose of his going outside was to have a cigarette and also to have a change from being in the ward. He stated that because of the wind and rain and the leaking gutter sand had somehow splashed up onto the concrete surface. He also stated that the quality of the crutches that he was using was poor as there was insufficient rubber to provide good traction. He said that he was on the left hand side when the tip of his right crutch slipped on sand that was on the walkway. His injured leg collapsed on him and he went forward outstretched onto the concrete. He said that his hand struck the concrete causing an abrasion on his left wrist. He said he lay there in what he described as immense pain from his leg. As he explained and as the photographs indicate the metal frame that was placed around his leg at knee height contained pins holding the frame to his leg. Mr Mather stated that another hospital inmate called Richard was in the walkway and he called out for help. He said that two male doctors came out and they lifted him up. He stated that the manner in which they helped him to his feet caused a further injury to his spine. He was then placed in a wheelchair and taken back to the ward and given a painkilling injection. Mr Mather stated that following his fall his leg, neck, back and shoulder were extremely painful although the neck was the worst. He stated that x‑rays were taken of his leg and he was advised that they did not reveal any injury. However, he considered that they should have taken x‑rays of his neck and shoulder, however, this was not done and none of the medical professionals seemed interested in doing anything about that. He stated that he was always complaining to Mr Sneddon but he was advised that there was nothing wrong with his shoulder and neck. Mr Mather stated that x‑ray or ultrasound reports that he has had access to do indicate that there was a tear to a tendon in his shoulder, but he maintained that Mr Sneddon and other health professionals kept that information from his because they did not wish to accept responsibility for his injuries.
Mr Mather stated that he remained in hospital until January 2001 as a result of infections that he claims he caught as a result of negligent injections. He stated that during that time he was using a wheelchair rather than crutches and continued to experience symptoms of pain in his leg and his neck and shoulder and back that he claims were caused by his fall. He stated that the frame was taken off his leg in April 2001 but his symptoms have persisted. He complained of grating and cracking in his right knee that causes him to put additional pressure on his left knee. He states that his shoulders continue to be painful and he wears a sling to relieve the pain. He stated that although his back is chronically painful his worst symptoms come from his neck and he is forced to wear a collar quite frequently. He said that his symptoms are treated by significant use of medication and he also goes to physiotherapy or chiropractic therapy twice a week. He stated that that is arranged through his church and he does not have to pay for that therapy. He stated that the painkillers he receives are prescribed for him by his general practitioner, Dr Jennifer Knight.
Mr Mather stated that although he had been on an invalid pension since 1986 he had intended to attempt to obtain work as a care assistant in a hospital and claimed that he would have been in a position to do so if it were not for the injuries he sustained in the fall in August 2000.
Despite a detailed cross‑examination and reference to the evidence of Mr Sneddon and other medical reports, Mr Mather continued to deny that the symptoms he describes and the injuries that he suffers from are because of his earlier accidents and disabilities and not the result of the fall in August 2000. He also denied that the first person to come to his assistance following the fall was in fact a nurse by the name of Yvonne Field. He insisted the first people to arrive on the scene were two doctors. Mr Mather also strenuously denied that he had not made any complaints in relation to his shoulder until 11 days after the accident.
The defendant called Ms Yvonne Field as a witness to the accident. In August 2002 Ms Field was a clinical nurse at the Shenton Park campus of Royal Perth Hospital and had been working there for approximately nine and a half years. On 5 August she was working on Ward 10 when a patient came running in to say that someone had fallen over on the concrete walkway. She said that when she came out onto the walkway she saw Mr Mather lying on his left side. She said that he was lying on one of his crutches and he was obviously in pain and she was trying to help him get off the crutch to get up. She sent another patient down to get further assistance and to bring a wheelchair. She described Mr Mather as being very agitated and telling her that he had slipped and fallen. She said that it had been raining earlier on and although the rain had stopped the edges of the concrete walkway were wet up to approximately 45 centimetres from the edge leaving a dry area in the centre. She said that the walkway was wet because it had been raining and not because of a leaking gutter as the gutter is on the other side. She stated that she looked at the walkway in the immediate vicinity of Mr Mather's fall to make sure that there was no other impediments and she saw nothing on the path other than the water on the edges. She did not see any sand at all on the path. Ms Fields stated that immediately afterwards she completed an incident report. The incident report was tendered in evidence and it confirms Ms Fields evidence that the plaintiff stated to her that his crutches slipped out from underneath him as the floor was wet due to the rain.
The medical evidence
Although the plaintiff was able to give a reasonably detailed account of his medical history and present condition this was discursive and somewhat confused. He explained that he had consulted Dr Sneddon because of a deformity in his leg which he described as a mistake made by a doctor following injuries he received in a car accident in 1985 in which he broke his leg and jarred his neck. He stated that he had been injured in a earlier motor vehicle accident as a pedestrian in 1973. However, he stated that prior to the accident in 1985 he had been working as a cabinet maker.
Mr Mather stated that after he fell on 5 August 2000 he experienced immense pain in his left leg and also in his back and neck and shoulder. He said that he was given an injection for pain and x‑rays were taken. Mr Mather stated that he was advised that the x‑rays did not reveal any injury. He stated that he told the health professionals of his pain in his neck and shoulder, but he said that they did not appear to be interested in that. He said that an ultrasound was eventually performed in November 2000 and he said that he was advised by somebody at the hospital that the ultrasound revealed an injury to a tendon in his shoulder. Mr Mather disputes that the ultrasound does not show that he sustained any injury as a result of the fall in August 2000 and states that the medical professionals involved are not giving correct information because of fear of litigation. Mr Mather emphatically denies that he did not make a complaint in relation to his shoulder until 11 days after the accident. He maintains that the symptoms in his back and neck and shoulder are not as a result of his earlier accidents and are not a continuation of his pre‑accident condition.
Dr Douglas Sneddon is an orthopaedic surgeon consulted by the plaintiff in 1997. In a report dated 21 May 2002 Dr Sneddon provided a summary of his treatment of the plaintiff together with a diagnosis of his various health problems. He stated that the plaintiff first consulted him in October 1997 in relation to a bowing deformity of his right femur with an associated leg discrepancy of a little more than two centimetres. At that initial consultation the plaintiff advised Dr Sneddon that he was in receipt of an invalid pension because of chronic pains in his neck, back, right leg and right shoulder and that those problems had been present since a series of motor vehicle accidents in 1973, 1985 and May 1997. At a further consultation on 3 December 1997 the plaintiff advised Dr Sneddon that he had been involved in a further accident when his bicycle was hit by a car in November 1997 and that since then his right shoulder was "coming out of place". The plaintiff advised Dr Sneddon that his right shoulder pain had existed prior to the November motor vehicle accident but had been aggravated by that accident.
Dr Sneddon stated that on 28 April 2000 the plaintiff was admitted to hospital for repair on his right unstable shoulder. Dr Sneddon advised that the plaintiff had not been compliant with post‑operative care of his shoulder.
On 27 July 2000 the plaintiff was admitted under Dr Sneddon's care for correction to the bowing deformity of the right leg. Dr Sneddon stated that following the plaintiff's fall on 5 August 2000 he did not complain of shoulder discomfort until 11 days later on 16 August 2000. Dr Sneddon stated that x‑rays undertaken on that date were consistent with the appearance of his shoulder on x‑rays taken prior to the accident.
Following a number of readmissions to Royal Perth Hospital for treatment of infections at the pin sites and removal of the frame from his right leg he was finally discharged on 26 March 2001. Dr Sneddon has subsequently reviewed the plaintiff at the outpatients' clinic in July, September and November 2001. Dr Sneddon stated that the plaintiff has a permanent residual disability in his shoulder as a result of an accident prior to his fall on 5 August 2000. He assessed that residual disability as being 25 per cent of the whole of the right upper limb. Following a further examination of the plaintiff's shoulder on 26 August 2002 Dr Sneddon advised that the plaintiff appeared to have a full range of shoulder movement and he did not consider that his shoulder disability would preclude him from full‑time paid employment.
In the course of his evidence Dr Sneddon explained that the fact that there was an interval of 11 days before the plaintiff complained of symptoms in his shoulder indicated that it was unlikely that those symptoms resulted from the fall. He explained that it was difficult to understand what injury could have occurred that took 11 days to produce pain or discomfort. He stated that if the plaintiff's shoulder had been injured in the fall he would expect symptoms to become apparent immediately. Dr Sneddon also stated that the fact that an ultrasound performed on 12 October 2000 demonstrated a longstanding full thickness tear of the shoulder tendon did not suggest that this was sustained during the fall. It was not possible to estimate how longstanding that tear was and Dr Sneddon explained that it would not have been apparent when he performed the procedure on the plaintiff's shoulder in April 2000 as that was performed on a different part of the shoulder.
The plaintiff cross‑examined Dr Sneddon and suggested to him that he had in fact complained of right shoulder pain before 16 August. Dr Sneddon responded by referring to the hospital notes and stated that on his examination the first mention of a complaint in relation to right shoulder pain occurred on 16 August 2000.
Findings
I do not accept the plaintiff's evidence that at the time he fell the pathway was covered by water and that he slipped on sand that had been splashed onto the walkway as a result of water splashing down onto adjacent ground. The plaintiff's statement that there was sand and water all over the pathway is quite inconsistent with the evidence of Yvonne Field. I accept the evidence of Yvonne Field in relation to the condition of the path. She was able to give a detailed account of what she did and what she saw when she came to the plaintiff's assistance on 5 August. Almost immediately after she completed an incident report that is consistent with the account she gave in evidence. She examined the condition of the walkway when she was assisting the plaintiff and did not see any sand or other impediment. She stated that at the time it had been raining and the edges of the walkway were wet but the rain had stopped and there was no splashing of water onto the walkway. The walkway was only wet on the edges of the path up to approximately 45 centimetres leaving the middle of the pathway dry. I accept the defendant's submissions that what has occurred in this case is that the plaintiff has reconstructed the events of 5 August to the point where he has now convinced himself that he slipped on sand and that his fall was caused by the defendant's failure to maintain the pathway in a safe condition. There did not appear to be any malice or contrivance in the plaintiff's allegations and I accept the he genuinely believes that is what happened. However, the plaintiff's evidence was unconvincing and not only inconsistent with the evidence of Ms Field but also inconsistent with the allegations as they were originally pleaded in the statement of claim.
I accept the defendant's submissions that although the pathway was wet on either side as a result of the recent rain it was dry in the middle. It was a wide path and there was no reason why the plaintiff should not have been able to walk in the dry area in the centre of the path. It would be obvious to any reasonable person in the plaintiff's circumstances that it was unwise to stray away from the dry centre area of the walkway particularly taking into account that he was using crutches which may make him more susceptible to slipping or losing his balance. I do not find that there was in the circumstances any unreasonable risk of injury or risk of slipping against which precautions ought to have been taken by the defendant. The situation in this case is somewhat analogous to the circumstances described by Miller J in McLachlan v Purchas & Ors, unreported; FCt SCt of WA; Library No 980749; 21 December 1998 when he stated as follows:
"It is the case that daily, in the metropolitan area of Perth, people park cars on grass surfaces. They may from time to time be wet surfaces and slippery. In the every day activities of life many people will step out of their motor vehicles onto a wet and sometimes slippery grass surface. That does not, however, constitute either a danger within the meaning of the Occupiers' Liability Act, nor a hazard within the meaning of the Occupational Safety and Health Act, nor, in my view, is it a foreseeable risk of injury against which a prudent employer should guard in relation to his employees. It is nothing more or less than an every day experience. If it be characterised as a risk at all, it is the very risk which citizens in the course of their daily activities are required themselves to guard against."
I consider that these observations are equally applicable to pedestrians walking on pathways or in a walkway in hospital grounds as in this case. The plaintiff had simply failed to adopt a reasonable degree of prudence by walking in the centre of the covered walkway and keeping his crutches well away from the edges of the path which were damp as a result of recent rain.
Even if I had found in the plaintiff's favour in relation to the circumstances of the accident and the claim of negligence or breach of statutory duty by the defendant I am not satisfied that the evidence establishes that the plaintiff suffered anything other than minor and temporary injuries. He suffered some bleeding around the pin sites where the Ilizarov frame was attached to his leg and he also received a small abrasion to his hand. There is no doubt that because of his recent surgery and the pins in his leg the fall would have caused him considerable pain. However, there is really no evidence to support a finding that he received any additional injuries. The medical reports indicate that x‑ray findings confirmed that there was no injury to his leg and notes taken on ward rounds in the days following the fall note that the plaintiff advised that he was feeling well. It was not until 16 August that there was any notification of a complaint of right shoulder symptoms. I am satisfied on the basis of Dr Sneddon's evidence that the plaintiff had pathology in the right shoulder that had been revealed in x‑rays taken well prior to the fall. The plaintiff had previously advised Dr Sneddon of symptoms in his shoulder presumably as a result of previous accidents. Any symptoms that the plaintiff continues to suffer in his right shoulder are unrelated to his fall on 5 August 2000.
I am also satisfied that the plaintiff did not suffer any injuries to his leg or neck or back, nor did he suffer any exacerbation of pre‑existing injuries as a result of the fall. There is nothing in the medical records or hospital notes to support the plaintiff's claim that he suffered symptoms from his back and neck and any exacerbation of the symptoms in his leg following the fall. Any symptoms that the plaintiff continues to suffer are unrelated to the fall in August 2000 and are simply a continuation of the chronic symptoms that the plaintiff suffered from as a result of his earlier accidents. However, as with the plaintiff's evidence in relation to the circumstances of the accident I accept that the plaintiff has for one reason or another convinced himself that the disabilities that he suffered from prior to the fall had improved or would have improved and if it were not for the fall he would be in a different position today. Unfortunately for the plaintiff his strong convictions are completely unsupported by the evidence. The plaintiff's claim is dismissed.
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