McLean v Star City Pty Ltd
[2008] NSWDC 143
•13 August 2008
NEW SOUTH WALES DISTRICT COURT
CITATION:
McLean v Star City Pty Ltd [2008] NSWDC 143
FILE NUMBER(S):
Newcastle 518/05
HEARING DATE(S):
28-30 April, 1-2, 5-7 May 2008
JUDGMENT DATE:
13 August 2008
PARTIES:
John McLean (Plaintiff)
Star City Pty Ltd (Defendant)
JUDGMENT OF:
Sidis DCJ
COUNSEL:
C A W Hart (Plaintiff)
M H Best (Defendant)
SOLICITORS:
Bale Boshev (Plaintiff)
Wotton & Kearney (Defendant)
CATCHWORDS:
TORT
fall on escalator
whether caused by mechanical defect
whether defendant's regime for repair and maintenance inadequate
connection between incident and deterioration in pre-existing conditions.
LEGISLATION CITED:
CASES CITED:
TEXTS CITED:
DECISION:
1. Verdict for the defendant.
2. The plaintiff is to pay the defendant’s costs of the proceedings. This order is suspended until 22 August 2008 to allow either party to list the proceedings for further argument on the issue of costs.
3. Exhibits will be retained for 28 days or until further order.
JUDGMENT:
JUDGMENT
On 16 June 2003 an incident occurred on escalator 11 leading to the foyer of the Star City Casino. Mr John McLean, then aged 79, claimed that he fell and suffered injury in the course of that incident.
The issues involved in deciding the claim were:
1 The circumstances that caused the plaintiff to fall.
2 Whether those circumstances were the result of the defendant’s neglect.
3 The extent to which the plaintiff was injured as a result of the incident.
4 The compensation, if any, to be awarded to the plaintiff.
ISSUE 1 – THE CIRCUMSTANCES OF THE PLAINTIFF’S FALL
The plaintiff claimed that the cause of the incident was a malfunction of the handrail on escalator 11.
The defendant’s response to the claim was that the incident occurred when a patron, Mr Toutounjian, collapsed on the escalator, causing a crush of persons as the escalator arrived at its discharge point.
Evidence of the plaintiff and Mrs McLean
The plaintiff and Mrs McLean gave evidence of their recollections of the incident. The plaintiff said that he and his wife were in the habit of travelling several times each week from their home on the Central Coast to the Casino to play roulette. They travelled by train and took a bus to the Casino. On disembarking from the bus they ascended to an atrium area of the Casino using escalator 11.
On 16 June 2001 there were six persons on the bus, four of whom stepped onto the escalator ahead of the plaintiff and Mrs McLean. The first of them was a gentleman, identified as Mr Toutounjian. He was followed, in order, by a woman of Asian appearance, two women of European appearance, Mrs McLean and the plaintiff.
The plaintiff said that on stepping on to the escalator he placed his left hand on the moving rail and noticed that it was hot. The escalator, however, moved normally until the group travelled about half way towards the Casino. At that point the handrail stopped moving but the steps of the escalator continued to move. The plaintiff lost his balance and fell backwards on the escalator. Mrs McLean fell backwards onto him and two of the ladies fell on her.
The plaintiff thought he had been knocked out because he next found himself at the bottom of the escalator and the escalator had stopped moving. He walked up the escalator, which by then was empty. His concern at this point was to find Mrs McLean.
He said there were 12 to 14 members of the defendant’s staff milling around at the top of the escalator. Mr Toutounjian was lying parallel to the adjoining descending escalator receiving attention from two men. The lady of Asian appearance was also lying on the floor near the escalator receiving attention from two men. She was bleeding from the left side of her head.
The plaintiff found Mrs McLean seated on a walled structure near the top of the escalator. She was shocked and had mislaid her handbag. He retrieved it from a point at the top of the escalator.
He then noticed that blood was dripping from his arm. He was given some paper towels by a Casino employee. Ambulances were called to take Mr Toutounjian and the injured lady to hospital. The plaintiff declined to go with them, stating that his wife was in shock and he wanted to take her home.
After drinking a hot toddy and waiting a while, they went home.
Mrs McLean’s evidence added little to this description of the incident. Like the plaintiff, she remembered that the handrail stopped moving so that her left hand was moving behind her while her feet were travelling forward. There followed a real melee with people falling on her so that she fell down. At the top of the escalator a man’s hand took hold of her and pulled her up and off the escalator. She then walked to the wall where she sat, shocked, until the plaintiff found her.
Evidence of the defendant
The defendant produced three significant pieces of evidence. The defendant tendered the records of the ambulance service and the Royal Prince Alfred Hospital where Mr Toutounjian was treated after the incident and called Mr Btaiche, an employee, who was among the first to assist in removing from the escalator persons who were caught in the crush behind the fallen Mr Toutounjian. It produced a DVD that was said to be a compilation of the tapes recorded by security cameras directed at the top of the escalator at the time of the incident.
Mr Toutounjian was not called to give evidence. The parties agreed that he was not available for that purpose. The ambulance service report recorded that Mr Toutounjian said he felt dizzy prior to falling backwards. The clinical notes of the Royal Prince Alfred Hospital confirmed that he reported that, while travelling on the escalator, he was unable to move his left arm and both legs and that he was dizzy.
Mr Btaiche said that at the time of the incident he was lunching in the Noodle Court with a colleague close to the top of the escalator. He heard women’s voices that had a tone of panic in them. He looked towards the escalator and saw a large man, whom I assumed was Mr Toutounjian, holding the handrails on each side of the escalator and falling backwards on three ladies who were trying to hold him up. With his colleague, he dragged Mr Toutounjian from the escalator. By then he had half fallen on to the escalator. He then assisted the women from the escalator one by one.
Mr Btaiche did not recognise the plaintiff.
The plaintiff initially denied that he appeared in the material that was recorded on the DVD. He subsequently agreed that the DVD showed him, after the incident, with Mrs McLean talking to a person at a small table placed beside the top of the escalator and later receiving attention to his injured arm. He agreed that he and Mrs McLean were seen on the DVD describing the incident to a woman, apparently employed by the defendant. The woman can be seen on the DVD taking notes as they, sitting and standing, spoke to her and made movements suggesting they were demonstrating what occurred.
The plaintiff complained at length about the nature of the materials provided by the defendant. I have already noted that the DVD was said to be a compilation of security tapes.
Mr Joseki was a surveillance officer at the time of the incident. He explained that each security camera within the Casino was allocated 21 eight hour tapes that were used on a rotating basis. In addition, surveillance officers were allocated three television monitors upon which they viewed the events recorded on the tapes in the security cameras. Mr Joseki said that, when notified of a medical incident, the practice was that a surveillance officer monitored the event until instructed to cease doing so. The surveillance officer then transferred all recordings of the incident onto a composite tape, known as a risk management tape. The original tapes were then returned to service and taped over. Mr Joseki agreed that it was a matter for the surveillance officer to decide which parts of the original tapes were to be copied to the risk management tape and that the duty officer who supervised the control room was permitted to direct that material be included or excluded.
Mr Joseki agreed that the DVD contained material recorded only by security cameras placed at the top of the escalator. None was taken from a camera placed at the foot of the escalator because this particular camera was normally positioned so that it faced away from the foot of the escalator. Mr Joseki said that if it was turned towards the escalator it was of limited utility because it covered only the very bottom steps.
The plaintiff’s concerns about the DVD were that the whole of the incident might not have been copied to the risk management tape or that some editing might have occurred to the benefit of the defence.
The plaintiff further complained that the defendant failed to comply in full with his requests, made by way of subpoenae and notices to produce, for the production of documents. In particular, the defendant failed, without explanation, to produce the handwritten notes taken, apparently by one of its employees, of the description of events provided by the plaintiff and Mrs McLean immediately after the incident.
A typed Incident Report forming part of Exhibit X reported that the following statement was made by the plaintiff:
A male collapsed on the escalator, falling backwards and knocking my wife and I down.
The Incident Report was compiled by Mr Jones, the defendant’s Security Supervisor on duty at the time of the accident. Mr Jones did not recognise the plaintiff and I considered it unlikely therefore that he took the plaintiff’s statement.
These deficiencies in the documentation and recording of evidence by the defendant were of concern. Defendants should not be encouraged to act in this manner because of the obvious prejudice to plaintiffs and because withholding materials without explanation might lead to the drawing of inferences that would not assist the defendant.
In this case, however, I was satisfied that missing material would not assist the plaintiff and that the editing of the taped material did not cause him prejudice. This was because, having identified the plaintiff as the person speaking with a Casino employee after the incident, it was then possible to return to the material at the commencement of the recording and to identify him. He was shown at that point travelling immediately behind Mrs McLean on the still moving escalator in the crush of persons banked up behind the fallen Mr Toutounjian. Although difficult to confirm, it appeared probable that the plaintiff was not standing at that time. A person at the top was shown assisting the plaintiff from the escalator.
Was there any associated malfunction of the escalator?
The question remained whether there was any malfunction of the escalator, in particular the handrail, and if so whether that malfunction contributed materially to the plaintiff’s fall.
The DVD was of little assistance in determining if the handrail stopped running as claimed by the plaintiff. At one point on the recording, a man appeared to move forward on the escalator while his left hand travelled in a position behind him, indicating that it was possible that the handrail temporarily stopped. At other stages in the recording, the handrail could be seen continuing to run. Mr Adams and Dr Hill observed the same features. Mr Macbeth was the only expert to take the view that the handrail continued to move at all times.
Mr Btaiche could not state whether the handrail was operating at the time of the incident. He said that when Mr Toutounjian had his hands on them, there was a slight drag on the handrails.
Expert Evidence
The plaintiff relied on the evidence of Dr Hill, a highly qualified mechanical engineer. The defendant objected to my receiving expert evidence from Dr Hill because his expertise did not extend to the operation of escalators. I was satisfied, however, that Dr Hill’s field of study qualified him to provide opinions on the operation of plant and machinery generally and as such on the operation of the plant and machinery necessary to operate an escalator.
Dr Hill noted that the plaintiff felt the handrail to be abnormally warm immediately prior to the incident. Dr Hill’s opinion, based on instructions that the handrail came to a complete halt, was that the heat was probably the result of friction causing increased resistance between the handrail and the structures over which it travelled to a point where the drive was unable to overcome the level of resistance imposed and the handrail ceased to operate. His opinion was that friction between moving components usually occurred gradually and that the increase in temperature of the handrail ought to have been recognised as a feature warranting attention. This feature, he said, would be noted if a system of regular inspection were in place. Dr Hill confirmed that the operation of the handrail could be temporarily interrupted.
The defendant relied on Mr Macbeth, described as an occupational health and safety consultant. The plaintiff did not object to Mr Macbeth’s report notwithstanding that it did not disclose his qualifications, except to state that he retired from WorkCover in August 2003 and that in November 2003 he completed a certificate in occupational health and safety management systems auditing. He did not state the name of the institution at which he undertook this course of study.
I was not persuaded that Mr Macbeth had the necessary qualification or expertise to provide the opinions contained in his report. Those opinions were directed at:
1 The behaviour of the handrail: from his observations of the DVD and an enhanced version of the recording he concluded that the handrail did not stop running in the course of the incident.
2 Possible causes of the accident: he concluded that Mr Toutounjian’s fall was the cause. This opinion appeared to be based on the report of an employee of the defendant rather than any independent investigation.
3 The adequacy of the maintenance regime for the escalators: his conclusion that the regime was adequate appeared to be based, without explanation and without mechanical engineering expertise, on his suggestion that there does not seem to be much maintenance required such as replacement of parts.
I was therefore not assisted by the opinions of Mr Macbeth.
Mr Macbeth’s opinion that the handrail continued to run was contrary to my conclusion, on viewing of the DVD both in its original form and the enhanced version, that a man appeared to move forward on the escalator while his left hand travelled in a position behind him, indicating that it was possible that the handrail stopped temporarily. Dr Hill and Mr Adams agreed with my observations.
Dr Hill agreed that the operation of the handrail could be temporarily interrupted. Mr Toutounjian was described by Mr Btaiche as gripping each of the handrails before his collapse. This evidence was confirmed on the DVD where Mr Toutounjian was seen gripping the handrail on the plaintiff’s left hand side.
There was no reason to reject the evidence of Mr Btaiche that this caused some drag on the handrail. Both the plaintiff and Mrs McLean said that the handrail stopped running. Although the plaintiff was clearly confused about what happened to him in the course of the incident, Mrs McLean’s evidence matched precisely that shown on the DVD. On the basis of her evidence I accept that, more probably than not, the handrail did stop running temporarily as a result of the drag placed on it by Mr Toutounjian’s grip.
Post incident investigations
At the time of the incident Otis Elevator Company Pty Ltd was under contract to the defendant to provide repair and maintenance services to the lifts and escalators at the Casino. Otis Elevator Company employed mechanics, Mr Civitella, who worked full time at the Casino and Mr McKeown, who worked there two days a week and was called in from time to time by Mr Civitella when assistance was needed.
Mr Civitella said that he carried out his work on a rotation basis so that at intervals of about two weeks he inspected escalator 11, replaced parts where necessary and attended to such cleaning and lubrication as he considered necessary. He completed maintenance reports after each of these inspections in which he described this work as preventative maintenance. His maintenance records indicated that he attended to escalator 11 on 3 June 2003.
Mr Civitella said that from time to time the drive belts for the handrails of the escalators under his care began to shrink, causing friction and heating in the handrail. The solution to this shrinkage was to cut and extend the drive belt and ultimately to replace the belt. He said this did not cause a problem with the operation of the handrail, except that it reduced the efficiency of its operation.
Mr Civitella was called to the escalator after the incident. By the time he arrived the escalator had been switched off. It was not started again until the following day, after a WorkCover representative inspected it.
He denied that he was told that there had been a malfunction in the handrail. As far as he knew, a person had collapsed on the escalator.
On 17 June 2003 Mr Civitella was present when the WorkCover representative attended at the Casino to inspect the escalator. He opened the machine room for the purposes of inspection and said he did whatever the WorkCover representative asked him to do. He could not remember what that might have been but assumed that he was asked to remove the sides of the escalator to allow for inspection of its mechanism. He did not recall seeing any defects in that mechanism. The WorkCover representative gave permission for the escalator to be put back into operation. Mr Civitella completed a maintenance report on 17 June 2003 with the words Scheduled preventative maintenance and lubricate.
Mr Civitella said that the escalator operated normally when it was returned to service. He said that, if a handrail ceased to run, it was an indication of a major problem in the operation of an escalator. He saw no such major problem. He agreed that, operating normally, the handrail should not stop moving if a patron fell while holding onto it.
Mr Civitella made no mention in his evidence about the involvement of Mr McKeown in the inspection of the escalator on 17 June 2003.
Mr McKeown said he was with Mr Civitella at the Casino between 8.15 am and 2.30 pm. His evidence was that he went to the Casino as fast as possible after he was told by Mr Civitella that an incident had occurred. He said the WorkCover representative left the site before he arrived. This evidence conflicted with the Incident Report that indicated that the WorkCover representative was on site at 11 am on 17 June 2003.
Mr McKeown said he inspected both handrails and tested them in a fashion that he described as follows:
A. … I put my foot up against the escalator, grabbed the handrail with both hands and physically tried to stop the handrail moving.
Q. And in attempting that test what, if anything, did you notice?
A. The handrail had perfect tension on it, it was stone cold which meant it wasn’t running hot, there was no indication there was a problem with the handrail.
Q. Were you able to stop the handrail?
A. No.
After this test, Mr McKeown checked the mechanism for any noises but detected no abnormality in its operation.
The inspection was completed at 12 noon and the escalator was turned on at that time. It was running stone cold and normally. He returned with Mr Civitella after about 45 minutes to confirm that it continued to run normally.
Mr McKeown said that the development of heat in an escalator handrail would be noticeable immediately and detected by the mechanic or Casino staff so that it could be attended to. He agreed that drag on a handrail indicated that it was not working properly.
As far as documentation was concerned, Mr McKeown agreed that some documentation would follow the WorkCover inspection but said he had not been involved with it. He assumed that it had been passed on to the defendant’s supervisory staff. He agreed that he completed no maintenance record following his inspection of the escalator.
Mr McKeown asked for his opinion of how, in addition to working with him until 2.30 pm on escalator 11, Mr Civitella, before he finished his day’s work at 3.30 pm, had time to complete maintenance on the several other items of plant and equipment referred to on the maintenance slip completed by him on 17 June 2003. Mr McKeown agreed that each of the other items listed on the slip normally took 30 to 60 minutes to complete. He suggested that on 17 June 2003 Mr Civitella undertook very rudimentary inspection and maintenance tasks only.
Mr McKeown said that on inspection he noticed that a new drive belt was in place for the handrail on the left side. This surprised him because he did not attend to its installation. He made a very fine adjustment to the drive belt because it was stretched. Mr Civitella firmly denied that any new drive belt was installed in the left side handrail.
No WorkCover documentation was produced in response to the plaintiff’s requests but the Incident Report contained the following entry, dated 20 June 2003, by Daniel Dhiba, the defendant’s occupational health and safety manager:
Further to our conversation and OTIS’ request for Workcover approval before they start the escalators near the noodle bar, John Simbilant, Inspector Workcover has visited today (17/6/03, approx. 11 am) following our request. John instructed OTIS staff on site (Leon) to resume operation of the escalator if they deem is [sic] safe to operate. It is in operation at present.
There was no evidence of any other mechanical defect affecting the operation of escalator 11 after it was returned to service.
Dr Hill suggested a reason why no defect was identified in the handrail drive belt. He said that friction and resulting heat and drag were the possible results of the accumulation of dust or debris in the mechanism operating the drive belt and it was possible that this material was removed when Mr Civitella applied lubrication the next day.
Issue 1 - Findings
The objective independent evidence of the Ambulance Service and Royal Prince Alfred Hospital records indicated that Mr Toutounjian fell because of a medical condition and not because the handrail stopped running.
The evidence of Mr Btaiche and the DVD indicated that the plaintiff’s account of what occurred to him in the course of the incident was wrong.
I reject the plaintiff’s evidence that he fell to the bottom of the escalator and walked up the then static escalator.
There was no evidence to support the plaintiff’s claim that the handrail was abnormally hot. There were many aspects of the plaintiff’s evidence that proved to be unreliable and in the absence of supporting material I therefore reject this evidence.
I accept the evidence of Mr Btaiche that pressure placed on the handrail by Mr Toutounjian placed drag upon it. I find it probable that this resulted in a momentary interruption to the operation of the handrail.
Mr McKeown’s evidence concerning the investigation undertaken after the incident was inconsistent with that of Mr Civitella and in conflict with the evidence concerning the WorkCover inspection. Mr KcKeown’s evidence has been disregarded.
The investigations undertaken by Mr Civitella revealed no defect in the handrail or the handrail drive belt. The only service undertaken on 17 June 2003 was lubrication. No repair was required and the mechanism operated normally after the escalator was returned to service.
I accept Dr Hill’s explanation for the momentary interruption to the operation of the handrail.
In the absence of evidence of significant defect in the mechanism for the operation of the handrail and of other than short term interruption to the operation of the handrail, I find that the probable cause of the melee described by Mrs McLean was Mr Toutounjian’s collapse on the escalator.
I find that the plaintiff fell on the escalator when he was caught in the crush of persons that resulted from Mr Toutounjian’s collapse.
I find that the plaintiff did not fall as a result of the momentary interruption to the operation of the handrail.
ISSUE 2 - NEGLIGENCE
The plaintiff claimed that the cause of the malfunction was the negligence of Star City Pty Limited in failing to maintain the escalator adequately, operating the escalator in a defective condition and failing to warn members of the public entering the Casino of known defects in its operation. The defendant denied that the escalator was defective or inadequately maintained.
In order to succeed in his claim, it was necessary that the plaintiff establish that:
1 There was a foreseeable risk that patrons using the defendant’s escalators would lose balance if the handrail was temporarily interrupted.
2 The risk was of a magnitude that required the defendant, acting reasonably, to take preventative action.
3 Acting reasonably, the defendant ought to have taken preventative action that would protect the plaintiff against the risk.
Foreseeability
The evidence indicated that in June 2003 the defendant had more than an appreciation of a potential risk of injury to persons using its escalators in the event that the handrail ceased to operate while the steps of the escalator continued to run.
There was a prior incident on escalator 9 in June 2000 in exactly the circumstances claimed by the plaintiff. On that occasion a patron suffered injury after falling backwards when the handrail stopped running while the steps continued moving.
The defendant was aware that the risk was recognised by Standards Australia to the point where Australian Standard 1735.5 was introduced requiring that handrail monitors be installed in all escalators in public use after that date.
The defendant received recommendations from Thomson Elevator Consultancy Services and recommendations and quotations from Otis Elevator Company for the installation of handrail monitors.
Mr Fitzgerald, a member of the defendant staff responsible for ensuring the safe and efficient operation of its escalators requested funding to implement the recommendations of the installation of handrail monitors. Funding was not forthcoming. There was no evidence that cost of the installation of the handrail monitors was beyond the defendant’s means. In fact, funding was provided and the handrail monitors were installed in the 2006/2007 year.
Prevention
The plaintiff pointed to a number of features as evidence that the defendant failed to take appropriate preventative action.
There was evidence that for a period the escalators were in poor condition and were operating inefficiently. There were records of multiple defects to which technicians were called in 2001 and 2002 and to a lesser extent in 2003.
The plaintiff’s statement that the handrail was unusually hot on the morning of the incident suggested to Dr Hill that there was friction affecting the handrail drive belt and that it was not operating properly. Dr Hill and Mr Adams suggested that, if a regime of regular inspection was in place, this defect would be noted and maintenance undertaken.
Mr Btaiche noted drag in the handrail when it was gripped by Mr Toutounjian. This was another feature that one might expect to be noted in the course of a regime of regular inspection.
Mr Civitella and Mr McKeown said that handrail drive belts from time to time required adjustment.
There was inconsistency in the evidence of Mr Civitella and Mr McKeown on the matter of whether a new drive belt had recently been fitted to the left handrail on escalator 11. Mr McKeown said he thought it necessary to adjust the belt in the course of his inspection on 17 June 2003.
It was suggested that I should draw an inference adverse to the defendant from the absence of evidence of the WorkCover inspector concerning the condition of the escalator on inspection on the day following the incident.
The defendant offered no explanation for its failure to adopt the recommendations to install handrail monitors.
The defendant responded to these points as follows.
Inspection of the escalator before it was returned to service disclosed no defect in the handrail or the handrail drive belt.
There was evidence of a concentrated effort by the defendant and its contractor, Otis Elevator Company, in upgrading escalators and lifts at the Casino to the point where Thomson Elevator Consultancy Services reported substantial improvements and a reduction by one half in 2002 in the fault rate of these items of equipment. It also reported that by December 2002 internal escalators were not suffering from handrail or any other general issues.
Thompson Elevator Consultancy Services, in December 2002, identified seven faults on escalator 11, one of which related to pulsing in the handrail while it was in motion. The report did not specify whether it was referring to the left or the right handrail.
Mr Civitella agreed that pulsing in a handrail was an indication that friction was occurring and stated that the defect was easily rectified by extending its length. There was evidence in the maintenance records that the right handrail was extended on 7 January 2003, suggesting that it was this handrail that was affected. There was no similar record dealing with the left hand rail, although a report provided to the defendant by Otis Elevator Company in March 2003 made reference to planned repairs that included lengthening both handrails.
The interruption to the operation of the handrail was momentary. There was no evidence to establish the effect that a handrail monitor would have in such circumstances. Dr Hill, the only expert with mechanical engineering qualifications, was unable to assist the court on this question. It was left therefore to speculation to decide whether the handrail monitor would have assisted in preventing injury to the plaintiff.
There was no statutory obligation to upgrade the defendant’s escalators by installing handrail monitors in existing equipment.
The defendant had in place a comprehensive regime of repair and maintenance, described as follows:
1 Mr Fitzgerald was engaged by the defendant as its facilities contracts supervisor. His responsibilities included:
(a) Managing contracts entered into between the defendant and various contractors for the maintenance and operation of the facilities of the Casino;
(b) Walking the Casino on a daily basis and checking its facilities including the escalators. His inspection involved checking the escalators by touching their handrails to check for heat and to note whether the handrail was running at the same speed as the steps. He also took hold of the handrails at each end of the escalators and, if he was able to stop the handrails from running, he switched off the escalator, barricaded it and called the technician.
(c) He inspected one half of the 21 escalators in the Casino each day with the result that escalator 11 was inspected two to three times each week.
Mr Fitzgerald said he had no concerns with escalator 11 between January and June 2003.
2 The defendant also employed two facilities shift managers who were responsible for supervision of the Casino’s facilities on a 24 hour basis. The shift managers worked 12 hour shifts and were responsible for supervising up to 20 technicians during the day and four technicians at night. They had authority to shut down an escalator when warranted by a defect presenting a hazard to patrons or staff.
3 The defendant engaged Thomson Elevator Consultancy Services to conduct an annual audit of its escalators and lifts and to identify hazards and risks that required attention.
4 The defendant held a contract with a reputable company, Otis Elevator Company, that required that the escalators be serviced and maintained to specified standards. There was no evidence that the specified standards were inadequate.
5 The contract required that Otis Elevator Company provide personnel, including Mr Civitella who was based at the Casino between 7 am and 3.30 pm on weekdays. Mr McKeown, also employed by Otis Elevator Company, was responsible for supervising Mr Civitella. He worked at the Casino between the same hours on two days each week. Additional staffing was provided for major repairs.
6 Mr Civitella serviced the escalators on a rotation basis, so that each escalator received his attention at two weekly intervals.
Issue 2 - Findings
In the light of the pleadings and my findings on issue one, the examination of the extent to which the defendant breached its duty of care to the plaintiff could only relate to the condition of the mechanism operating the handrail that allowed for drag and the interruption to the operation of the handrail when pressure was placed upon it.
There was no evidence that the installation of a handrail monitor would have prevented the plaintiff’s fall, even if that fall had been the result of destabilisation following the temporary interruption to the operation of the handrail.
Dr Hill and Mr Adams both stated that such a fault could be detected if a proper system of inspection were in place. They did not express opinions about the level of inspection that they considered would be reasonable. They did not express opinions on the regime operating at the Casino at the time of the incident.
I was satisfied by the evidence that the defendant’s system for repair, maintenance and inspection of its escalators at the Casino at the time of the incident was comprehensive, reasonable and adequate.
I find that the momentary interruption to the operation of the handrail was not the result of negligence on the part of the defendant.
ISSUE 3 – INJURIES CAUSED BY THE INCIDENT
The plaintiff claimed that as a result of his fall he suffered the cuts to his arm to which I have already referred. He also claimed that his shoulder came into contact with the side of the escalator as he fell. His injuries were listed as:
Shock
Injury to the cervical spine
Aggravation of pre-existing conditions in his cervical spine
The development of MRSA infection
Scarring and disfigurement
Aggravation of a pre-existing injury to his lumbar spine
I did not doubt that the incident caused the plaintiff to suffer some shock but there was no evidence to establish that it resulted in any diagnosable condition. This part of his claim was not considered further.
There was evidence that the plaintiff suffered from a longstanding condition affecting his cervical spine. After a sudden significant deterioration of the symptoms in his neck, involving pain in his neck and shoulders and loss of power in his hands, surgery in the nature of anterior decompression and fusion at the C3-4 and C6-7 levels was undertaken in 1999. The plaintiff conceded that he always held the view that the problems with his neck were caused in 1959 by a work related incident where he struck his head on the roof of a mine. He continued to press this claim after the incident. Coal Mines Insurance rejected his claim of a work related injury to his cervical spine.
There was evidence that the plaintiff suffered from a longstanding condition affecting his lumbar spine, the result of injury suffered in the course of his work as a coal miner. His problems were attended to surgically in 1955, 1986 and 1994 with laminectomies and fusion of lumbar vertebrae. Further surgery was undertaken in 2004. Coal Mines Insurance accepted liability for this injury prior to the incident at the Casino and met the plaintiff’s medical expenses for his treatment.
The Cervical Spine
The most significant part of the plaintiff's claim related to an alleged severe aggravation of the condition of his cervical spine. There were a number of significant problems facing the plaintiff in establishing a connection between the incident and the subsequent deterioration in the condition of his cervical spine.
The development of symptoms
The plaintiff and Mrs McLean said that symptoms in his neck developed soon after the incident. Mrs McLean said that she noticed that the plaintiff became less steady on his feet and that he started to bump into things.
The plaintiff said that he suffered three episodes when he passed out and vomited. One took place on the golf course and another at a railway station. He said they occurred within a short period of time in about November 2003. He then developed further symptoms involving loss of power in his arms and shoulders.
These symptoms led him to consult Dr Farey in May 2004 and further surgery was undertaken on his cervical spine in June 2004. A complication arose and further surgery was undertaken in March 2005. The plaintiff's recovery from this surgery was complicated by an MRSA infection that was diagnosed in June 2005.
The claims made by the plaintiff and Mrs McLean that he suffered symptoms in relation to his neck shortly after the incident were not supported by medical records. The plaintiff consulted his general practitioner, Dr Phadke, on 18 and 26 June 2003. Dr Phadke's notes refer to multiple skin wounds on the right forearm that were healing well and to a complaint of back pain. The next relevant note was made by Dr Phadke on 19 December 2003 to the effect that the plaintiff still had back pain. He referred the plaintiff for x-ray of his lumbar spine.
The first medical record of any concern relating to the plaintiff’s cervical spine was contained in a letter from Dr Chia, Royal North Shore Hospital, to Dr Phadke dated 14 May 2004 concerning osteoarthritis in the plaintiff’s left knee but concluding with the words … we have asked him to resolve his neck issue before a knee replacement was done.
The plaintiff also consulted Dr Farey, the orthopaedic surgeon whom he consulted in relation to his neck on 14 May 2004. Dr Farey reported that the plaintiff told him on that date that he developed neck pain and further symptoms of spinal cord compression after an assault at Star City Casino on 16 June 2004. He complained that his hands were clumsy and that he suffered from increased numbness in his hands and feet and a recurrence of unsteadiness of gait.
Investigations undertaken at the request of Dr Farey identified a disc protrusion at C5/6 and other degenerative changes. The plaintiff was admitted to Royal North Shore Hospital on 23 June 2004 and surgery was undertaken by Dr Farey on 25 June 2004 for anterior decompression and fusion at the C4/5 and C5/6 levels.
The notes made at the time the plaintiff was admitted to the Hospital record that the plaintiff stated that he suffered weakness and numbness in his arms and hands for the last few months. The Physiotherapy Department recorded the date March 2004 and gradual deterioration affecting the plaintiff’s legs, arms, neck and shoulders.
Ms Walker reported that she was informed that the plaintiff’s symptoms developed in December 2003. Dr Ghabrial was told that the symptoms commenced after the incident on 16 June 2003.
Dr Khan recorded that the plaintiff developed a recurrence of symptoms of weakness in his arms and legs in May 2004.
The plaintiff was examined by Dr Potter in February 2005 and Dr Rowe in March 2005 at the request of Coal Mines Insurance. The plaintiff at that stage was pressing claims that his medical problems affecting his lumbar and cervical spine were work related. Dr Potter recorded: He cannot recall any further recent neck injury … and there was no reference in his report to the incident. Similarly, there was no reference to the incident in Dr Rowe’s report. He reported that the plaintiff informed him that the cervical fusion undertaken in 1999 was not successful so that another fusion was required in 2004.
The plaintiff said he made a deliberate decision not to disclose to Dr Rowe the injury he claimed he suffered in the incident. He said he did not like Dr Rowe because he had never written a report that favoured him. The plaintiff denied that he made similar decisions to withhold his claimed neck injury from Dr Potter and Dr Ruff, the orthopaedic surgeon who treated him for his lumbar spine. He denied that he deliberately withheld information about the incident because he feared that it would affect negatively his claim on Coal Mines Insurance.
Dr Sage was interested to know dates of the three episodes when the plaintiff said he passed out and vomited. He said if they occurred close to June 2003 that a connection was highly likely. The plaintiff said they occurred within a short space of time in November 2003.
Dr Phadke had no record of these episodes. The plaintiff said he did not formally consult Dr Phadke in respect of them because he recovered quickly. He suggested he might have mentioned them to Dr Phadke informally at the golf club.
There was evidence indicating that the plaintiff suffered from episodes prior to June 2003. Dr Phadke’s notes referred to two turns suffered by the plaintiff in January 2002 and February 2003, involving sudden memory loss for short periods. Dr Kleinman reported on 25 August 2000:
He has developed a new set of problems recently, on 3 occasions he has suddenly developed a severe cramp in the left leg just above the ankle and then has blanked out and when he has woken up he has found that he has vomited profusely but the pain has gone from his leg. This is very odd and suggests that something is happening above the foramen magnum and he should certainly be seen by either a Neurosurgeon and Neurologist to establish a cause for these rather bizarre symptoms.
There was evidence indicating that a golf course incident occurred in August 2004. Dr Phadke recorded on 27 August 2004:
FEW DAYS BACK HE AS [sic] WALKING ON THE GOLF COURSE AND FELT UNWELL
THAT NIGHT WENT TO WYONG HOSPITAL HAD IV FLUIDS WAS TOLD HE HAS PNEUMONIA
HAD ANTIBIOTICS
HAS BEEN ON RULIDE AND AMOXIL
FEELS MUCH BETTER
Dr Farey reported that he was not able to state that the incident was the cause of the subsequent further cervical disc protrusion. He accepted that a head or neck injury could exacerbate an underlying condition but pointed out that the prior spinal fusion might accelerate degeneration at levels adjacent to the fusion. This, he said, could be the cause of the deterioration of the plaintiff’s condition with respect to neck pain or disc protrusion.
Similarly, Dr Sage, on the information available to him was unable to conclude that there was a connection. He noted that Dr Farey did not appear to believe that there was a strong connection. He referred to his difficulties in obtaining from the plaintiff a history of significant neck aggravation after the incident and to the absence of record of complaint in Dr Phadke’s notes. Like Dr Farey, he pointed to the propensity for spontaneous prolapses of cervical discs to occur, particularly in the circumstances of a pre-existing fusion.
Dr Sage, reporting in July 2007, said:
From his history today you can pick up when the cord compression occurred from a large prolapse at the C5/6 level, probably sequestrated. This occurred at a golf course where his wife was playing, but he was not. Neither he nor his wife were able to give me the date, but he saw Dr Farey in May 2004 and since he had a significant problem it is likely it was only a short period before this time.
Dr Sage went on to note that, although Mrs McLean said that the plaintiff was significantly affected by the Casino incident, there was no mention in the general practitioner’s notes of what would be noticeable co-ordination problems if they were in fact significant.
Dr Kahn, referring to the absence of record of complaint in relation to the neck and the apparent development of symptoms 10 months after the incident in May 2004, was of the opinion that the plaintiff did not sustain any significant aggravation to his cervical spine and the disc protrusion at C6/7 was not the consequence of the fall on 16 June 2003. Rather, the condition treated in 2004 was due to progression of the plaintiff’s degenerative condition in the cervical spine which might have been accelerated by previous surgery and fusion at the C3/4 and C6/7 levels.
Lumbar Spine
There was evidence that the plaintiff complained of increased back pain after the incident and that these complaints resulted in further investigations that were undertaken in December 2003.
He consulted Dr Ruff, orthopaedic surgeon, and, after some delay to allow for surgery to his cervical spine, Dr Ruff performed decompression surgery at various levels of his lumbar spine in October 2004. Dr Ruff reported that the plaintiff made good progress after surgery with excellent relief of his symptoms and good return to normal function.
Dr Potter and Dr Rowe reported the plaintiff’s view that back surgery was not as effective as suggested by Dr Ruff. Dr Potter reported that the plaintiff was using a brace and that he complained of ongoing back and bilateral leg complaints and instability and proprioceptive problems. Similar complaints were made to Dr Rowe who added that the plaintiff relied on a walking stick because of poor balance.
There was no suggestion in the evidence that these problems were related to the incident rather than to the long standing condition of the plaintiff’s lumbar spine as a result of a work injury.
Dr Kahn reported in February 2006 that the soreness in the plaintiff’s back had settled. He concluded that he suffered a temporary aggravation of the pre-existing condition that lasted for a period of some weeks or months.
Issue 3 - Findings
The evidence of the plaintiff and Mrs McLean that he experienced symptoms in his neck immediately after the incident is rejected in the absence of any medical record to confirm it.
I accept the opinion of Dr Sage that, having regard to the significance of the claimed problems, it was likely that his neck symptoms developed a short period before he consulted Dr Farey in May 2004 and that symptoms of such significance would be recorded in the general practitioner’s notes if they occurred prior to that date.
The plaintiff’s admission that he made a deliberate decision not to disclose to Dr Rowe that after the incident he developed back and neck symptoms indicated his capacity for deceit and added support to the proposition that the incident did not further injure the cervical spine or significantly aggravate the pre-existing condition.
I reject the plaintiff’s evidence that he did not make a similar deliberate decision to withhold information about the incident from Dr Potter and Dr Ruff. I find that he did so because he was concerned that the information would negatively affect the claims he was then making on Coal Mines Insurance.
I reject the plaintiff’s evidence that three episodes occurring in November 2003 were indicative of the time at which the further cervical disc prolapse occurred. It was apparent that the plaintiff suffered from similar episodes prior to the incident.
I reject the plaintiff’s evidence that the episodes he claimed occurred in November 2003 would not be reported to his general practitioner. A number of previous episodes were reported and recorded. An episode occurring on the golf course more than one year later was reported to his general practitioner and recorded.
There was no expert medical opinion to support any claim that connected the injuries suffered by the plaintiff in the incident and the subsequent cervical disc prolapse.
It was not submitted by the plaintiff that injuries suffered in the incident generated the need for the surgery undertaken by Dr Ruff to the lumbar spine.
There was no evidence of aggravation of symptoms in the plaintiff’s neck and this aspect of his claim is rejected.
I accept Dr Khan’s opinion that the plaintiff suffered a temporary aggravation of symptoms in his lumbar spine.
I accept that the plaintiff suffered multiple lacerations to his right forearm in the incident and that they healed shortly after the incident.
ISSUE 4 - ASSESSMENT
Disabilities
It follows from the findings on the issue of the injuries suffered in the incident that the disabilities of which the plaintiff complained were not the result of injuries suffered in the incident. Further, there was considerable inconsistency between the plaintiff’s evidence and the medical records.
Conceding the longstanding conditions affecting his lumbar and cervical spines, the plaintiff said that at the time of the incident he was maintaining an active lifestyle. He continued to play golf relying on transport rather than walking around the golf course. He helped Mrs McLean with housework by vacuum cleaning each Friday. He was driving without restriction and visiting the Casino twice a week. He was able to mow his lawn and attend to external maintenance in his home.
The plaintiff said that prior to the incident he had no symptoms in his neck and that his residual back pain was managed with Brufen, a pain killing medication that he took daily. He and Mrs McLean travelled from time to time with their caravan.
The plaintiff said that after the accident he suffered from increased pain in his back and his neck. He could no longer play golf. The caravan was disposed of because he could no longer manage the physical effort of setting it up. He continued to manage his increased back pain with Brufen, although his activities were further restricted. He could not mow the lawn or undertake external house maintenance such as cleaning gutters, painting and using a ladder. He could only assist with car washing.
The plaintiff said he recovered from surgery but that he suffered from disabilities affecting his capacity to balance and further restricting his neck movement. In particular, he said that he was unable to drive long distances because of his difficulty in turning his head to check for vehicles to the side of his car.
The plaintiff denied that his neck movements were restricted prior to the accident to the point where he experienced difficulty driving. He maintained this denial notwithstanding the record of the evidence that he gave before his Honour Judge Bishop in the Compensation Court on 19 March 2001 to the following effect:
His Honour
Q. … How are you yourself finding that results of the neck surgery.
A. Well, I wake up in the morning with a stiff neck and I have a 30 to 40 per cent disability in turning, driving the car, you know, you're looking for that blind spot. I can't get round there to see that.
The plaintiff said that he had plucked out of the air the 30% to 40% disability figure given to Judge Bishop. This explanation by the plaintiff was undermined by a report of Dr Kleinman dated 25 August 2000 in which he noted on examination that the plaintiff had only 50% of the normal range of movement in his neck and that the plaintiff told him that he had neck pain and stiffness so that it was hard for him to turn his head to the right and left when driving.
The plaintiff said nothing in his evidence in chief of problems with long term left leg sciatic pain and wasted thigh muscles. They were raised with him in cross-examination when he agreed that they caused him to limp. He denied that the problems increased to the point where they significantly disabled him or had any impact on his level of activity in 2003. This evidence was contradicted by reports of Dr Ellis and Dr Rowe in April 2003, two months prior to the incident.
Dr Ellis diagnosed osteoarthritis of the left knee noting that the plaintiff's knee pain was worse with activity and that his capacity for walking had reduced over time. Dr Ellis recommended a total knee replacement.
Dr Rowe recorded that the plaintiff complained of soreness in his left knee dating from 1997 and of aching in the knee with certain activity. He recorded that the plaintiff told him that that he felt that the knee would restrict him to the house if he did not have a total knee replacement and that he would need a wheelchair. Dr Rowe did not consider the knee replacement was warranted.
The plaintiff's evidence that the condition of his left leg had not deteriorated over time was contrary to the request he made in November 2006 to Coal Mines Insurance for a mobile chair scooter on the basis that his capacity to walk was restricted by the condition of his left knee and associated muscle wasting.
The plaintiff’s claim that he could no longer play golf was undermined by material in Ms Walker’s report, dated December 2005, to the effect that, prior to the incident he played golf three times a week and after it only once a week. She reported that on a typical day the plaintiff might join friends for a round of golf and that he drove a panel van in order to transport his golf clubs.
Ms Walker also reported that Mrs McLean told her that the plaintiff stopped most of his usual heavy tasks because his low back pain and sciatica were exacerbated by the fall in June 2003.
Issue 4 - Findings
The evidence established that the plaintiff was less physically active at the time of the incident than he claimed.
I have no doubt, however, that the plaintiff, at the age of 83 and with serious conditions affecting his spine and left leg, is restricted in his capacity to undertake physical activity.
Some of those restrictions pre-existed the incident. Others have developed since the incident but are the result of the ongoing progression of pre-existing conditions. They are not the result of injuries suffered in the incident that occurred on the defendant’s premises on 16 June 2003.
The effect of the injuries that were suffered, namely, lacerations to his right arm and temporary aggravation of the pre-existing condition of his lumbar spine was of short term consequence.
The consequences of the injuries were limited to the point where the plaintiff did not reach the threshold of 15% of a most extreme case and he therefore did not qualify for compensation for non economic loss.
The plaintiff might well require the attendant care services and the equipment recommended by Ms Walker. The need for those services and equipment was not generated by the injuries suffered in the incident. Any short term additional need for attendant care services did not meet the threshold requirements of six hours per week for a period of six months. The plaintiff therefore did not qualify for compensation for attendant care services.
The plaintiff consulted Dr Phadke on a limited number of occasions for treatment after the incident. His out of pocket expenses would extend to the cost of those consultations only.
ORDERS
Verdict for the defendant.
The plaintiff is to pay the defendant’s costs of the proceedings. This order is suspended until 22 August 2008 to allow either party to list the proceedings for further argument on the issue of costs.
Exhibits will be retained for 28 days or until further order.
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LAST UPDATED:
13 August 2008
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