Smith v Queensland Rail

[2006] QSC 19

SUPREME COURT OF QUEENSLAND

CITATION:                  Smith v Queensland Rail [2006] QSC 019

PARTIES:                    IAN SMITH

(Plaintiff)

v  

QUEENSLAND RAIL    

(Defendant)

FILE NO:  345/04

DIVISION:                   Trial Division

DELIVERED ON:       6 February 2006

DELIVERED AT:        Rockhampton

HEARING DATES:     31 January 2006, 1 February 06

JUDGE:   Dutney J

ORDERS:1)   Judgment for the plaintiff against the defendant in            the amount of $91,485.03

CATCHWORDS:          DAMAGES – MEASURE OF – PERSONAL INJURIES 

DAMAGES – ECONOMIC LOSS – QUANTUM –        Where Plaintiff unable to work overtime due to personal      injury – Where also unable to work overtime for reasons   unconnected to the injury – Whether entitled to damages for economic loss.

COUNSEL:Mr G C Crow for the Plaintiff

Mr R A Myers for the Defendant

SOLICITORS:              Chris Trevor & Associates for the Plaintiff

McInnes Wilson for the Defendant

1. Mr Smith, the plaintiff, was injured in an accident in the course of his duties as a locomotive driver for Queensland Rail (“QR”), the defendant.  Liability was not in issue.  Mr Smith suffered his accident on 27 October 2002.  At that time Mr Smith was 39 years old.  He was born on 13 April, 1963.

1. There was general uniformity in the evidence of the two orthopaedic specialists.  Both agreed that Mr Smith had suffered a musculo/ligamentous injury to his lumbosacral region.  In addition to the muscle injury, Mr Smith had degenerative changes in his thoracic spine which appear on the evidence to be asymptomatic.  He also had early degenerative changes at L5/S1.  Both specialists agreed that the combination of the injury and the degenerative changes resulted in a whole of person disability of 5%.  Of this, Dr Macfarlane for the plaintiff attributed 2% to the accident and Dr Licina for the defendant attributed 3% to the accident.

1. Mr Smith described his symptoms as a tightening, intensifying around his lower back, resulting in his having to stretch and move around.  He described the sensation as “quite painful”.  In the quantum statement prepared by his lawyers, Mr Smith described the pain as being “a high level of back pain”.  Mr Smith takes analgesics for the pain and uses heat packs once or twice a week.  Mr Smith’s sleep is affected by the painful episodes.  As a result, he is often irritable.

1. I accept the medical evidence that the pain is the result of muscle spasm and I also accept Dr Macfarlane’s opinion that the condition is now chronic.  The episodes occur once or twice a week.

1. In evidence Mr Smith said that as a result of the pain, he could no longer be involved in little athletics with his children or mow the grass.  He still coaches junior football.  This evidence was confirmed by Mrs Smith.  Before the accident Mr Smith was a keen fisherman.  He often took his children with him.  He no longer goes fishing.

1. Both orthopaedic surgeons reported Mr Smith as doing the mowing and gardening as at the time of their examination.  Dr Macfarlane’s examination took place on 2 September 2003, almost a year after the accident.  Dr Licina’s examination was on 23 April 2004, about 18 months after the accident.

1. Little turns on this discrepancy.  What it suggests in the context of other evidence is that the disability from which Mr Smith suffers is annoying rather than disabling and over time he has chosen to avoid the annoyance by ceasing activities which he still can and otherwise might have undertaken.  The other evidence to which I refer is the evidence relating to “catch jobs” or extra shifts, which was the main focus of the trial.

1. In relation to the medical evidence I should note that Mr Smith was also examined by Dr Blue whose report was in evidence.  Dr Blue saw Mr Smith on 24 June 2003.  Dr Blue thought that Mr Smith had completely recovered.  Dr Blue was not available to give evidence.  In view of his unavailability and of the agreement between the two doctors who did give evidence I prefer the evidence of the latter to the extent that there is disagreement with Dr Blue.

1. In addition to chronic muscle spasms, Mr Smith suffered minor injuries to both arms and his left knee which have healed unremarkably.

1. Having regard to the extent of Mr Smith’s injury, its chronic nature, his age and his social activities before and after the accident I assess general damages for pain and suffering at $40,000 of which I attribute $25,000 to the pre trial period.

1. The main focus of the trial was on economic loss.

1. Mr Smith is still employed by QR as a locomotive driver.  Following the accident Mr Smith returned to light duties on 11 November 2002 and full duties on 21 November 2002.  After his return to full duties, Mr Smith’s back pain worsened until on 16 January, 2003 while walking a train he became incapacitated and had to be driven back to the locomotive. 

1. “Walking a train” involves one of the two drivers walking the length of the train.  The trains are fitted with alarms that are triggered if some inappropriate part of the train makes contact with the track.  When such an alarm is received it is necessary to inspect the train manually by walking along its length to ensure the problem is not one likely to affect its operation.  The normal train length is about 1.8 kilometres.  The area beside the train on which the driver performing the task is required to walk is usually uneven as a result of its being overgrown with weeds and covered in track ballast.  I accept that it is necessary to “walk the train” about three or four times a year.

1. Following the incident on 16 January 2003, Mr Smith returned to work on 4 February 2003.  He has not had any repetition of the incident.  Since February 2003 however, his regular co-driver Mr Rycen has “walked the train” whenever the track surrounds were rough or uneven.

1. Since February 2003, Mr Smith has completed all rostered shifts notwithstanding any back pain.  When necessary he relieves the back pain either by stretching or taking analgesics.  Although Mr Smith has had a number of days off work on sick leave, the only documented occasion on which his absence was due to his back condition was 18 October, 2005.  Mr Smith did not accept that this was in fact the only occasion he has taken days off because of his back problem but his absences from work did not seem to be more than might have been expected of any worker.

1. The case for Mr Smith was that prior to the accident he did considerable overtime work in order to increase his income.  Since the accident he has not been able to do the overtime because of his back condition.

1. From April, 2003, QR maintains records of the occasions on which drivers are offered overtime or “catch” jobs.  QR also records the reasons offered when catch jobs are refused.  Drivers are able to nominate themselves into one of three categories – those who are not prepared to do catch jobs, those who wish to be offered such jobs but who do not undertake to accept and those who accept all catch jobs.  Mr Smith is in the second category.  There is no suggestion he has ever been in any other category.

1. Mr Smith’s evidence was that he continued to chase catch jobs for about 6 months from February 2003 but thereafter – because of his back pain – he was unable to accept these jobs. 

1. Closer examination of the QR records and of Mr Smith’s responses under cross examination reveals a more complicated picture.  In paragraph 13 of the quantum statement Mr Smith divided the list of occasions on which catch jobs were offered but refused into 119 occasions on which the refusal was because of the back condition and 82 occasions on which he was unavailable for other reasons.  In cross examination, Mr Smith at various times said that the occasions on which the refusal was unrelated to his back condition were from 50% to 70% of the total.  Since December 2004, Mr Smith has not accepted any catch jobs except, perhaps, for one on 2 January this year.  On only one occasion throughout the whole period has Mr Smith expressly identified his back condition as a cause for refusing a catch job.  His reason for this was that he feared that he might lose his job if he disclosed his back condition.  This seems rather an odd explanation from a man who sued Queensland Rail for damages for precisely that condition in 2004 and who, presumably, gave a notice of claim under the provisions of the WorkCover Queensland Act 1996 many months before that.

1. Mr Smith also gave evidence that another reason for his reluctance to take catch jobs was that he was afraid that he would take a train out to Moura or some similar destination and then suffer an episode of back pain and have to be repatriated to Gladstone.  Since this has not occurred in the last three years of rostered driving, I find difficulty in accepting this fear is reasonable. Mr Smith reconciled his being able to complete all his rostered shifts but not to do many of the catch jobs by saying that he was not prepared to take analgesics to do extra work. Although his reluctance to take more analgesics than was strictly necessary is valid, it does reflect a degree of indifference as to whether or not he did overtime.

1. My overall impression of the evidence was that Mr Smith took overtime regularly prior to the accident.  His co-driver, Mr Rycen also took overtime.  The records show that in the four years preceding the accident their incomes were almost identical.  Shortly after the accident Mr Rycen took his name off the list of those available for overtime.  This generally coincides with Mr Smith’s reluctance to accept such work.  Mr Smith and Mr Rycen have driven together for years. As a result they were close friends. Mr Smith did not seem keen to work with other drivers. While I am satisfied that Mr Smith’s back pain has contributed to some of the occasions on which catch jobs were refused, I do not accept that – at least from mid 2003 – Mr Smith was particularly motivated to do such work.  This is confirmed by the frequency with which, even on his own evidence, catch jobs have been refused for reasons quite unrelated to the back condition.  Again, his declining interest in doing catch jobs is not simple.  It is influenced by Mr Smith’s fear of having to walk a train on rough or uneven ground.  Mr Smith has no such reluctance when co-driving with Mr Rycen but fears that if he asks other drivers to walk the train when it is his turn, he will become unpopular.  Apart from this fear of unpopularity, Mr Smith said that even now his back does not preclude him from accepting such jobs other than on some occasions.  Despite this he has not accepted any catch job for more than a year with the possible exception of 2 January 2006 to which I referred earlier. In this period Mr Smith has refused catch jobs on 87 occasions.  I am not satisfied that the fear of unpopularity is reasonable.  Walking trains is infrequent.  Mr Rycen has no objection to doing it when necessary.  There is no actual evidence which suggests that any other driver would take exception to walking the train in place of Mr Smith on the odd occasion it became necessary.

1. Mr Smith is entitled to some compensation for the fact that on at least some occasions his back pain has precluded him from taking catch jobs and will do so in the future.  I do not think that those occasions are more than a small percentage of the occasions on which jobs have been refused.  I do not think the occasions are capable of identification.  In my view, a modest global amount should be allowed both for the past and the future to reflect the fact that Mr Smith has a disability which has some minor effect on his capacity to earn income and places him at a minor disadvantage in the workplace if he were to cease to be employed by QR.

1. For the past I propose to allow an amount of $10,000, representing an arbitrary number of about 40 catch jobs over a little more than three years.  For the future I propose to allow $30,000, both to compensate for some diminution of the ability to earn extra money from catch jobs and for disadvantage on the open labour market.  Mr Smith is fit for most jobs not involving heavy lifting or walking on uneven surfaces.  His working life is unlikely to be diminished as a result of this accident.

1. I am not satisfied that any useful advantage can be gained by looking at wages earned by selected drivers over the years before and after the accident and comparing those wages with the amount Mr Smith earned.  The evidence suggested that the incomes of such drivers were heavily influenced by their personal circumstances.

1. A claim has been made for the cost of attending a pain clinic.  There is reference in Dr Macfarlane’s report dated 3 September, 2003 to the possibility of an assessment by a pain clinic if pain persists.  Dr Macfarlane does not put this any higher than a possibility and it seems to me that allowing half the estimated cost reflects that contingency.  The claim for future physiotherapy is unsupported by evidence and is not allowed. The claims for analgesics both past and future are, in my opinion, reasonable and should be allowed in the amounts set out in the quantum statement.

1. In summary, I assess damages as follows:

Pain & Suffering  40,000.00

Interest on $20,000 at 2% for 3.25 years   1,300.00

Past economic loss [1]  16,615.25

[1] $7,500 plus $6,515.25 paid by QR Comp

Loss of superannuation benefits (past) at 9%     900.00

Future economic loss  30,000.00

Loss of superannuation benefits (future) at 9%    2,700.00

Special damages (paid by QR WorkCover)   1,078.59

Special damages (paid by plaintiff)   857.95

Interest on special damages[2] at 5% for 3.25 year   122.08

[2] The plaintiff only claims interest on $751.30

Future medical expenses   5.830.00

Subtotal   99,178.87

Less refund to QR WorkCover    7,693.84

TOTAL 91,485.03  

1. I give judgment for the plaintiff against the defendant in the amount of $91,485.03.