Victor Kussin v the Commonwealth of Australia [1986] ACTSC 90 (19 September 1986)

SUPREME COURT OF THE ACT

VICTOR KUSSIN v. THE COMMONWEALTH OF AUSTRALIA
S.C. No. 1666 of 1982
Industrial Accident

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Industrial Accident - Assessment of damages - No new question of principle involved.

HEARING

CANBERRA
19:9:1986

ORDER

THE COURT ORDERS THAT there be judgment for the plaintiff in the sum of $86,500.00.

DECISION

This is a claim for damages arising out of an accident (the accident) said to have taken place on Monday, 15 October 1976. At that date the plaintiff was employed as a Stores Supervisor by the defendant Commonwealth in the Department of Housing and Construction.

2. The plaintiff was born in Yugoslavia on 11 June 1918 and was educated apparently to matriculation standard. He served for six years in the Army being demobilised as a Captain in 1947. Thereafter he worked as a clerk in the Public Service until with his wife he emigrated to Australia. Eventually he joined the Department of Housing and Construction in Canberra. He was there employed first as a labourer, then as a storeman and finally as a Stores Supervisor. His duties as a Stores Supervisor were to receive and dispatch stores in and from a section of the departmental store at Kingston and to carry out the necessary clerical work in connection therewith. He was required to do some physical handling of stores but arrangements were made by his superiors to ensure that, as a general rule and as at the date of the accident, he was not required to do more physical handling than was within his capacity having regard to his age at the time. As to this I accept the evidence of the plaintiff that he was told by his superiors to take it easy and that as a general rule assistance was fairly readily available to him.

3. I formed the opinion that the plaintiff was almost obsessively concerned to carry out his duties and this I think explains some peculiarities about the evidence of his employment after January 1977.

4. It is not suggested that he did not suffer an injury to his ankle in the accident. What is in dispute is the way in which he received that injury.

5. The plaintiff gave evidence that immediately in front of the store into which he used receive and from which he used dispatch goods there was what might be described as a bitumen pavement. The pavement was subjected to considerable stress from heavily laden trucks and from heavy objects being dropped on it. According to the plaintiff the surface of the pavement was very broken and rough because of the traffic and the dropping of such objects. In examination-in-chief he said that repairs to the pavement were carried out about once a year but I do not think that was the case since in cross-examination he conceded that when holes appeared they would be repaired within a few days or, at most, three weeks.

6. A witness, John Wayne Hutchings, gave evidence that he had worked as a storeman at the Kingston Stores Depot from 1974 until the beginning of 1978. He described the surface of the pavement as of bituminous concrete. He could not recollect seeing, during 1976, any large holes 4" (10cm.) and up to 7" (18cm.) deep in the pavement in front of the receipts and dispatch section where the plaintiff worked. He described the condition of the pavement in the loading area adjacent to that section as pretty fair considering the amount of heavy transport that went across it. He agreed in cross-examination that the practice was that as holes developed they would be noted and filled in and that the whole of the area was repaired at different stages. I set out a number of questions put to him in cross-examination together with the answers he gave:-

"Certainly you remember seeing holes of at

least one inch in depth? --- Just minor
cracking of the bituminous concrete lifting.
These are the holes that had to be filled
in? --- Yes.
With bitumen? --- Yes.
And occasionally gravel would, I suppose,
come out of the holes because there was
gravel under the bitumen? --- Yes, gravel
underfill, minor gravel would have come out,
yes.
And would be lying around on the bitumen
surface until removed? --- Yes."

7. This evidence is significant in my opinion as indicating the existence from time to time of quite large holes in the pavement since it is unlikely that a bituminous concrete surface designed to take heavy traffic would be of minimal depth. This conclusion makes more credible the plaintiff's evidence that there was a substantial hole in the pavement to which he ascribes the events which caused his injury. However, I doubt that it would have been as big as he suggests it was. I find, therefore, that as a matter of probability there was a hole in the surface of the pavement which was of the order of at least 10cm. (4") deep.

8. During the course of the day on 15 October 1976 the plaintiff received in his capacity as supervisor a box or crate. It measured approximately 122 cms (4ft.) in length, 61 cms (2ft.) in width and 30.5 cms (1 ft.) in depth. It weighed over 50 kilograms. The plaintiff and the driver of the truck which brought the crate lifted it from the flat top of the truck and placed it diagonally on a trolley so that its ends overlapped the trolley's sides. The plaintiff described the trolley as the small one from his store. It was principally of heavy steel with a wooden top between about 152 1/2 cms (5ft.) and 183 cms (6ft.) long and about 76 cms (2ft 6in) wide with three wheels each approximately 25.4 cms (10") in diameter. It had a single wheel at its front near where a T-bar which might be used for pushing or pulling it was located.

9. The particulars of negligence alleged against the defendant include an allegation that the defendant failed "to provide a safe alternate system of unloading the said truck, such as a forklift truck or other motorised conveyance". Even if such a failure were negligent, and I very much doubt that because of the relatively modest dimensions and weight of the crate, I do not see how that failure contributed to the accident which befell the plaintiff.

10. I find on the evidence that as the plaintiff was pushing the trolley backwards, intending to manoeuvre it in that direction for a short distance so that he might the more readily get into a position where he could pull it forward, one of the back wheels of the trolley lodged in a quite substantial hole. This caused the trolley to tilt and the crate to fall from the trolley onto the plaintiff's ankle. In endeavouring to free the ankle he twisted it.

11. I am satisfied on all the evidence that the hole in question had been in the pavement for some appreciable time, that it should have been noted and repaired by those in authority at the Stores Depot and that it was foreseeable that the wheel of a trolley might drop into such a hole with the result that if it were laden its load might fall from the tilting surface of the trolley. In these circumstances there must be a verdict for the plaintiff.

12. Contributory negligence was not alleged against him.

13. The plaintiff alleged in his statement of claim that as a result of the accident he suffered the following injuries:-

(a) shock;
(b) twisted right knee and ankle;
(c) destruction of the tibio-fibula(r) joint below the
knee joint of the right leg;
(d) destruction of lateral miniscus of right knee
joint;
(e) osteoarthritis; and
(f) hypertension.

14. In opening, counsel for the plaintiff said:-

"The parcel fell off the trolley and fell on
his leg and broke several bones in the lower
part of his leg, in his right leg (and)
thereafter he was off work for some little
time and then went back to work and worked on
with a great deal of difficulty."

15. The plaintiff described what had happened to him in the accident. He said that the box slipped and pressed his right foot down. By that he appears to have meant that part of his leg below the right knee. He described the ankle as having been dislocated and said that he had a bad pain straight away in his knee. He scratched his hands causing them to bleed but I find this to have been an injury of minimal importance. He was apparently trapped with the box on his foot for a few minutes and then managed to extricate his leg by twisting it and pulling it. Subsequently he was assisted to a car and taken to hospital. There he waited for some hours. What he described as a soft plaster was applied to his leg. The evidence is somewhat confusing because the plaintiff's English was not fluent but I think he meant that the leg was bandaged appropriately, probably with a light plaster bandage, but that no immobilising plaster was applied to it.

16. The plaintiff said that he had three or four days or so off work but a document, Exhibit B, indicates that he was paid compensation for 8 days from 18 October 1976, a Monday, to the following Wednesday week, 27 October 1976. The same document showed that payments of compensation began again on 17 January 1977 and continued uninterruptedly to the hearing date. No doubt was cast on the accuracy of that document. Indeed, it was tendered on behalf of the plaintiff.

17. I set out some of the plaintiff's medical history so far as it is ascertainable from the evidence. That evidence is generally consistent and, except in some areas to which I will refer specifically, I accept it. After he attended Royal Canberra Hospital on Friday, 15 October 1976 and was there treated, he was seen on 18 October by his general practitioner, Dr Nancy Griffiths. She, giving evidence from recollection, said that he told her that he was unloading a heavy article in the course of his work and that the weight fell on his right leg. As a result he sustained a fractured tibia and fibula and was treated at the hospital. When she saw him he complained of pain. She said he was bandaged. She did not say whether he was bandaged when she first saw him or whether she did the bandaging. She remembers giving him a certificate and advising him to rest. She next saw him on 25 October 1976 when he complained of pain in his knees, particularly the right.

18. Again without benefit of written records, Dr Griffiths recollected that the plaintiff complained about knee pain following a slight accident at work involving furniture when he twisted his knee and, it would seem, his ankle. She described the contact she had had with the plaintiff on that occasion as "an in and out consult". The plaintiff's version of that consultation supports Dr Griffiths' description of it but, speaking apparently of the same incident, he gave evidence in chief that it had happened some years before when he was supervising the movement of furniture in the MLC building and had involved his right hip. He said he did not stop work as a result and kept on working although it seems to have caused him minor difficulty thereafter. He made no complaint about it at the hearing.

19. In cross-examination the plaintiff agreed, and I find, that the incident where he had hurt his hip occurred in about June 1976 and that in August 1976 he had also consulted Dr Griffiths because he had hurt his ankle and his knee at work.

20. On 17 January 1977 the plaintiff attended on Dr Griffiths complaining of great pain in his right knee. She prescribed anti-arthritic tablets and referred him to an orthopaedic surgeon, the late Dr Alex Golski. She saw the plaintiff again on 21 January 1977 after he had consulted Dr Golski. She saw him again in February 1977 shortly before he was to undergo surgery at Dr Golski's hand. She next saw him on 1 June 1977 after he had undergone surgery. She checked his blood pressure as she always did. He had suffered from hypertension for a long time but it was fairly well under control and he was taking medication for it. She saw him on 10 June 1977 when he said he was feeling much better. A week later she saw him again. At that time he had seen the Commonwealth Medical Officer regarding his possible retirement from work. She again saw him a week later and gave him a letter supporting his retirement because of his right knee trouble. She saw him again on 15 August 1977 when she checked his blood pressure and found it "fairly good".

21. At 3 a.m. on 10 September 1977 the plaintiff had a stroke. He was first seen by Dr Griffiths' colleague, Dr Gillespie, and then transferred to the Woden Valley Hospital under the care of Dr Frank Long, a consultant physician.

22. Dr Griffiths was asked questions designed to have her express a view that the stroke was attributable in some way to the plaintiff's working conditions and, no doubt, specifically to the accident. Although she described the mechanical causes of strokes she would express no view about the cause of the plaintiff's stroke, saying that she had none. The evidence, including that of Dr Long, fails to establish that the stroke was due in any way to the accident.

23. She saw the plaintiff shortly after his discharge from hospital following his stroke in November 1977 when his blood pressure was very good. She saw him again in December 1977 and in January 1978 when, except for his right knee, he appeared to be quite "good". (He had been compulsorily retired from work on 14 September 1977.) She expressed the opinion that, had the plaintiff had no knee problem and continued working up until the time he had the stroke, he might have been able to go back to work about six months after it.

24. In cross-examination she agreed that he was having problems with memory for a while after the stroke and certainly as late as 4 January 1978. She said that his memory seemed to have improved gradually after that.

25. I am satisfied that when the plaintiff returned to work after the accident he worked under difficulty because of continuing pain in the ankle until he was forced by the pain to consult Dr Griffiths when she referred him to Dr Golski. I am satisfied also that there was no intervening incident to which the aggravation of his symptoms was attributable. This inference may readily be drawn from a report made by Dr Dunnett, a Commonwealth Medical Officer, and tendered as Exhibit C.

26. Dr Golski saw the plaintiff on 21 January 1977. In an updated report made following that consultation and certainly after September 1977, Dr Golski wrote of the plaintiff:-

"Mr Kussin was referred to me by Dr Nancy
Griffiths on 21/1/77. He was not a healthy
man, overweight with hypertension, who
suffered from severe osteoarthritis affecting
mainly his right knee. In addition to
generalized osteoarthritis affecting his
knee, he had gross osteoarthritis in his
right upper tibio fibular joint which,
according to his history, was due to repeated
sprains which he felt mainly around the ankle
but which also produced disability and
changes around the knee joint. Following an
injection of local anaesthetic and
hydrocortisone to the upper tibio fibular
joint, which produced a temporary but
considerable relief of his discomfort, he
underwent a fusion of upper tibio fibular
joint. This relieved his discomfort to a
considerable degree, but, of course, did
nothing to change the generalized
osteoarthritis affecting his knee. He was
undergoing repeated physiotherapy and was
seen by me at regular intervals. His
condition was complicated in September 1977
by a stroke which left him in a much worse
general physical condition with impairment of
movement. He also suffered an injury to his
right hip which is, at present, not causing
him much discomfort. I feel that Mr Kussin
is now permanently incapacitated from
performing any physical work and requires
help in looking after himself."

27. The evidence indicates that Dr Golski died early in 1978.

28. Writing on 15 March 1977, Dr Golski went to the heart of the plaintiff's orthopaedic problem. He said:-

"Mr Kussin('s) main problem is his knee while
the injury he sustained is (to) his ankle.
This apparent anomaly occurred due to the
fact when he twisted his ankle the impact of
the injury and twisting strain of it was
transmitted through the filula (sic) bone to
the upper tibio-fibular articulation which is
now grossly arthritic and will require
surgical fusion. The pain of this condition
is felt . . . mainly in the knee even though
the actual twisting injury occurred in the
ankle."

29. On 13 July 1977 Dr Golski wrote of the plaintiff that the pain in his knee was now much less due to the fusion of the upper tibio-fibular joint but that he had gross osteoarthritis in the knee. He did not think the plaintiff would be able to resume his work as a store supervisor and was inclined to support his application for early retirement.

30. On 19 August 1977, having seen the plaintiff on 2 August 1977, he said:-

"He appears to have made good recovery from
right upper tibial arthrosis and has lost
local pain related to this, however, he still
has very severe osteoarthritis of the right
knee and less so in the left knee and I do
not feel that he will be able to resume his
work as a store supervisor in the future.
I fully support his retirement prematurely
because of the disabling arthritis in his
knees."

31. On 20 October 1977 Dr A. Cairns, an orthopaedic surgeon, examined the plaintiff at the request of the Commonwealth Medical Officer. The plaintiff appears to have given quite an accurate history of the injury to his right leg particularly when regard is had to the fact that the consultation took place within six weeks or so of his having suffered the stroke. The history was not challenged as inaccurate and does not seem to indicate a memory deficit. Dr Cairns' general view of the plaintiff's orthopaedic disabilities accorded with that expressed by Dr Golski and I accept it as correct. It appears from a further report made by Dr Cairns on 15 September 1983 that in 1979 the plaintiff underwent further surgery which was apparently complicated by post-operative infection and a right common peroneal nerve palsy. This led in turn to further surgery in March 1980 and to a condition known as foot drop.

32. I am satisfied that in the relevant legal sense the accident of 15 October 1976 was the cause of the plaintiff's current orthopaedic difficulties. Of course, consideration has to be given the question of what, in any event, was likely to have been the plaintiff's fate in relation to the onset of disabling osteoarthritic symptoms even without injury.

33. I summarise my findings on the orthopaedic questions as follows:-

1. Before 15 October 1976, specifically in August
1976 and probably on at least one or two earlier
occasions the plaintiff had suffered an injury to
his right knee and ankle.
2. In August 1976 he was showing signs of
osteoarthritis in the right knee and ankle.
3. The plaintiff suffered a twisting injury to his
right ankle in the accident on 15 October 1976
which caused immediate pain. I am not satisfied
that he suffered any fractures, even undisplaced,
of the tibia and fibula.
4. Thereafter he was off work until 28 October 1976
when he resumed work. He worked until 17 January
1977 when continuing and increasing pain forced
him to stop.
5. He has not worked at all since, being disabled as
a result of the accident of 15 October 1976.
6. On many occasions after he stopped work on 17
January 1977 he attended at work due to his very
great concern to see that his work continued to be
done properly.
7. He underwent surgery at the hands of Dr Golski
with the results described by Dr Golski.
8. Subsequently he underwent surgery which was
unsuccessful and resulted in his suffering from
the condition known as foot drop which requires
him to walk with what was described as a Canadian
crutch.
9. The present condition of the plaintiff's right leg
is in the relevant legal sense a consequence of
the accident.
10. There was a strong probability that the plaintiff
would in any event have suffered from disabling
osteoarthritis and may well have been forced to
retire two to three years before he was 65 because
of that condition even had the accident not
occurred.
11. He was retired compulsorily because of his then
orthopaedic condition which was due to the
accident, the stroke having nothing to do with it.

34. The stroke which the plaintiff suffered in September 1977 is a complicating factor. Dr Griffiths expressed the opinion that the plaintiff might have been able to get back to the kind of work he was doing as a stores supervisor about six months after the stroke. Dr Danta, a neurologist called on behalf of the plaintiff, said that he could see no reason why the plaintiff should not have returned to work after 6 months. The plaintiff had told him that he had practically recovered some three or six months after the stroke though he did have residual difficulty with memory, headache and tinnitus in the ear which, in Dr Danta's opinion, would probably not have prevented the plaintiff from continuing to work.

35. Dr Long considered that he would have been probably unable to work following the stroke but this opinion seems to have been very much based upon his acceptance of two factors, one that the plaintiff had a substantial deficit of strength in his right arm following the stroke, the second that he suffered a memory deficit sufficient to prevent him from carrying out his work efficiently. It will be remembered that the plaintiff uses and has used for some time a Canadian crutch. This indicated to Dr Long that he must have had some residual strength in his right arm and Dr Danta, examining him in 1983 and 1984, found no objective signs of weakness in that arm. The evidence concerning memory related to the plaintiff's memory at the time of the hearing when he gave evidence that he remembers things from the past more readily than things that had occurred the day before. This phenomenon of memory is commonly known as an adjunct of the ageing process and hardly indicates as a matter of necessity what must have been the case some years before.

36. No evidence was called to indicate the attitude of the defendant to his physical condition and capacity for work after he had suffered the stroke and had recovered from it and, particularly, as to whether the mere fact that he had had a stroke would have led to his compulsory retirement.

37. In all the circumstances I think that the proper findings arising from the evidence to which I have just made reference are as follows:-

1. Following the stroke which took place on 10
September 1977 the plaintiff would, in any event,
have been incapacitated for work for six months,
i.e. until 10 March 1978.
2. That in any event the progression of the
osteoarthritis, already present when the accident
occurred, as I find on the evidence of Dr Cairns,
would have led to his retirement at about the end
of 1982. Of course, it is possible that he may
have retired earlier or later but these
possibilities may be dealt with as contingencies.

38. It is to be noted that Dr Cairns reported on 2 November 1977 following his examination of the plaintiff on 20 October 1977 to the Commonwealth Medical Officer. He concluded his report by saying that he believed the plaintiff to be no longer capable of the gainful employment in which he was previously employed and supported his retirement on medical grounds. That paragraph of his report seems to throw some doubt on the date of the plaintiff's compulsory retirement but on all the evidence I am satisfied that it must have taken place on 14 September 1977 particularly when this is confirmed by the plaintiff's evidence that he was visited by representatives of the defendant during his stay in hospital following the stroke so that the final details of his retirement could be attended to.

39. From the foregoing, it follows, in my opinion, that the defendant is not liable to compensate the plaintiff in damages for the loss of earning capacity which he sustained during the period of his recovery from the effects of the stroke, a period which I have, as indicated above, set at six months. Of course, damages for pain and suffering attributable to the condition of his leg are payable in respect of that period.

40. For loss of economic capacity I use the net figures provided in Exhibit H described as a net wage loss chart. I allow for the periods 15 October 1976 to 27 October 1976 inclusive and from 17 January 1977 to 31 December 1980 less the period of six months from 10 September 1977 to 9 March 1978. I fix the total at $21,800.00.

41. For pain and suffering and loss of enjoyment of life I allow the sum of $30,000.00. I fix this amount taking into account the unsuccessful operations to which I have made reference, the resulting foot drop and nerve damage and the probability that the plaintiff would have suffered from symptomatic osteoarthritis in any event but that it would not have been anywhere near so severe but for the injuries sustained in the accident of 15 October 1976. Surgery might improve the plaintiff's condition but I think it highly unlikely that he will undergo it. Such an attitude is reasonable in all the circumstances.

42. I accept the plaintiff's evidence as to the pastimes in which he is now unable to engage as a result of the accident.

43. Out-of-pocket expenses in relation to orthopaedic treatment amounted to $8,128.18.

44. For the Fox v. Wood ((1981) [1981] HCA 41; 148 CLR 438) component for the period to the end of 1980 I allow $2,360.00. I make no deduction for the period of six months following the stroke since compensation would have been payable in any event in respect of the earlier injury during that period because the disability occasioned by the accident was continuing.

45. I am not satisfied that any medication that the plaintiff continues to take is due to his condition resulting from the accident. He said he had stopped taking medication for his leg. I allow nothing on this account.

46. As to interest I accept that none is payable on medical expenses or on the amount of damages for loss of earning capacity equivalent to the compensation paid him for his periods off work to the end of December 1980. It is payable on the Fox v. Wood component and on this I allow interest of $2,500. In regard to general damages other than loss of earning capacity I allow interest at $17,000 and for interest on loss of earning capacity I allow $4,750.

47. The total is $86,538.18 which I round to $86,500. There will be judgment for the plaintiff for $86,500.00.