Nairn v The Board of Management of Warren District Hospital
[2006] WADC 97
•29 JUNE 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: NAIRN -v- THE BOARD OF MANAGEMENT OF WARREN DISTRICT HOSPITAL & ORS [2006] WADC 97
CORAM: MACKNAY DCJ
HEARD: 7-11, 14-18, 21-23 & 25 NOVEMBER 2005
DELIVERED : 29 JUNE 2006
FILE NO/S: CIV 3385 of 1998
BETWEEN: SANDRA MARIE NAIRN
Plaintiff
AND
THE BOARD OF MANAGEMENT OF WARREN DISTRICT HOSPITAL
First defendantTHE BOARD OF MANAGEMENT OF BUNBURY REGIONAL HOSPITAL
Second defendantSHIRE OF MANJIMUP
Third defendantMAXWELL AND NORAH HARGREAVES
Fourth defendant
Catchwords:
Torts - Negligence - General matters - Patient of hospitals - Whether failure to expeditiously treat - Turns on own facts
Tort torts - Negligence - General matters - Whether local authority failed to keep laneway in safe condition - Whether adjoining owners responsible for condition of portion of laneway within boundary - Turns on own facts
Damages - Personal injury - Plaintiff 30 year old female public servant at time of accident - Loss of left leg below the knee - Total award of damages of $900,314 and special damages
Legislation:
Local Government Act 1995 (WA), s 9.57
Occupiers Liability Act 1985 (WA), s 5
Result:
Plaintiff entitled to judgment against first defendant and second defendant for $900,314 and special damages
Plaintiff's claim against third defendant and fourth defendants dismissed
Representation:
Counsel:
Plaintiff: Mr R I Viner QC and Mr J R Potter
First defendant : Mr R M Mitchell
Second defendant : Mr R M Mitchell
Third defendant : Mr J Eller
Fourth defendant : Mr P Mendelow
Solicitors:
Plaintiff: Friedman Lurie Singh & D'Angelo
First defendant : State Solicitors Office
Second defendant : State Solicitors Office
Third defendant : John Eller
Fourth defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Black v Motor Vehicle Insurance Trust [1986] WAR 68
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512
Chappel v Hart (1998) 195 CLR 232
Kondis v State Transport Authority (1984) 154 CLR 672
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
March v Stramare Pty Ltd (1991) 171 CLR 506
Misiani v Welshpool Engineering Pty Ltd & Anor (2003) WASC 263
Naxakis v Western General Hospital (1999) 197 CLR 269
Northern Sand Blasting Pty Ltd v Harris (1997) 188 CLR 313
Vairy v Wyong Shire Council (2005) HCA 62
Westralian Caterers Pty Ltd v Eastment Limited (1992) 8 WAR 139
Case(s) also cited:
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Bomford v Commissioner of Main Roads [2000] WASCA 187
Calvert v Shire of Gingin [2004] WADC 1
Clarke v Coleambally Ski Club Inc [2004] NSWCA 376
Department of Natural Resources and Energy v Harper [2000] VSCA 36
Donoghue v Stevenson [1932] AC 562
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54
Graham v Baker (1961) 106 CLR 340
Hackshaw v Shaw (1984) 155 CLR 614
Hagger v City of Fremantle [2003] WADC 206
Jones v Bartlett (2000) 205 CLR 166
Lake Macquarie City Council v Bottomley [1999] NSWCA 28
Le Lievre v Gould [1893] 1 QB 491
Leichhardt Municipal Council v Green [2004] NSWCA 139
McFarlane and Ors v Western Australia [2004] WADC 245
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7
Parsons v Randwick Municipal Council [2003] NSWCA 171
Perre v Apand (1999) 198 CLR 180
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Prast v Town of Cottesloe [2000] WASCA 274
Richmond Valley Council v Standing [2002] NSWCA 359
Roads and Traffic Authority of NSW v Jackson [2003] NSWCA 40
Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208
Tame v State of New South Wales (2002) 191 ALR 449
Town of Mosman Park v Tait [2005] WASCA 124
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Watts v Rake (1960) 108 CLR 158
Watts v Turpin (1999) 21 WAR 402
Wynne v Pilbeam [2005] WASCA 200
KEY
Introduction
Plaintiff
Accident
Plaintiff at hospitals
Other evidence regarding accident
Plaintiff's medical experts concerning causation
Plaintiff post‑accident
Plaintiff's treating doctors
Plaintiff arranged medico‑legal review
Other prosthetic evidence
First and second defendants
First and second defendant medical experts concerning causation
First and second defendant medical review
Shire of Manjimup
Fourth defendants
Cause of accident
Duty of care of Warren Hospital and Bunbury Hospital
Whether breaches by first and second defendants causative of plaintiff's injury
Duty of care of third defendant
Claim against fourth defendants
Damages
MACKNAY DCJ:
Introduction
In September 1997, the plaintiff, a female public servant then aged about 30 years, and a resident of Geraldton, was staying in Manjimup when in the early hours of the morning, on her way home from a local hotel, she fell and injured her left leg, suffering in particular an injury to the popliteal artery behind the knee and consequent disruption to the blood supply to the lower leg.
The plaintiff was subsequently admitted to the Warren District Hospital (the "Warren Hospital") at Manjimup, but was transferred by road the same morning to Bunbury Regional Hospital ("Bunbury Hospital"), where she remained for some hours before being again transferred by road to Royal Perth Hospital ("RPH") where she underwent repair of the popliteal artery.
As a result of the tissue damage caused by the loss of the blood supply it was later however found necessary to amputate the left leg below the knee.
The plaintiff says that her injury resulted from dislocation of the left knee when she slipped into a hole in a rear laneway, that hole being a trench excavated to construct a shed at the rear of a house lot which abutted the lane.
The plaintiff says that the third defendant, the Shire of Manjimup (the "Shire"), which was the local authority responsible for the relevant area, was guilty of a breach of statutory duty to her for various reasons, including failures to see the trench was filled in and to keep the lane safe, and was also negligent.
The fourth defendants, who became the owners of the house lot after construction of the shed, were negligent, the plaintiff says, as the trench was partly within their lot, and as occupiers.
Finally, the plaintiff says that each of the first defendant and second defendant was negligent in her treatment, and that amputation of her left leg was thereby caused.
The plaintiff then claims damages against each of the defendants.
Each of the defendants does not admit or denies that the plaintiff suffered any loss or that the particular defendant is liable for any loss, and various defences are raised, including statutory immunity on the part of the third defendant, and contributory negligence by each of the third defendant and the fourth defendants.
Contribution notices were also issued, but I was requested by the parties to defer those pending the outcome of the plaintiff's claim.
Plaintiff
The plaintiff is aged 39 years, having been born on 13 December 1966, was married on 6 January 1990, does not have children, and lives and has spent most of her life in Geraldton, where her family live, although she and her husband Greg spent about two years in Kalgoorlie between 1994 and 1996.
That resulted from the plaintiff's husband being transferred there as a train driver.
The plaintiff said that on their return to Geraldton from Kalgoorlie she and her husband had planned to start a family, as they had paid most of their house off, and were back with family, but due to the accident that did not eventuate.
The plaintiff has worked for the last 17 years for Centrelink and its predecessors, and is a team leader.
Prior to the accident the plaintiff said she had a very active social life with family and friends, and engaged in sport and other outdoor activities, which included camping, horse riding, beach activities and exercising the family dogs.
As to her health the plaintiff was overweight, she said, at 5 feet 8 inches tall and a weight of between 140 and 150 kg, although she had attempted to lose weight, attending a number of entities which offered services in that area, and by exercise.
She also suffered from blood pressure, she said, and had been on medication for probably three – four years, although the hypertension was under control.
Accident
In September 1997 the plaintiff said she visited Manjimup, where she had relatives, in order to allow them to see for the first time the four month old child of her sister.
Whilst there it was arranged that she stay with other members of her family at the house of an aunt, Christine Ireland, at 27 Edward Street, Manjimup, the house being somewhere she had stayed on previous occasions, the plaintiff said.
At the rear of the house was a gravel lane to which access could be gained from 27 Edward Street through two metal and wire gates, cars being parked on the land there and wood deliveries made, she said, but prior to the day of the accident, although she had opened the gates on occasion, the plaintiff had not ventured into the lane.
On the evening of 5 September 1997, at about 8 or 8.30pm, the plaintiff and four other members of her family went to the Manjimup Hotel, to have drinks and listen to music, she said.
To get to the hotel, which was about 10 minutes walk away, the group walked via the rear lane, the plaintiff said, which was unlit, but with lights at either end, which she initially said were street lights.
Trevor Rowland suggested that route she said, and she responded that she did not want to walk in potholes.
The plaintiff said she could see potholes in the lane so that she followed Michelle Kingston down it, and also told the others that if she hurt her ankle they would "cop it".
At the hotel they separated on arrival, the plaintiff said, and she spent most of the night on the dance floor, and also consumed 6 – 7 bottles of Strongbow cider, purchased for her during the evening by Trevor Rowland with money she had earlier given him, which, with one consumed earlier, made a total of 7 – 8 bottles.
The plaintiff said the family group left the hotel at about 1.15am, by which time she was "happy" but not drunk, and three of them made their way towards Edward Street, having a conversation on the way with another group walking in the same direction, and there being talk of a party.
The two groups walked up the lane behind Edward Street, but the plaintiff said she stopped to finish her conversation with the other group, and remained standing in the lane for 10 – 15 minutes, whilst Michelle Kingston and Colin Kingston walked on.
It was raining a little, and there was very little light in the lane, the plaintiff said.
The "short cut" down the lane was taken because it was starting to rain, the plaintiff said, and she said to Michelle Kingston that "I don't want to go down here again" and that she followed her, and was told to "just stay close".
The plaintiff said she was concerned about potholes and assumed there would be some additional to the potholes earlier seen, and for that reason walked slowly and on the left.
She did not, however, expect a risk other than potholes, she said, and did not expect there to be potholes, or anything else on the fence line, the potholes being due to vehicle traffic and being in the middle of the lane.
After leaving the other group the plaintiff said she walked on in order to get to the rear of 27 Edward Street, and crossed the lane, but then became disoriented and decided to retrace her steps back down the lane.
She knew she had gone as far as 23 Edward Street, which had a dome shaped light fixed on to the side or rear of the house, she said, prior to turning.
To retrace her steps the plaintiff said she followed the fence line with her hand, in the course of which she felt an asbestos fence, then "reeds", stepping out into the lane for a couple of steps as she passed such and then back in, following which she felt asbestos again and "then steel".
Then, the plaintiff said, her left foot slipped into a hole, there was a sound in her leg, and she fell into the hole, ending with her right leg partly in it.
The plaintiff said she tried to move but felt severe pain in her left leg from the hip down, and tried to stand but collapsed, crying and screaming in pain.
The rain and wind picked up, the plaintiff said, and she lay there for a while, screaming for help until her throat was sore.
She then lay on her side, the plaintiff said, and pulling her left leg along with a hand on the trouser leg, made her way along the ground towards the light she had seen earlier, a distance of about 20 metres.
The plaintiff said that on arrival at the house with the light, where there was a "chicken wire" fence, she screamed out without response for a time, and then managed to get over the fence where she collapsed from pain.
To get over the fence the plaintiff said she pulled herself up with her arms and right leg so she stood upright at the fence, then hung over it, lay along it, and swung her right leg over, after which her right leg went down and landed on the ground and her left leg followed and jarred, although it did not touch the ground.
She then tried to crawl towards the house, the plaintiff said, but got only as far as a wooden shed, lying in a garden bed against the shed crying and screaming.
Michelle Kingston then appeared, the plaintiff said, left and returned with Colin Kingston, after which Trevor Rowland appeared, the latter "flattening" the fence and putting the plaintiff in a car, in which she was taken to hospital.
The plaintiff said she told Michelle Kingston where she had fallen, and told staff at the hospital that she crawled over a fence after the accident.
She did not return to the lane until about a year after the accident, the plaintiff said.
Photographs depicted the vegetation at the rear of a house on the lane described by her as "reeds", the plaintiff said, with asbestos fences on either side and the steel shed which abutted the trench into which she had fallen.
She told the nurse at Warren hospital the accident occurred between 1.30 and 2pm, the plaintiff said, and it was within that range.
There was a light of some kind at each end of the lane, she said.
Although disagreeing that she was drunk the plaintiff later said she was "not denying I'd had some drinks", and later again said she was "not drunk so that I was falling down", further saying that she would describe herself as sober, and would have presented as such.
The plaintiff denied she had tried to take a short cut through the house and had climbed the chicken wire fence to that end, and had fallen only at that point and injured herself in that manner.
She also denied she had given a different account of the accident at any of the hospitals and said that at RPH she read the notes, told a nurse the account in such was incorrect, had the entry amended to state that she was walking down the lane and put a foot in a hole, and signed the amendment.
Plaintiff at hospitals
The plaintiff said that at the Warren Hospital she was put in a wheelchair, and Trevor Rowland told a nurse what had happened.
She was soaking wet, covered in mud and freezing, the plaintiff said, whilst she could not feel her foot, which was hanging down, and she was in extreme pain.
After being given a shower she was made to walk to bed, the plaintiff said, despite her pain, and she passed out for a time, although she recalled the attendance of a doctor, the taking of x‑rays, and her transportation to Bunbury Hospital by ambulance.
In the shower she was scrubbed by nursing staff until she screamed, she said.
The plaintiff said she was taken to casualty at Bunbury Hospital, and saw an Indian doctor there, telling him she had fallen in a hole.
By then her left leg was three or four times the size of the other leg, the plaintiff said, and she could not move her foot, which was grossly swollen, dropped, and without sensation.
The plaintiff said that she remained in casualty until she saw Dr Thompson at 12.30 – 1pm, when he said she had damaged the knee and had possible vascular damage and was to be transferred to Perth, and she was taken to a ward, remaining there for 10 – 15 minutes until she was placed in an ambulance and transported to Perth.
On arrival at RPH the plaintiff said she was told immediate surgery was required and underwent the same.
However, a couple of days later her leg was amputated, she said.
The plaintiff was in hospital for a further 6 – 7 weeks, she said, during which time she underwent further surgery, experienced infections, and required her stump to be left open.
She was transferred to Shenton Park Hospital and remained there for 2 ‑ 3 weeks, the plaintiff said, returning in December 1997, January 1998 for an abscess, and February 1998, when she received her first prosthesis, which she was allowed to take after two weeks.
Mavis Ryan is an enrolled nurse who has worked at the Warren Hospital for about 17 years, and said she was on duty on the night of the accident, and recalled going to the hospital door with a registered nurse, Ms Hannaford, following which the plaintiff was brought into the hospital by wheelchair.
The plaintiff was first assessed in an out patient area and then moved to a ward where it was warmer and there were more staff, she said, and "from what (she) recall(ed)" the plaintiff stated she had taken a shortcut, fallen over a fence, fallen in a ditch, and had lain there for a long time.
The plaintiff was showered and declined help in that task, she said, although Ms Hannaford washed and dried her legs and feet, whilst the plaintiff was able to stand with the use of rails in the shower.
The plaintiff seemed reasonably calm, Ms Ryan said, did not appear to be in a lot of pain, and had been drinking, her voice being a little slurred.
After Dr Horncastle arrived there was a lot of discussion and talk about getting the plaintiff out as soon as they could, she said.
Ms Bethwyn Hannaford works as a registered nurse at the Warren Hospital, which she said in 1997 was in the course of being renovated, but was operating as a 30 bed hospital, with an accident and emergency area.
On the night of 6 September 1997 there were two registered nurses, two enrolled nurses and an orderly on duty, she said, and she had also attended the door, and had seen Trevor Rowland, who said there was a lady with a broken leg in the car, and, that the lady was a "large lady" and she thought, was "pissed".
After the plaintiff was brought into the emergency area Ms Hannaford said she obtained details from her and recorded the same on a triage sheet.
That document states in part:
"Drinking (alcohol) since 1900 5/9. Fell over fence and landed in a hole."
Ms Hannaford said the plaintiff told her that she had been drinking scotch at the hotel until it closed at 1.30 am, that she was walking home and decided to take a short cut, that she was climbing what the witness understood to be a low fence, that she fell in a hole, and that she had been unable to get up or to attract attention to herself for an hour.
It was decided to give the plaintiff a shower in the ward, she said, and the plaintiff's family were asked to go while that occurred, and were happy to do so, whilst the plaintiff was left to shower herself, as she wrapped the shower curtain around herself and did not want the staff to see her, but then had her feet scrubbed with a flannel by the witness as those were still dirty.
At that time the plaintiff was not verbalising her pain, Ms Hannaford said, and could stand in the shower, but was transferred by wheelchair to a bed and placed on it before being examined.
The second part of the triage sheet was then completed by her, she said, that in part reading:
"S(ubjective) ‑ (patient) in severe pain in left (lower leg)
- unable to (weight) bear on leg.
- (patient) smelling of alcohol.
O(bjective) – abnormality of (left) lower leg
-(patient) obese and difficult to assess.
-pedal pulses difficult to palpate.
?Dorsalis pedis present.
-foot cold. (Right) foot cool also.
A(ssessment) – probable (fracture) (left) lower leg
P(lan) – admit.
Taken to ward and showered.
Put in bed, leg elevated. Cradle in situ."
The time of the accident was recorded as before or after 2 am.
The form also noted the plaintiff's admission to the emergency area as 3.10 am and that Dr Horncastle was notified at 3.45 am and requested to attend.
In that regard Ms Hannaford said that the hospital was serviced by two outside doctors, and Dr Davies was "supposedly" available for back‑up if required.
Dr Horncastle arrived at about 4 am, she said, and decided that treatment for the plaintiff was required elsewhere in the absence of pulses in the left leg, and the plaintiff was taken for an x‑ray whilst the doctor rang the RFDS.
Ms Hannaford said that the radiographer came in from the nurses quarters, and after logistical problems a portable machine was used to x‑ray the plaintiff's left lower leg.
At about that time she felt she had located a pedal pulse in the plaintiff's left leg, she said, and reported that to the doctor who was unable to find it.
In the hospital notes she had recorded: "? Compartment syndrome" as the doctor had "verbalised" that to her, she said.
On the RFDS refusing to take the plaintiff Ms Hannaford said the "next choice was to phone Bunbury to get the plaintiff admitted there", which required the consent of a doctor there, so that Bunbury hospital was telephoned to obtain the doctor's number, although he could not at first be located, Dr Horncastle leaving the hospital when Dr Thompson rang, so that the witness ran after her to bring her back.
Dr Horncastle had rung the Bunbury hospital for the purpose of finding out who to speak to in order to have the plaintiff admitted there, she agreed in cross‑examination.
Further, Ms Hannaford said road transfer to Perth was "not an option" as "our" policy was to transfer a patient to the nearest large hospital, and that was Bunbury hospital.
As to the usual form of transfer, Ms Hannaford said that since the RFDS had become available all transfers to Perth were by air, the one occasion in her experience when weather conditions closed the local airstrip resulting in a road ambulance transfer to Bunbury, where the aircraft was met.
Ms Hannaford said she made a further entry in the hospital notes as to the accident, which reads in part:
"Patient had been to hotel during evening and at about 0130 to 2 am was climbing over a fence between two houses, stepped in a hole and fell over. Was unable to get help for approximately one hour and was caught in the rain."
She said she was unable to recall the circumstances in which the entry was made.
On admission to the hospital, Ms Hannaford said she did not notice any abrasions on the plaintiff, or record damage to her clothing, although it and her exposed skin areas were dirty.
A "nursing history/assessment" was completed by an enrolled nurse, Carol Steele, also still at the hospital, she said, and that recorded in relation to the patient's knowledge or understanding of the injury: "Had fall. ? (fractured) leg".
Ms Hannaford said that the plaintiff was very vague when questioned about how she came to climb the fence and to fall.
The witness also volunteered that the dirt on the plaintiff was not "reddish" but "more brownish" and "consistent with garden dirt".
Todd Werch, now a non‑practising registered nurse and resident of the Northern Territory, but on the morning of 6 September 1997 still employed in that role in the accident and emergency department of the Bunbury hospital, said the plaintiff's arrival was anticipated, and he saw her first at 8.05 am, prior to an examination at 8.15 am by Dr Quresh Mohamad, a visiting doctor from the UK employed by the hospital during that period.
Immediately on the arrival of the plaintiff's ambulance, Mr Werch said he telephoned the operating theatre to advise Dr Thompson the plaintiff had come into the hospital, and communicated that fact to a nurse in the theatre.
Mr Werch said the plaintiff told him that she had hurt her left leg in a fall, that she had been climbing over a low partition fence and stood in a hole and her leg buckled underneath her.
The plaintiff then told Dr Mohamad the same story, he said, although he agreed the doctor recorded:
"Climbed over a fence when crossing field and fell into hole. Felt … leg give way, unable to stand. In ground 4 > one hr until help could be called."
He recalled the plaintiff saying she was crossing a paddock, he said, and it was "a bit of a laugh" when she was telling her story.
Mr Werch said he was concerned about compartment syndrome, vascular damage and nerve impairment being part of that, and informed Dr Mohamad of that concern, he in turn communicating that to Dr Thompson.
Dr Mohamad had said the plaintiff had "possible neurovascular damage somewhere within the leg", he said.
That was at about 8.20 am, Mr Werch said.
Mr Alan Prosser, who has been an orthopaedic surgeon since 1984, and said he had practiced at RPH since 1987, with a particular interest in trauma surgery, was called on behalf of the first and second defendants.
He said he recalled a telephone call from Dr Thompson on 6 September 1997 at about 11.30 am in which:
"Mr Thompson said he had the case and he was a bit uncertain about what was going on but he felt that the lady did need to be transferred to Royal Perth Hospital and that she needed the arterial injury side of things sorted out with an arteriogram as to whether there was or wasn't an injury, and he talked about whether she should have any surgery done at Bunbury for compartment syndrome but was concerned about the potential for that causing delay, and asked if we would take her at Royal Perth and of course we said yes."
According to the RPH notes the plaintiff arrived in triage at 6.08 pm, and left at 6.13 pm, he said, and was then seen at 6.30 pm by Dr Bell in the accident and emergency department, who recorded that he thought that the plaintiff's problems were compartment syndrome, "query popliteal artery disruption" secondary to presumed lateral disruption of the knee ligaments, and with a need for an angiogram.
It appeared the orthopaedic resident was asked to see the plaintiff, who was given analgesia and then admitted as a patient of his, Mr Prosser said.
Dr Zandi, the orthopaedic registrar saw the plaintiff, it appeared from the notes, he said, and wrote: "31 year old lady fell into a ditch last night whilst drunk".
That doctor's observations also included fixed plantar flexion and an absence of active toe movement, both of which were referable to muscle function in the calf and foot, Mr Prosser said, and "foot and leg warm" although in relation to that it appeared from the medical literature that with popliteal artery injury such was not an indication of any absence of ischaemia.
Dr Zandi also thought there was a foot pulse present, Mr Prosser said, and that the injury was mainly a compartment syndrome, so that his plan was to begin with a fasciotomy.
The hospital record indicated that the operation involving the plaintiff began at 7.20 pm, Mr Prosser said, and he was present, and wanted the plaintiff's ankle pulses checked again, and on those being absent the vascular surgeons were called for, in the meantime examination of the knee confirming very major ligament damage and a fasciotomy being carried out.
On arrival of the vascular surgeon, Mr Brown, a doctor not known to him, at a time recorded as 8.15 pm, an angiogram was done, which had with it some difficulties, he said, and was probably completed about 9 pm, and which showed a complete disruption of the popliteal artery at the back of the knee.
Mr Prosser said he then left the theatre and the vascular surgeon and Dr Zandi went on to do the vascular surgical repair, the notes indicating the proposed use of a saphenous vein graft from the same groin, with exploration of the artery, which confirmed a complete transection of the artery at or just below the knee.
The plaintiff came off the operating table at about 3.30 am, according to the operation notes, he said.
In a report of August 1998 Mr Prosser stated the posterior tibial pulse was present on completion of the surgery, and the foot was well perfused, but "the outcome was unsatisfactory, with increasing reaction in the leg muscles, and when (the plaintiff) was returned to … theatre on 12.9.98, the whole of the anterior and lateral compartment muscles and much of the posterior compartment muscles were dead. Once the dead muscles were removed it was apparent that function in the limb would not be satisfactory and a below knee amputation was undertaken."
Mr Prosser later reported, in July 2000, that the plaintiff went on to rehabilitation with fitting of a prosthesis, but required further operations, with excise of a stitch abscess in April 1998, and removal of redundant soft tissues in August 1999.
He stated that on review in May 1999 the plaintiff had been mainly concerned about those soft tissues, which were awkward with the socket for her prosthesis, but also complained of pain around the knee, there being gross crepitus around the patello femoral joint, and on further review in November 1999 she again complained of that pain.
In a report of May 2001 Mr Prosser said the plaintiff was last seen in that month, having been referred from the amputee clinic for assessment of redundant tissue over the stump and thigh, and ongoing patello femoral pain.
The plaintiff had lost 80 kg of weight at that time, which left redundant tissues and caused difficulty in the fitting of an adequate socket, so that she was referred to the plastic surgeons for further advice, he said.
In the left knee the plaintiff had deep pain, mainly under the patello femoral joint, he said, whilst x‑rays showed some loss of bone density and a posterior shifting of the tibia, which implied increased loading of the patello femoral joint, that being the likely cause of the symptoms there, and the plaintiff was referred to Mr Witherow.
Mr Prosser was supportive, both in his August 1998 report and his evidence, of the handling of the plaintiff by the first and second defendants.
Other evidence regarding accident
Michelle Kingston, née Ireland, had lived at 27 Edward Street with her mother Christine Ireland for "a couple of years" in 1997, she said, and used the rear lane frequently during the day, and sometimes at night, when she would see lights at the end, or have a torch, although the lane was "potholey" and always rough.
On the night of the accident it had been raining, and there were "lots" of potholes, so she stayed on the left of the lane going to the hotel, she said.
At the hotel she had 2 – 3 drinks, and afterwards she walked towards home with her then boyfriend Colin Kingston and the plaintiff, she said, but when the latter stayed behind in the lane speaking to others she and Colin went on.
Half an hour or an hour after arriving at home Michelle Kingston said she went to the outside toilet, heard a faint noise which she thought was a scream, and went to the rear gate from where she heard the plaintiff, and yelled back.
She then found the plaintiff behind a fence about two doors down, she said, and ran back and obtained a torch and blanket, and telephoned Trevor Rowland and his girlfriend Kay, before she returned to the plaintiff with Colin Kingston.
The plaintiff said in relation to the accident that "it felt like tin" and she fell in a ditch, Michelle Kingston said, so she went and looked, and not far down from where the plaintiff was, and in the lane behind 19 Edward Street, she saw a shed and a ditch and "gathered that was what she fell in and felt".
Trevor Rowland and Kay arrived by car, she said, and he "wobbled" an old fence post out and the plaintiff was carried to the car.
The rear of each of Christine Ireland's house and the house where the plaintiff was, 23 Edward Street, had a rear light on, she said, although she thought that in relation to the latter house on the basis that she had not left the plaintiff in the dark when she went to investigate.
The back door at 27 Edward Street was always left unlocked, she said.
Potholes in the lane were not in the middle and not on the side of it, Michelle Kingston said, and were prevalent along the middle section of its length, near 27 Edward Street.
The lane could be both muddy and slippery, she said.
Her search down the lane for a hole was done as they needed to know where the plaintiff had fallen so as to know what she might have done to herself, she said.
Michelle Kingston said, in relation to photographs of the trench later taken with her standing in it, that the level of the lane there was just below her kneecaps, or about 430 mm.
Trevor Rowland, the plaintiff's brother, said he was living in Manjimup on the night of the accident, and that they had gone to the hotel about 8 or 8.30 pm, where he held the plaintiff's money, and purchased five or six drinks of Strongbow for her in the course of the night.
On the way to the hotel with the plaintiff and others he said he trod in a pothole full of water, in the lane, and whilst there the plaintiff walked right behind him and held on to his shirt.
After leaving the hotel he walked with the other family members until he deviated in the direction of his own house, he said.
Michelle Kingston telephoned him when he was about to go to bed, he said, and "as he had had a few beers" his girlfriend drove him to Collier Street and down the lane to where they saw her with a torch.
The plaintiff was behind a fence on the ground, he said, and said she had fallen in a hole and could not feel her leg.
The house where the plaintiff was had a light on, he said, under the rear porch.
Trevor Rowland said he was a former fencing contractor and was able to pull the fence post on the left out and to then pull the fence back, before lifting the plaintiff up and out and into the car, with Colin Kingston's help.
The fence had been pulled towards the lane, he said, and in the course of doing that the bottom rail snapped.
At the hospital he rang the bell, he said, and told the nurse he thought the plaintiff had a broken leg, and once they were inside, that the plaintiff had fallen in a hole.
Once the nurse ascertained the plaintiff, he and others had consumed alcohol her attitude changed, he said, and they were asked to leave and then ushered out.
The next morning he returned to the house in the lane where the plaintiff had been, he said, at 9 am, in order to repair the fence, but found that already done.
Trevor Rowland later participated in photographing the trench in the lane, he said, and estimated its depth to be 45 to 50 cm.
He said he had been asked by his father to obtain the house number, and attempted to do that by counting down, but got the wrong number.
He said it was "obvious" the trench was where the plaintiff had had her accident as it was the only hole in the lane.
Christine Ireland said that on the evening of the accident she came home to 27 Edward Street from work at about 7.30 pm, and was to babysit, and the others then went to the hotel.
Michelle and Colin Kingston came home at about 1 am, she said, when she was in bed, and Michelle later came in to tell her of the plaintiff's accident, and after telephoning Trevor Rowland then left the house with Colin.
Christine Ireland said she went to the hospital, and saw the plaintiff in the emergency department, the plaintiff being muddy and crying and saying she could not feel her leg, before the family was asked to leave by a nurse.
The next day she went to Bunbury Hospital, and then RPH, she said.
As to the lane, she had lived at 27 Edward Street for 11 years, she said, and her sister had been there for 10 years before that, and all the houses which abutted the lane had gates, whilst some had driveways, and people drove or walked along it, whilst it was also used for rubbish collection and the delivery of wood.
People walked along the lane at night all the time, Christine Ireland said.
There was always a light on at 23 Edward Street when Mr Young occupied it, Christine Ireland said.
John Rowland is the plaintiff's father, and following the accident, and in October 1997, sent a letter to the Shire, which contained the following:
"As agent for my daughter, Mrs Sandra Nairn, I John Rowland wish to advise you that a danger to Public Health and Safety exists in the laneway at the rear of No.17 Edward Street, Manjimup.
A large hole has been left exposed through recent road works by the Shire. On the 6th September 1997, Mrs Nairn stepped into this hole which resulted in the breaking of her left knee and severing the arteries in her leg."
The addition of "No 17" by him resulted from a request to his son Trevor Rowland to ascertain the house number, and the provision of that by the latter, he said, following a discussion with the plaintiff in hospital, from which he drew the assumption that "it was a ditch or a drain" in a lane.
After the letter was sent Mr Rowland said it occurred to him the Shire might fill the hole in, and a record of it was needed, so he went to Manjimup where he met with Trevor Rowland, Michelle Kingston and Christine Ireland, went with them to the lane, and "under (his) directions" photographs were taken by Trevor and Christine.
He was then asked by senior counsel for the plaintiff:
"Did you direct them to take photographs at any particular locations?---The locations that I was concentrating on was the ones that I'd spoken to Sandra about. She gave me a graphic description of what had happened and we traced it back from where Trevor had found her over the other side of that small wire fence, and we went back and said, well, that's got to be the hole because this is the exact what she said. She's gone along the fence, touched the vine, touched the fence, touched steel and then fell. (sic)
And you found a trench at that point?---At that point."
In cross‑examination on behalf of the Shire Mr Rowland later said that the plaintiff's description of what occurred was:
"She said that she had come home from the hotel, gone up the laneway and couldn't find the back entrance to the auntie's house, had turned and come back down the laneway and she had her hand out feeling along the fence because it was dark. When they had gone to the pub, there were a lot of potholes along the road and she had felt some vines. Then there was, I believe she said, a warm feel which was the asbestos. Then immediately she felt the cold tin, she stepped into a hole."
Shirley Hoar said she was aged 73 years, and had lived in Manjimup from the age of 2 years, including at 23 Edward Street between the ages of 9 and 20 years, her father being Mr Young, who continued to live there until about March 1999.
In later years she lived nearby in Mount Street, near the corner of Collier Street, she said, and saw her father everyday, as he came over for dinner, utilising the lane for that purpose, with the aid of a torch if there was no moonlight.
At that time there was a roof mounted security light at the rear of his house, she said, and her father switched that off before he went to bed.
Mrs Hoar said that on a Sunday about eight years ago Mr Young came over to tell her there must have been an accident in the lane whilst he was at dinner as "some bastard's broken my fence".
The next day she said she saw the broken fence which was "lying in on to the rose garden".
A big post, that being nearest the shed, was snapped off halfway up, she said, and as that had gone the rest had gone with it.
The fence had been old but sturdy, she said, and she did not believe it would have been possible to pull the post out.
Mrs Hoar said her father mended the fence a week or 10 days later, as he could not stand to see things broken and always repaired them very quickly.
Ron Walker said he had lived at 13 Edward Street, which had the first driveway on to the lane along from Moore Street, since 1988.
There had been at that end of the lane a "reasonable" stormwater drain which ran across the rear boundaries of about five houses, he said, but that was filled in at the behest of the Shire health inspector after a neighbour's car backed into it and ran into his rear fence as a result.
There remained a "culvert" under his driveway, he said.
There had also been a washaway at the lane entrance to Moore Street, he said, which was very deep and dangerous, with loose material in it.
He was aware of the trench behind 19 Edward Street, he said, which seemed to be the remnant of a drain, and constituted a natural fall in the lane surface and then a small level bottomed section, but it was not a hazard, and was not considerable in extent.
In 1997 in particular the Shire had carried out considerable works in the lane, grading it, dumping and spreading spoil, filling potholes and spraying for weeds, he said.
He used the lane a great deal, Mr Walker said, walking along it, but only during the day, as it was extremely dark at night, and he did not see others then using it, although things were thrown at his house from the lane at night, he presumed by children, so that he had installed a security light.
There had been a substantial flow of water down the lane, and some flooding, particularly to 15 Edward Street, and the camber of the lane was changed by the Shire grading it so that it ran from the Edward Street side, which raised the surface and made depressions on the north side deeper, he said.
Photographs of the lane taken in October 1997 for the Shire were a reasonable depiction of the lane, at that time, he said, there having been quite considerable repair.
Flooding in the lane was at its worst in August/September, Mr Walker said, and the Shire did work on several occasions around that time.
Brian Connolly is a former member of the outside work staff of the Shire, and later supervisor, he said, but is now retired.
He went to lanes on direction, he said, and carried out inspections for drainage purposes, looking mainly at the middle of a lane to see whether water should run down the centre or one way or the other.
Around 1997 inspections would be done once per year, he said, to look at lane surfaces and the effect of rain, and if anything untoward was seen that would be reported.
He said that he and a fellow worker were instructed to, and did, fill in the trench behind 19 Edward Street.
The trench was shaped like a triangle, he said, about 400 mm wide and 300 mm deep, and might have been "a little flat at the bottom, but not much".
It was too close to the shed for a car to be likely to run into it, Mr Connolly said, whilst a pedestrian's shoulder would have to brush the shed, he said, and he did not think that a person could slip into the trench, nor that it was a hazard.
Peter Vlahov said he was with the Shire as works coordinator for about seven years from 1991, and his duties included the general running of the outside workforce, and the general maintenance of roads and lanes.
It was a major part of his job to inspect things wherever he went, he said, as he personally did the majority of inspections, and lanes would be inspected at least annually, after a heavy downpour, or on complaint.
As to a written policy of the Shire adopted in June 1997, he said inspections were done to the best of their ability within the parameters of budget, and that with about 1,300 km of road, and four major towns, and a staff of 25, things got "stretched" at times.
There were about five lanes in Manjimup, he said, as well as other lanes in the other towns within the Shire.
Mr Vlahov said that he recalled a letter from the plaintiff's father to the Shire in October 1997, and as a consequence he went to the lane to investigate.
As a result he sent a memo to the manager technical services, he agreed, in the following terms:
"… I make the following comments:
1.The right of way between Edward and Mount Street was graded to fill in potholes and to alter the slope of the surface for re‑direction of water. This was carried out by myself and Mr Dennis Whitfield at the rear of houses 35 to 11 on or about the 1 August 1996.
2.Council staff, John Harfouche and Ian Moore placed gravel in the rear access of 14 Edwards Street to assist the occupant of that address in entering and leaving the property. This took place on the 8 August 1996.
3.No other work has been carried out in this laneway by Shire staff for sometime and at no time was a hole dug at or near the rear of 17 Edwards Street.
4.An examination of the laneway on 22 October 1997 shows no evidence of a large hole having been dug in the last six months.
5.There are a number of potholes in the surface of the road but none that are more than 100mm deep and all potholes have been caused by weather and vehicular traffic.
6.There is an open drain running alongside the fences of houses 11 and 13 only and this has been in existence for approximately 25 years.
7.A search of all Depot records find no reports of a large hole in the road (laneway) and discussions with the Depot staff can not bring forth any recollection of work being carried out which would have resulted in a hole."
In relation to the grading of the lane "at the rear of houses 35 to 11" by him and another in about August 1996, he said he saw nothing untoward in the vicinity of 17 Edward Street, nor saw the trench behind 19 Edward Street.
The lane was graded because it was too flat, he said, and so as to put a "pitch" on it to help with water shedding.
The overall surface of the lane was not raised, and gravel was not brought in other than to repair one water damaged drive, he said, as to do those things would cause more water to be shed, and would exacerbate the problem of water running on to adjoining properties.
Lanes were kept as low as they could be, he said, so they could act as a drain where possible, and it was only necessary for there to be a "one per cent slope" for water to be shed.
The work did not necessarily involve raising the level of the lane on the Edward Street side, he said in cross‑examination, and they might have lowered the whole lane and put the sloping down it and not across.
Earlier he said he thought the work done was of "an extremely minor nature", and mainly at the Mount Street end, and he could not recall but thought they had got water "to split" to ease the problem further down.
Mr Vlahov agreed lanes were used to bring in firewood and gardening requirements, and could be used by pedestrians, but said the Shire did provide footpaths for that purpose.
Mr William Apgar is an engineer who said that in July 1998 he visited the lane behind Edward Street, for the plaintiff's solicitors.
There he took photographs, and measured and examined the excavation behind 19 Edward Street, he said.
The excavation had for part of its outer side marks apparently made by a shovel, he said, that being reasonably vertical, and the upper part of that side then sloping out in a more rounded fashion.
The excavation was 9 metres long, about 580 mm deep at its western end, and about 400 mm wide there, he said, the laneway at that point being 5.3 metres wide.
The measurement of 400 mm was from the shed to the near vertical part of the outer side of the excavation, he said, and the more rounded part of the side above that was at least 200 mm more in width.
Mr Apgar said the excavation was a hazard as somebody could fall into it and be injured, and although it was quite common for lanes to have drainage depressions at their sides those had relatively gently sloping sides, and steep edges as here might cause a vehicle to lose control if a wheel strayed there, or a person to put a foot into it and have a mishap.
He would not want the excavation in a public area, he said, and in any event it appeared as if it would drain water into the shed.
Having regard to the nature of the soil he would not expect there to have been much erosion between the date of the accident and that of his inspection, he said.
After his inspection, and consistent with a professional obligation to do so, Mr Apgar said he reported the excavation to employees of the Shire who said that they were unaware of it, and on 4 August 1998 telephoned him to ask what an appropriate way of dealing with it would be, and on receipt of his advice agreed to fill it in.
Plaintiff's medical experts concerning causation
Dr John Raftos has been a registered medical practitioner in New South Wales for about 30 years, and for over 20 of those years has been a specialist in emergency medicine.
His present employment includes that as director of emergency medicine at the Sutherland Hospital, and as a senior specialist in emergency medicine at both St Vincent's Hospital and Sydney Hospital. His present university appointments are as a lecturer in the discipline of critical care and as a clinical tutor in the school of surgery, both in the faculty of medicine at the University of New South Wales.
In a report of October 2005, Dr Raftos stated:
"True dislocation of the knee joint is an uncommon but very serious injury which frequently causes major disability including amputation of the leg and foot.
The popliteal artery is injured in between 35% and 45% of true knee dislocations. Popliteal artery injury causes ischaemia of the leg and, if the ischaemia is prolonged, the tissues of the leg may die and amputation become necessary.
Amputation is necessary in more than 80% of cases of knee dislocation complicated by popliteal artery injury if arterial repair takes place more than 8 hours after the initial injury. Operative repair of the artery within eight hours of the injury results in an amputation rate of less than 20%. Most series report amputation rates of 25% to 30% for knee dislocation complicated by arterial injury, giving an amputation rate of about 9% to 14% for all knee dislocations. Other, more recent, series report amputation rates of 5% to 15% with re‑perfusion up to 12 hours after the initial injury. Clearly, the likelihood of irreversible ischaemia mandating amputation increases with the time from loss of circulation to return of circulation. The studies have shown that amputation is more likely than not to be avoided if surgical re‑perfusion is achieved within 8 hours of the injury. Recent studies have indicated that this holds true up to 12 hours after the injury.
The common peroneal nerve is injured in 25% to 35% of knee dislocations resulting in often‑permanent foot drop and altered sensation in the leg and foot.
The space in which the popliteal artery runs behind the knee is tight and well tethered by ligaments, tendons, and muscles. If the knee joint dislocates there is little space for the popliteal artery to move without being injured. The resulting popliteal artery injury ranges from simple compression and contusion to complete rupture with wide separation of the ends. Reduction of the dislocation may return blood supply to the leg and foot if the artery is simply compressed or contused but if the artery is ruptured, only surgical repair will restore the distal blood supply.
True knee dislocation is rare because of the significant force required to disrupt the strong ligaments that protect the knee. It most commonly occurs in motor vehicle accidents with a force that pushes the flex tibia posteriorly on the femur. It occurs occasionally in a sport setting when there is a significant force applied to the knee in a combination of flexion and rotation. There is an increased incidence of true knee dislocation in morbidly obese individuals because of the increased forces applied to the knee during twisting injuries in these individuals.
Treatment for knee dislocation in the field consists of pain relief when available, immobilisation with splinting, and rapid transport to hospital. Initial treatment at hospital should include pain relief and urgent reduction of the dislocation. Urgent reduction may restore distal blood supply in those patients whose popliteal artery is compressed but not ruptured but will not restore distal blood supply in patients whose artery is ruptured. Careful attention must be paid to the state of perfusion of the leg and foot. The apparent presence of arterial pulses is frequently misleading and so all patients who have knee dislocation should be treated as though they have arterial injury. Urgent vascular surgery consultation is mandatory and this should be followed by prompt surgical exploration with or without pre‑operative arteriography. Successful treatment of arterial injury is time‑critical with the evidence indicating that the tissues of the leg will not survive past 6 to 8 hours without blood supply.
Ms Nairn's popliteal artery was divided when her knee opened laterally at about 0200 hours on 6 September 1997. The arterial blood supply to her leg and foot was surgically restored at about 2200 hours on 6 September 1997. The evidence indicates that the surgical treatment at Royal Perth Hospital was prompt and skilful but that the tissues of the leg and foot had been irreversibly damaged by the preceding 20 hours of ischaemia and consequently amputation was necessary. There is concern that there were avoidable delays in the period between the injury and Ms Nairn's arrival at Royal Perth Hospital and that her leg may have survived if she had arrived at Royal Perth Hospital earlier."
The doctor also expressed the opinion that there was sufficient at the Warren Hospital for "an ordinary skilled doctor to diagnose arterial injury", whilst Dr Horncastle had expressed concern about neurovascular damage, and in those circumstances "the only reasonable course of action was to transfer (the plaintiff) to a hospital with facilities for angiography and vascular surgery".
Transfer to Bunbury hospital was therefore inappropriate, Dr Raftos said, whilst the delay in examination by a surgeon there ought to have been prevented, and the plaintiff ought to have been immediately transferred to an appropriate hospital.
Had the plaintiff gone directly from Warren Hospital to Royal Perth Hospital, and arrived about six and a half hours after her injury, the likelihood that she would lose her leg would have been substantially reduced, he said, and if the surgery occupied one to two hours and re‑perfusion, or restoration of the blood supply to the lower leg, occurred within eight hours of the injury the statistical likelihood of amputation was about 20 per cent.
In evidence, the doctor said he had seen four patients with an injury like the plaintiff's over the years.
The notes of the examination by the triage nurse at the Warren Hospital indicated difficulty in palpation of the dorsalis pedis pulse on the top of the foot, and the foot being cold, so that there might have been vascular injury, he said.
The same applied, the doctor said, to Dr Horncastle's noted references to paraesthesia, lack of movement in the toes and difficulty in feeling the pulse.
The reference noted to the possibility of "compartment syndrome" was, Dr Raftos said, presumably to an injury in an inexpansile compartment which increased the pressure there so that the blood supply ceased, and the tenseness and swelling found in the plaintiff's lower leg were suggestive of that.
However, compartment syndrome in the lower leg would not ordinarily result in an absence of a pulse in the foot, the doctor said, as the pressure was much greater in a major artery such as the popliteal artery, and an increase in pressure in compartment would not therefore result in loss of blood flow in the artery.
As a result there could be muscles in a leg dying from compartment syndrome whilst there was still a blood supply to the foot, he said.
Green and Allen "Vascular injuries associated with dislocation of the knee" was an article in the literature he had relied on, Dr Raftos said, together with others and his own experience.
In relation to the plaintiff's attendance at Bunbury Regional Hospital both Dr Mohamad and Dr Thompson had found what amounted to a surgical emergency requiring expeditious treatment, the doctor said, but despite that a very substantial delay had followed.
Dr Thompson ought to have seen the plaintiff on arrival or had someone else do it, in the light of Dr Horncastle's referral, he said, and if there was a reasonable likelihood of compartment syndrome or vascular injury, a failure to have a prompt assessment amounted to a deviation from the standard of care required.
Dr Raftos agreed that a reasonable departure time from Warren Hospital would have been about 5 am, and ambulance loading might take half an hour, whilst assessment once in Perth could take two and a half hours prior to an angiogram and vascular surgery.
An x‑ray would not be necessary if it delayed departure from Manjimup, he said.
If the plaintiff had consumed five – six Strongbow ciders prior to the accident, he said that would accentuate the hypo‑intensive effect of her blood pressure medication, and could cause disorientation.
The plaintiff's description of the accident was suggestive of ligament tear at that time, and of the knee dislocating then, although he agreed it was possible for her to have dislocated the knee whilst climbing over the fence.
Dr Charles Fisher is a registered medical practitioner in New South Wales, has been a vascular surgeon for over 16 years, and is a senior staff specialist and head of the department of vascular surgery at Royal North Shore Hospital in Sydney, which he agreed was a leading teaching hospital in that city.
In a report sent on 3 November 2005, Dr Fisher said in regard to the plaintiff's care after admission to Warren Hospital, that the initial plan to send the plaintiff to Perth was appropriate, whether by air or road, whilst transfer to Bunbury Hospital was inappropriate, given the suspected neurovascular injury.
Once the plaintiff was sent to Bunbury hospital, it may have been possible for Dr Thompson to delay or interrupt his surgery to review the plaintiff, or the plaintiff might have been sent on to Perth without review, the doctor said, and the delay at Bunbury at assessment and transfer to Perth was significant.
Dr Fisher stated:
"With respect as to whether or not her condition deteriorated, the period during which the patient's condition in this type of injury is likely to deteriorate most significantly is in the region of 6‑12 hours after injury ie at the time she was in Bunbury Hospital."
There was further delay after the plaintiff arrived at Royal Perth Hospital, the vascular team not apparently arriving until later, and the angiogram merely confirming the clinical diagnosis, he said.
In evidence Dr Fisher said that if there was vascular injury, and ischaemia, then time was very important, and a "minimum time" to repair would be six hours and that was getting to the point where damage could occur.
Compartment syndrome developed at 6 ‑ 12 hours post injury, as it took time for the muscles to swell, and that could develop in addition to vascular injury, he said.
It was therefore unlikely the plaintiff had compartment syndrome about an hour after the accident when at Warren Hospital, the doctor said, but likely she had nerve damage, that being supported by a study on knee dislocation amongst the morbidly obese.
The earliest compartment syndrome he had seen was three hours post the event, Dr Fisher said, and he would not do a fasciotomy pre six hours, and would do one post 12 hours even if there were no symptoms.
Had the plaintiff arrived in Perth at 9 am, the damage to her calf muscles would not have been nearly as great as it was and she would have had a chance to keep the leg, he said, whilst at 20 hours the chances of recovery were very low.
In relation to the Perth surgery, it was not possible from the records to say when the blood flow was restored, nor why the operation took so long, four hours being ordinarily a not unreasonable time, but it was possible a plastic shunt could have been inserted prior to the graft, as that would only take a few minutes and could be used if it was expected that the rest of the operation would be difficult, and if it was judged there was considerable ischaemia, Dr Fisher said.
As to the chances of saving the plaintiff's leg after 18 hours, "remote" was too strong a word, the doctor said, although there had been early signs of ischaemia.
However, the "bulk" of the chance was lost after 12 hours here, he said, but there was still a 50 per cent chance, and it was not possible to say more in any particular case.
Dr Fisher did not agree that the limb loss rate after eight hours ought be regarded as 86 per cent, as postulated in some texts and in the 1977 Green and Allen article, and referred to a later article by Wagner and others, with a lower rate, and said that the demographics and mechanism of injury were important, whilst practice did change, including that as to post‑operative management and the use of shunts and heparins.
There was always a risk of the loss of a leg after dislocation of the knee whatever the time to repair of the popliteal artery, he said.
Plaintiff post‑accident
After receipt of her first prosthesis the plaintiff said it took weeks to learn how to use such and there were problems with rubbing on the stump so she could only use it for short periods and required a Velcro belt to about 2002, and a sock, for cushioning.
She also required ongoing surgical operations to the stump and knee, the plaintiff said, to a present total of 8 – 9, including some to improve pain levels, with resultant needs for new prostheses and fresh starts.
The leg still required dressing every day with a dressing and tape to avoid the stump splitting open, the plaintiff said, whilst prosthesis liners were also a problem, due to the nature of the stump and shape of the thigh, and she had tried five or six different types of liner.
The stump or scarring there broke open, became infected, and blistered weekly, the plaintiff said, whilst nerve pain there was very bad, and at work or when driving a car she would unhook the leg.
As she could not cope psychologically without the leg she used it when she should not do so, the plaintiff said.
She was unable to walk any distance, the plaintiff said, as perspiration caused the liner to slip, the knee swelled which affected the scar line, and the prosthesis was over the knee which caused problems with walking along inclines and over slippery surfaces.
Strain was also put on the right knee, she said, by the use of the prosthesis.
Crutches were used by her every day, the plaintiff said, and she also used a wheelchair around the house.
The plaintiff said modifications were required to her house to enable her to better function in it.
Following discharge from the Shenton Park Hospital the plaintiff said she required, and received, assistance from her mother, father, sister, brother and others with personal care, domestic assistance, shopping, gardening and other things.
She also received assistance from workmates at her place of employment, she said.
Work was the only thing that kept her going, the plaintiff said, but she found it exhausting, went from work to home to bed, and had tried various anti‑depressants to assist her.
The plaintiff said she found it hard to do the work, with standing aggravating the nerve pain in her leg, and difficulties being encountered in coping with problem customers and in managing the team of about 12 people in her care, whilst she did not like to ask for help.
She had begun to attend meetings in Perth again only in the last year, she said, and had in the past been offered higher duties but had refused as she did not think she could cope with such.
But for the accident the plaintiff said she would have worked to age 60 – 65 years, as she liked work and had no thought not to continue, and she had expected to achieve a C4 level of employment with Centrelink, her current level being C3/7.
Had she had a child the plaintiff said it was likely she would have taken six months leave then resumed work, with her mother as child carer, as her sister had done.
The plaintiff said that she could not keep her employment up because of the pain levels.
She had experienced emotional instability as a result of her injury, the plaintiff said, with mood changes, anger, teariness, a reduced ability to take pressure, a poor relationship with her husband, who had attempted suicide, an absence of any sexual relationship or shared activity with him, and a need to take anti‑depressant medication.
A variety of other medications or supplements were also required by her, the plaintiff said.
Prior to the accident she had led an active life, the plaintiff said, with activities which included daily swimming, sailing, shooting, camping and 4‑wheel driving, and the accident caused losses included that of any social life.
The plaintiff said she experienced stabbing, sharp nerve pain at the base of the left leg, with blisters and pain from the use of the leg, clicking and swelling in the knee, and back pain after walking or standing, whilst the use of crutches produced neck, shoulder and back pain.
As to the future the plaintiff said she thought she would be wheelchair bound, and would find it hard to work, whilst if she did not work there was no life for her at home.
At the time of the accident the plaintiff said her weight was about 145 kg, and she told a nurse 150 kg.
After the accident, the plaintiff said she underwent stomach banding, and her weight fell to 90 kg, but she experienced stomach complications, and the excess weight later returned.
She now intended to have a stomach by‑pass operation, she said.
The plaintiff said she had been on medication for high blood pressure for about 12 months prior to the accident.
Mr John Evans has been the manager of the Centrelink customer service centre in Geraldton since January 1996, he said, and the plaintiff had been there as a team manager for about nine years, there being 45 staff in the office and the plaintiff having responsibility for between 12 and 15 of those people.
In a letter of September 2000 Mr Evans detailed the personal or sick leave in excess of five months the plaintiff had required to that point, and said the plaintiff had shown "a great deal of strength and resolve at work to participate as fully as possible in carrying out the duties of the position", although her absences had "caused additional pressure on (her), as she believes (she) is not doing full justice to the position or the staff she is responsible for supervising".
The plaintiff's duties included "staff development, planning training for staff, implementing new initiatives, work performance and monitoring of productivity and targets for each (of two) team(s) and dealing with general supervisory issues that may arise", and since the accident the plaintiff had "had difficulty coping with some of the above tasks and had needed to utilise the skills of some of her more experienced staff to achieve the desired outcome", he stated.
The plaintiff's lost opportunities to relieve him as regional manager had had an impact on her career advancement, Mr Evans stated, as had loss of training and development opportunities.
Initially on the plaintiff's return to work she was assisted to and from her car and with access to the building by Ms Janis Watt, he said, whilst Centrelink staff provided extensive support and assistance with duties that the plaintiff would not otherwise have been capable of doing.
Various aids were also provided for the plaintiff, Mr Evans stated.
Mr Evans said in evidence that the plaintiff had gone through a very difficult period in adjusting to the needs of her employment, and was in very considerable pain on some days, and had to remove her prosthesis, but she still came to work and did her job very competently.
Mobility was needed for the employment, and there was a need to deal with difficult customers, and allowances were made for her, Mr Evans said.
However, he said the plaintiff tried to ignore the fact that she had lost her leg, even when in considerable pain.
There were Centrelink team managers meetings in Perth every three months, and also training programmes, Mr Evans said, which the plaintiff had to attend, and as there were difficulties in her flying it was necessary for her to use her own car.
The plaintiff also visited other towns, and six months before Centrelink had established an office in Newman, he said, which the plaintiff attended for up to three weeks at a time, driving a car there, with the journey taking about 10 hours, and also involving an overnight stop.
Mr Evans said he did not want to lose the plaintiff as an employee, and he had been very supportive of her.
He had no doubt the plaintiff could do the job, he said, as she was performing very satisfactorily, and he had no doubt she could also perform the tasks of manager.
Mr Evans said of the plaintiff that "even in her current condition, her abilities are very, very strong."
Janis Watt is an employee of Centrelink in Geraldton and said she knew the plaintiff very well, as both as an employee and a friend, having first met her about 12 years ago when the plaintiff returned to Geraldton, and having worked in the plaintiff's section at Centrelink.
Prior to the accident the plaintiff had been a "vibrant, very confident" person, and "a great boss", she said.
After the accident she told the plaintiff it was time to return to work, and they collected her, and thereafter for about eight months she took the plaintiff in and returned her home, Mrs Watt said.
On her return to Centrelink, the plaintiff did not have the same control over the situation, as a result of lost mobility, Mrs Watt said, so that she carried out filing, printing, file procuration and other chores for her, and the staff all helped, something that went on constantly for 18 months or two years, and which the plaintiff did not like.
She said that she and other employees still helped the plaintiff, who found it hard to "mobilise herself within the office" as she was usually in pain, and took longer to move around, that also being painful.
The plaintiff had "good days and bad days", Mrs Watt said.
The plaintiff also showed changing moods and could be short, she said, which was not like her, and she did not have the same empathy with others as formerly.
The plaintiff required a wheelchair for about eight months on her return to work, and on occasion had to go back to it, used a full crutch sometimes, and an elbow crutch quite often, Mrs Watts said, and took her leg off every "couple of months", which appeared to embarrass her.
Mrs Watt said she had accompanied the plaintiff to Perth, as the plaintiff was not able to manage all the items of equipment required, John Evans having given permission for that, and the two having come down in a Commonwealth vehicle.
Plaintiff's treating doctors
Mr Gregory Witherow is an orthopaedic surgeon in private practice and also a member of the department of orthopaedic surgery at RPH, and said he first saw the plaintiff in August 2001 after she was referred to him by Mr Alan Prosser in relation to her left knee.
Following an MRI and arthroscopy he reported in September 2002 that in essence the plaintiff had post‑traumatic degenerative change in the patella femoral joint of her left knee, and that in the medium term she may come to arthroscopy of the left knee, which although difficult he would attempt prior to any form of revision, amputation or arthrodesis.
In October 2005 the doctor stated he had last seen the plaintiff in the previous month, and that due to ongoing discomfort in her left knee he believed that she would come to further surgery, and that in the next two to five years she was likely to come to a knee replacement, or such followed by an amputation, or directly to an above‑knee amputation. He said that he still considered that a knee replacement would be worth attempting.
In evidence, Mr Witherow said that the existence of recurrent skin problems meant there was a fear of infection in the event of a knee‑replacement but a below knee prosthesis worked much better so that the option of knee replacement surgery was to be otherwise preferred.
It was very hard to say what the knee would have been like but for the accident, the doctor said, and the plaintiff did have minor symptoms in her right knee which were not accident caused.
The damage to the left knee was markedly worsened by dislocation caused loss of ligaments, he said.
Had the leg not been amputated the plaintiff would still have a moderately severe impairment following the accident, Mr Witherow said, and would have a functioning knee but with restrictions on the playing of sport.
In that regard, where the popliteal artery was torn the results were variable in regard to the recovery of muscles and there could be a spectrum of results, he said.
Dr John Pollard reported in November 2000 that he had been the plaintiff's treating doctor since January of that year, during which time she had experienced recurrent problems with fitting of her prosthesis, further exacerbated by a related patella‑femoral syndrome, and had had considerable discomfort, which had partially responded to treatment with an anti‑inflammatory drug.
In a report of November 2005 the doctor stated that he or his colleagues had seen the plaintiff on 62 occasions, principally for:
"1.Mechanical issues relating to the stump from her amputation. Consultations have (concerned) dressings, infections, referrals to specialists and to the technician dealing with her various prostheses.
2.Referrals and difficulties pertaining to her morbid obesity, in particular in relation to the Gastric Banding Surgery and review by her Surgeon, Dr Paul Flanagan.
3.Hypertension
4.Psychological morbidity related to her amputation, assessment and treatment of her depressive illness associated with her condition."
Her medication included vitamin B12 injections, endep for neuropathic pain, lexapro, an anti‑depressant, piroxicam, an anti‑inflammatory medication for pain, and acimax, an anti‑ulcer and reflux oesophagitis medication.
Dr Pollard also stated:
"The trauma of her (amputation) and its impact on her life have caused deep and reactive depression. I note that the Psychiatric report describes partially treated major depression. I think that this encaptures the story of the psychological impact of her injuries. I would also agree with the comments of Drs Warner and Marsden in reference to her remarkable stoicism and determination to proceed as far as possible with a normal life both at home and in the workplace.
At various times we have tried different anti‑depressant therapy. Whilst Sandra tends not to reveal the depth of her feelings readily she has been tearful on occasions in surgery. She has been open to suggestions of therapy. She is currently stabilised on lexapro and endep. She did receive some counselling following her amputation and some relating to marital difficulties which resulted from her husband's depression (in part related to Sandra's injuries) and her reactive depression to the loss of a limb and the ongoing problems with pain and infection in the stump.
From the point of view of her General Practitioner I believe that the continued necessity for ongoing surgery and the resultant pain, disruption to her life and healing process are going to place further heavy pressure on her psychological resources and mood. I believe therefore that she will require ongoing medication and would highly recommend prolonged therapy from a clinical psychologist. The therapy through a clinical psychologist will not be available through the public system and I would request that the cost of prolonged therapy … be considered".
Dr Pollard said that the plaintiff had had psychological difficulties throughout the time he had seen her consequent on the amputation, and physical incapacity arising from it, with depression which was part due to her involvement in the litigation process, and treatment by a psychiatrist was an alternative to the counselling he had suggested.
An opportunity would exist when the litigation came to an end to begin anew, he said, and that is when he would refer the plaintiff for psychotherapy.
When first seen, the plaintiff also had problems with her right knee, the doctor said, from which it appeared that a total knee replacement might be required there.
He said it was a matter of conjecture whether the amputation had caused problems for the right knee, but the plaintiff had a patella – femoral syndrome in each knee.
The plaintiff's B12's injections were unrelated to the accident, the doctor said.
He agreed that weight loss would help the plaintiff.
Dr Anne Brady is a registered medical practitioner, and since 2002 a consultant in rehabilitation medicine with a particular interest in amputee rehabilitation, and said that the plaintiff became a patient of hers at about that time.
In a report of December 2004 the doctor said she had reviewed the plaintiff who then had several problems, including nerve related stump pain, made worse by standing or walking, and spread over the entire stump, left knee pain, which limited mobility and ability to walk a distance, lower back pain, and recurrent blisters and ulcers on the stump, and the doctor had recommended the plaintiff see Dr Sean Hamilton with a view to a further attempt at revision.
As a result of the above things the plaintiff complained of constant tiredness and fatigue, with sleep disturbance, difficult concentrating at work, and short term memory problems, the doctor said, and amongst other problems the plaintiff had suffered severe losses emotionally and psychologically, with significant depression, and difficulties in her marital relationship, whilst she also had difficulties performing her work duties.
The plaintiff would in the future require various items for or different forms of her prosthesis, various forms of treatment, counselling, home modifications, and mobility aids, Dr Brady said, although she said in evidence that in relation to the prosthesis it was difficult to predict what her needs would be, as to this point she had not been stable.
The doctor also said in evidence that the plaintiff had nerve damage to the stump, and Gabapentin was recommended, whilst an injection to the stump had been effective only once and the relief was not sufficient to make it worthwhile again.
The stump pain was permanent, the doctor said.
The plaintiff's stump blisters and ulcers were in the very severe category, the doctor said, and as tissues wasted and bones became more prominent over the years further problems would be caused, whilst the plaintiff also had a lot of excess skin.
The plaintiff was limited in her physical activity, the doctor said, and in relation to her psychological state had shown depression and a flat effect, particularly over the preceding 12 months.
Dr Brady said the plaintiff had done very well, and most people with her pain would not have been able to work.
If she became an above knee amputee the plaintiff was likely to have difficulty walking at all, the doctor said.
As to the plaintiff's future work capacity Dr Brady said she did not know that she would guarantee the plaintiff would work to age 65 years, and that if her work remained as it was, and she continued to receive help, she may go on, but if she lost her job the doctor did not think the plaintiff would get another one.
In relation to the plaintiff's need for prostheses, and apart from specific features, including a dynamic response foot, Dr Brady said in her report that the plaintiff would "require replacement sockets every 1‑2 years and replacement prosthesis (sic) every 3‑4 years according to wear and tear. (The doctor) would also recommend that she obtain a water leg for use both in the shower and swimming."
Dr Brady agreed in evidence that the frequency of socket and prosthetic replacement would in the future be partly dependant on the plaintiff's success in losing weight, that it was difficult to predict now what the plaintiff's future requirements in terms of prosthetics would be, and that she had recommended the plaintiff have two prosthesis, an everyday prosthesis and a water prosthesis.
Dr Fisher considered a reasonable time for an operation of the kind here was four hours, and that had the plaintiff arrived at 9 am, she may have been alright.
Dr Raftos considered the operation might take a lesser time.
Given the above, and having regard to all of the relevant evidence, I consider the first defendant's breach did materially contribute to the loss of the plaintiff's left leg and was causative of that injury.
In relation to the second defendant, had the plaintiff been immediately seen by Dr Thompson, as she should have been, and then sent on her way again, she would have arrived at RPH in time for a successful revascularisation.
The first and second defendants also submitted in closing that an allowance ought be made for "the possibility that amputation would have occurred in any event."
I note there was no plea in the joint re‑amended defence in relation to that.
Having regard to the evidence, it is said on behalf of those defendants that any award based on amputation of the plaintiffs left leg ought be "discounted by at least 80 per cent."
I do not agree with that. Counsel for the first and second defendants further pointed out that Chappel v Hart is inconsistent with the making of an award for loss of a chance. This submission was inconsistent with that concession, and with the further decision of the High Court in Naxakis: see in particular Gaudron J at 278‑281.
Duty of care of third defendant
The third defendant, as the responsible local authority, had the care and management of the lane: Local Government Act 1995 WA s 1.4 and 3.53(2).
Although the lane, strictly speaking, contained only a small portion of the trench, in reality it extended to the rear of the built portion of each property, whether a fence or, as in the case of the fourth defendants' property, the rear wall of a shed, such areas having largely been gravelled and graded, and the third defendant, having taken upon itself the task of management of the land within those perimeters.
The third defendant was, it could be said, therefore in de facto occupation of that portion.
In those circumstances, I consider the third defendant owed a duty to those persons who traversed the lane that was unaffected by considerations of whether a hazard fell within or without the portion under the third defendant's specific control.
The duty on the third defendant arose in the manner described by Gummow J in Vairy v Wyong Shire Council (2005) HCA 62 at par 81:
"The basis upon which a duty of care, owed to members of the public who use public premises, is imposed upon statutory authorities responsible for the control and management of those premises was explained by Hayne J in Romeo104:
'It has now long been held by this Court that the position of an authority…which has power to manage, and does manage, land which the public use as of right is broadly analogous to that of an occupier of private land. It is the management of the land by the authority which provides the necessary relationship of proximity between authority and members of the public.'"
The judge went on to point out that to so describe the basis of the duty was not to assert that the "mere circumstance" of a power of management was sufficient to enliven the duty there alleged, and that where powers of management were at least quasi legislative in nature, "their exercise [could] not be compelled or constrained by a common law duty of care."
Vairy was a diving case and Hayne J said, as to the nature of the court's task (par 105):
"The central issue in the appeal is whether the Council breached a duty of care it owed to the appellant by not erecting one or more signs warning against, or prohibiting, diving from the rock platform. Resolving that question, a question of fact, hinges critically upon recognising that what has come to be known as the "Shirt calculus" is not to be undertaken by looking back at what has in fact happened, but by looking forward from a time before the occurrence of the injury giving rise to the claim. The several questions described by Mason J in Wyong Shire Council v Shirt are to be asked and answered with that perspective. Thus, before the appellant was injured, would "a reasonable man in the [Council's] position…have foreseen that his conduct involved a risk of injury to the [appellant] or to a class or persons including the [appellant]" If the answer to that question is affirmative, "it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk". As Mason J went on to point out:
'[t]he perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.'"
The third defendant does seek to invoke a statutory modification or a melioration of any duty here, in the re‑amended defence par 4:
"4.Further and in the alternative to the allegations pleaded in paragraph 4 of the Re‑Amended Statement of Claim, the Third Defendant is entitled to the benefit of section 9.57 of the Act in that:
(a)the Third Defendant was under no duty to take active measures for the safety of those using the lane against any alleged danger which made the lane unfit or unsafe for normal use;
(b)the Third Defendant is not liable for injury, loss or damage alleged by the Plaintiff by reason of any failure on the part of the Third Defendant to repair or maintain the lane."
I do not agree the section has that effect.
The plaintiff in the re‑amended statement of claim pleads an array of duties, and breaches thereof, in relation to the third defendant.
Those includes, in par 23, breach of a duty "to carry out maintenance and/or repairs of the lane in a competent workmanlike manner."
Reference is then made, by way of particulars of negligence, to past grading of the lane, and it is asserted that the purpose thereof was "inter alia, to level the surface…and render the lane suitable for pedestrian and vehicular traffic" that the third defendant failed to fill in the trench, and that grading increased the depth of the trench.
It is the case that the trench of the rear of the fourth defendants' land was left open on completion of the shed there.
However, by September 1997 at least, the trench resembled more an open drain or ditch than a cut trench, having gradually sloping sides away from the shed wall and a relatively narrow bottom.
Apart from the potholes in the lane, there were other similar irregularities in the surface of the lane, including an area at the entrance off Moore Street and an open drain at the rear of a number of houses, from 11 Edwards Street on.
The drains, potholes and other irregularities, along with the trench, were things which could produce a stumble and fall from a pedestrian who traversed the lane and walked into one of them.
It could thus be said that there was a foreseeable risk of injury to pedestrians who walked down the lane.
The third defendant, as the responsible local authority and occupier of the lane therefore had a duty to take reasonable care to avoid unnecessary risk of injury to the plaintiff as a member of the class of pedestrians who might traverse the lane.
As appears, what that duty required, if anything, is to be determined by a reference to the Shirt calculus so‑called.
In that regard, and with reference to the trench at the rear of the fourth defendants' land, the risk was a very slight one, for, as Mr Brian Connolly said, the proximity of the trench to the shed meant that a pedestrian would have to be very close to the shed to step into the trench, and it was unlikely someone would progress down the lane in that fashion.
Further, the presence of the trench would be obvious to anyone going down the lane in daylight hours.
The existence of the other irregularities would also alert a pedestrian to the fact that the lane, which was not bituminised, had an imperfect surface.
The lane was not a footpath, or even a road.
The lane was not there for pedestrians to be able to gain access to properties in Edward Street, there being a dedicated footpath in that street.
Mr Walker, who used the lane frequently, had been aware of the trench, but did not consider it to be a hazard.
Mr Vlahov impressed as a responsible man, who was likely to have carried out his employment with the Shire with care, traversed the lane periodically and did not note the trench as a hazard, even when he returned to the lane after being notified of the plaintiff's accident.
In Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512, Gaudron, McHugh and Gummow JJ said (par 163):
"The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes."
Gleeson CJ had earlier stated (par 6-7):
"In England, the common law rule which the applicants in both matters seek to challenge was abolished by statue in 1961. it then became easier for a pedestrian who was injured by falling on a road or footpath to succeed in an action of damages resulting from failure on the part of the responsible authorities to maintain and repair the road or footpath. Even so, when general principles of negligence, unqualified by any rule of immunity, were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land.
The statement of Callinan J referred to with approval above was to the following effect (par 355) at 639.
"There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this. The applicant herself admitted in cross‑examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernable difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level."
Those statements are in my view applicable to the position of the trench in the lane here, at least in daylight.
Was the third defendant then obliged to either light the lane, or to improve the surface so that it was without such irregularities, in order to guard against possible injury to those pedestrians, including the plaintiff who might chose to walk down the lane at night, without arming themselves with a torch or other light.
In my view that ought be answered in the negative.
I should add that the plaintiff sought to distinguish the presence of open drains from the trench here, on the apparent basis that the former, although similar, served a purpose, whilst the latter did not.
Although social utility is a relevant factor in determining whether there is a breach of duty, in the circumstances of the present case, I do not consider it could be said that the Shire was under a duty to see that the trench did not remain in the laneway, but was able to leave open drains, even though the chances of someone falling into the latter in the dark was as great, if not greater.
Finally, liability was also sought to be sheet at home by the plaintiff against the third defendant on the basis of alleged breaches of various duties said to have arisen in relation to the construction of the shed.
However, in that regard, there would seem no reason to reject the evidence of Mr Bush to the effect that the Shire was not under an obligation to carry out an inspection of the construction work.
In my view the Shire is not liable to the plaintiff in relation to the injury suffered by her.
Claim against fourth defendants
The plaintiff alleges and the fourth defendants admit, in their defence t the re‑amended statement of claim, that they were the "occupiers of premises situated at 19 Edward Street, Manjimup."
However, it is also alleged by the plaintiff, but denied by the fourth defendants, that the "trench was situated on land in the possession or control of the fourth defendants".
The fourth defendants say alternatively that if that was the case they "did not know nor ought they reasonably have known that the trench was situated on land in their possession or control", and that at all relevant times the Shire "exercised control and management" over the lane and trench by its activities there.
It is then denied that the plaintiff was owed any duty of care.
The Occupiers' Liability Act 1985 WA (the Occupiers' Liability Act) provides relevantly:
"4(1)Sections 5 to 7 shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers –
(a)to that person;
. . .
Which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of premises is by law responsible.
(2)Nothing in sections 5 to 7 shall be taken to alter the rules of the common law which determine the person on whom, in relation to any premises, a duty to show the care referred to in subsection (1) towards a person entering those premises is incumbent.
5(1)Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
. . .
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to –
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person."
In Westralian Caterers Pty Ltd v Eastment Limited (1992) 8 WAR 139, 146 Malcolm CJ (with whom Franklyn and Murray JJ agreed) said, as to the operation of the Occupiers' Liability Act:
"The purpose of the Occupiers' Liability Act was to achieve by statute what was achieved by the development of the common law by the decisions of the High Court. The statutory provisions did not create a new cause of action for breach of statutory duty. What they did was to replace the former common law rules regulating the standard of care owed by occupiers to persons entering the premises in given situations, by a single standard of care in terms of the general duty of care referred to in Donoghue v Stevenson.
In other words, the statute did no more than reform the content of the duty of care at common law in the case of occupiers for the purpose of the common law action for negligence. Thus, s5(4) sets out a number of considerations relevant to 'determining whether an occupier of premises has discharged his duty of care'. That duty of care is the duty, the content of which has been defined by the statute, but only for the purposes of simplifying the law governing the cause of action in negligence against occupiers. There is nothing in the statute which would have the effect that the cause of action in negligence at common law against occupiers has been converted into a cause of action for breach of statutory duty."
The care thus required to be exercised by an occupier is that which is reasonable in all the circumstances of the case.
The fourth defendants of course say they were unaware they were in occupation of that part of their land which contained portion of the trench.
However, that could never be an answer to an allegation of negligence, as personal fault, or an absence of it, is not germane to a claim of that kind: see Fleming, "The Law of Torts" 1992 (8 ed p.102).
Rather the issue is whether the imposition of a normative standard of conduct would result in a conclusion that there was a failure to act reasonably.
Hence no doubt the additional plea that the fourth defendants ought not reasonably have known that part of the trench fell within their land.
There is an onus on the fourth defendants to make good that assertion, and a failure to enquire as to the boundaries on purchase must in my view be fatal for such a plea.
In any event a reasonable person in the position of the fourth defendants would in my view have been put on notice by the existence of the trench, which plainly, and as Mr Hargreaves believed, had been dug by the shed builder in order to construct a foundation for the shed, and measurement of the boundary would then have revealed the true state of affairs.
That the trench was used to rest a piece of steel against the shed is relevant to the question whether Mr Hargreaves at least believed the trench was within their land.
However, in my view the more likely inference on the whole of the evidence of each is that neither turned his nor her mind to the question of where the rear boundary of their property precisely lay, and that the evidence in each case, although given honestly, was conditioned by that fact and the events which subsequently occurred.
There was, I would find, a duty of care owed by the fourth defendants towards the plaintiff as a pedestrian traversing that part of their property which abutted the lane.
That duty was not, and could not, be ameliorated by the fact that the Shire had taken it upon itself to carry out activities on that part of their land which abutted the lane, save to the extent that such diminished any danger that would otherwise be present.
There was however no breach of the duty, given the matters already referred to in relation to the plaintiff's claim against the Shire.
Damages
The loss of her left leg below the knee constitutes a very significant disability for the plaintiff, whose evidence I generally accept as to the effect of the injury on her.
The plaintiff's weight exacerbates the disability.
The plaintiff was obese at the date of the accident and the defendants must take the plaintiff as they found her.
The plaintiff plainly made a serious attempt to lose weight after the accident, and was reasonably successful in doing so until there was a problem with her stomach banding.
It would be reasonable to assume, given the availability of an alternative procedure, that the plaintiff is likely to again reduce her weight in the future.
As a person who was obese the plaintiff was at some increased risk of dislocation of the knee, and possible rupture of the popliteal artery, and whether, but for the accident, she would have reduced her weight is a matter of conjecture.
Absent that, the plaintiff was also at increased risk of some knee dysfunction in the left leg, as evidenced by the condition of her right knee.
There is every likelihood the plaintiff will require at least a knee replacement in the left leg, as stated by Mr Witherow, and an above knee amputation of the left leg is also not unlikely.
That would increase the plaintiff's level of disability.
The plaintiff, as stated, says she will not be able to continue in her employment.
That belief appears genuinely held but is, in my view, likely to prove incorrect, and the plaintiff's depression, which is likely to improve once these proceedings are out of the way, is undoubtedly a factor contributing to that belief.
The plaintiff plainly has real resolve, and her post‑accident work performance generally, including the operation of the Newman office, together with the medical evidence, show that she will be likely to be able to remain in her employment.
If the plaintiff lost that employment, and if she was to attempt other work with similar duties, then, as Dr Marsden said, she would need a compliant employer.
I do not however share Dr Brady's view that the plaintiff would not be able to find other work.
In that regard the plaintiff's present duties are extensive, and substantially in excess of what might be described simply as clerical work.
Further, I should say that I was greatly impressed by the plaintiff's undoubted intelligence, and Mr Evans, her superior at Centrelink, clearly has a similar opinion of her.
As I pointed out to Mr Viner in the course of evidence the work now carried out by the plaintiff is simply what is expected of her, with assistance being readily provided on behalf of the employer because of the value attributed to the plaintiff as an employee, rather than out of sympathy.
Centrelink is of course a public body, and there is nothing in the evidence to indicate the plaintiff's employment might in any way be precarious.
I accept that if for any reason the plaintiff did leave that employment she may well find it difficult to obtain equivalent employment, and note that it is for loss of economic capacity that is or might be productive of financial loss that a plaintiff is to be compensated.
Further, as all these matters relate to the future allowance must be made for all possible eventualities, unless remote: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
As stated, and in relation to the claim against the first defendant and the second defendant, a reduction must be made to an allowance, where appropriate, to reflect the possibility that the plaintiff would in any event have been left with some dysfunction of the left leg.
There is some overlap in the damages sought for future loss of economic capacity and those for future voluntary assistance.
The heads of damage, and my findings in relation to each, are as follows:
·General Damages
I assess $120,000 under this head.
·Past loss of economic capacity and superannuation
The plaintiff claimed $30,000 under this head.
First it was said the plaintiff's level of pay was less at various times than it would otherwise have been, and an amount including interest of $26,458 was claimed for that.
That sum was then "rounded up" to $30,000 by the inclusion of a claim for lost superannuation, lost sick leave credits and lost higher duty allowance.
The defendants accepted the quantum of the latter part of the claim, which is $3,542.
The first part of the claim was disputed, on the basis that there was simply no evidence to support that beyond general assertions, and I accept that is the case.
Nonetheless, there is evidence of some likely loss, and I allow $15,000.
I then allow against each of the defendants the sum of $18,542.
·Future loss of economic capacity and superannuation
The plaintiff claims $393,464 for wages and superannuation under this head, based on a pay level two points above the Act, and on assumptions that the plaintiff will be unable to work after 7 November 2013, and would otherwise have worked to 13 December 2031.
Counsel for the first and second defendants submitted, given the uncertainty surrounding both hypothetical and future health considerations, that only a global sum could be awarded.
With respect, I agree with that.
In considering an appropriate award it is however useful to have regard to the present value of the plaintiff's net pay, in her current position, to age 65 years, that being $594,849 ($851 x 699) before any deduction for the "usual" contingencies: Black v Motor Vehicle Insurance Trust [1986] WAR 68.
The plaintiff's pre‑accident health was of course such as to make it necessary, in the event of a calculation, to take into account additional adverse contingencies, but those would have to be balanced against positive contingencies arising from the plaintiff's abilities, and it would seem reasonable not to make any further adjustment.
As to the quantum of the loss, her working life will certainly be much harder for the plaintiff than it otherwise would have been, to the point where one possibility is that she will be confined to a wheelchair.
The allowance must in my view be a significant one, and I consider $175,000 would be reasonable.
I note that is of the order of 30 per cent of the income pool referred to.
As to lost superannuation, in modern times there has been a deduction of 30 per cent from the notional weekly employer contribution, to reflect taxation, fund expenses and the possibility of fund losses.
The contribution here, which must be a minimum of nine per cent, on the present pay is $101 per week, and after the deduction referred to, the present value of the sum involved is $49,419.
An allowance of the same proportion as that of the wages provides the sum of $14,539.
The total award under this head, in relation to each of the defendants, is $189,539.
·Past voluntary assistance
It is the case that the plaintiff has received assistance from family members, particularly her mother, and that she has had a need for personal, domestic and other household assistance, that varying from time to time.
The plaintiff has received little assistance from her husband, but he has also benefited from the assistance provided to the plaintiff.
As is usual, no attempt was made in the evidence to identify services which benefited both the plaintiff and her husband, those which benefited the plaintiff, and those which benefited her husband alone.
The last are not compensable, an award being to compensate the plaintiff for an accident created need.
As with any other case where the evidence does not provide a total picture a court must do the best it can.
Here the plaintiff claims 14 hours per week for the period from the accident to July 2000, and thereafter 10 hours per week.
That appears reasonable, having regard to the evidence, and I note the first defendant and the second defendant accept the rate of 10 hours per week at least.
Those defendants also submit that a deduction of one third ought be made for those services which benefited the husband alone.
That for the reasons set out above is a matter of judgment and one about which views could reasonably differ.
I would deduct one quarter of the value of the hours to reflect the value of services which were for the husband's benefit alone.
The hourly value of the services was not put in issue.
The total amount claimed by the plaintiff, to 7 November 2005, is $116,028, with a present hourly rate of $30.
The total to date is then $125,508, and after a deduction of 25 per cent a sum of $94,131 is derived.
The plaintiff seeks interest on any allowance at a half rate of three per cent from the date of the accident, and there is nothing to indicate that ought not be allowed, the relevant sum being $24,709.
The total allowance under this head is then $118,840.
·Future voluntary assistance
The plaintiff is 40 years of age, and a reasonable life expectancy is 43 years years: Luntz 4 ed p 705.
The claim under this head is made on the basis of there being an ongoing need at the current level of provision of services.
The first defendant and the second defendant submit that in addition to a deduction for services which solely benefit the husband, there ought be an allowance for adverse contingencies of 15 per cent, to reflect the plaintiff's pre‑accident state of health.
Although, for the reasons given above I would deduct 25 per cent for the value of services which benefit the husband, I would not make any deduction for adverse contingencies, as in the event that the plaintiff does experience an adverse outcome in relation to her left leg she would be likely to require significantly more than 7.5 hours assistance per week, so that again I consider the contingencies are approximately balanced.
The plaintiff is then entitled to an allowance of $186,750 (7.5 hours x $30 x 830) and I award that under this head.
·Special aids and appliances
The plaintiff claims $525,133 under this head, largely made up of the initial and then replacement cost of four left lower limb prostheses, together with liners, sockets, covers and other parts, and fees, although $18,880 is included under the heading of "other items", for wheelchairs, crutches and other aids.
The four prostheses are those designated "everyday", "sports", "water", and "high heel".
Dr Brady of course recommended the plaintiff have just two prostheses, an everyday prosthesis and a water prosthesis.
On the other hand, Ms Scates, the plaintiff's prosthesetist, said the plaintiff's best chance of weight control would come with the four prostheses sought, although she then said the high heel prosthesis was for "formal dress occasions" and could not be worn by a person with a weight in excess of 100 kilograms.
The Limb Clinic principal Mr Hills expressed the same view.
Mr Hills, who is not independent, with his potential interest in the outcome, was not directly involved with the plaintiff, and in any event I was unimpressed with his evidence, for reasons which include the particular matters referred to in the earlier summary of his evidence.
The defendants acknowledge the plaintiff is entitled to an allowance for an everyday prosthesis, and a water prosthesis, as well as to the allowance sought for other items.
I would not find that the plaintiff has a reasonable need for a high heel prosthesis, such as to justify an allowance of the kind sought.
I note the plaintiff would not presently be able to use that prosthesis, given her weight.
However, I consider on balance that an allowance for a sports prosthesis would be reasonable, given the level of the plaintiff's pre‑accident physical activity and her particular need to engage in as much exercise as possible, that the plaintiff if able, would be likely to extensively utilise such, and would presently be able to get some use from it.
I also accept the assessment of Ms Scates that the plaintiff would benefit from the provision of that prosthesis.
There is an issue surrounding the provision and hence cost of a high definition cover.
Ms Scates in her report referred to the provision of such as part of the high heel prosthesis, but Mr Hills made it part of the every day prosthesis.
It is clear from the evidence of the latter that such, which would come at a cost of $12,000, and would require regular replacement, so that the plaintiff claims $95,769 for this item alone, are not in ordinary use amongst the amputee community, whilst other alternatives are available.
I do not consider the cost of a high definition cover can reasonably be laid at the door of the defendants.
In relation to liners and check sockets, I agree with the defendants that only two of the former and one of the latter ought be allowed for at any one time, the evidence of Mr Hills to the contrary being something I do not accept, and given the evidence of Ms Scates.
Three years ought be allowed for replacement of each prosthesis, given the evidence of Dr Brady.
I then adopt the calculations of the first and second defendants in relation to each prosthesis, those being for the everyday prosthesis, without a high definition cover $90,006, for the water prosthesis $30,976, and for the sports prosthesis $60,781.
When the plaintiff's claim for other needs of $18,880 is added to those items, the allowance under this head is $200,643.
·Special damages
The plaintiff apparently proceeded on the basis that evidence would not be called and an agreement would be forthcoming.
That did not occur.
I make no award under this head, but will hear further from the parties.
·Future medical expenses
The sum of $34,900 is claimed by the plaintiff, and accepted by the defendants, and I allow that, together with an allowance for future psychotherapy, and would round the allowance off at $36,000.
·Future travel expenses
The plaintiff's claim is predicated on the allowance given to the plaintiff by her employer for travel in a six cylinder vehicle of 63.3 cents per kilometre, and $55,610 is sought "on the basis of further travel to Perth at (the) same frequency of past travel."
The defendants submit that an analysis of the plaintiff's evidentiary material fails to justify the claimed frequency, whilst the rate was not explained by the evidence and is high, and put forward a competing assessment.
The rate does appear generous.
I am not in a position to make a precise calculation and doing the best I can, I allow $30,000.
The total of the heads of damage is then:
General damages $120,000
Past loss of economic capacity and
superannuation $ 18,542
Future loss of economic capacity and
superannuation $189,539
Past voluntary assistance $118,840
Future voluntary assistance $186,750
Special aids and appliances $200,643
Special damages ‑
Future medical expenses $ 36,000
Future travel expenses $ 30,000
$900,314
I will hear from the parties as to special damages.
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