Roza Jambrovic v Australian Capital Territory Health Authority [1992] ACTSC 62; (1992) 108 FLR 8 (23 June 1992)

SUPREME COURT OF THE ACT

ROZA JAMBROVIC v. AUSTRALIAN CAPITAL TERRITORY HEALTH AUTHORITY
S.C. No. 1087 of 1985
Negligence
[1992] ACTSC 62; (1992) 108 FLR 8

COURT

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

CATCHWORDS

Negligence - Breach of duty - Personal injury - Pre-existing epileptic condition - Causation - Remoteness of damage - Some injury reasonably foreseeable - Type of harm foreseeable but not the extent.

Smith v Leech Brain and Co Ltd (1962) 2 QB 405

March v E and M H Stramare Pty Ltd and Anor [1991] HCA 12; (1991) 171 CLR 506

Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522

HEARING

CANBERRA
23:6:1992

Counsel for the Plaintiff: Mr G Parker

Instructing solicitors: Messrs Snedden Hall and

Gallop

Counsel for the Defendant: Mr R Crowe

Instructing solicitors: ACT Government
Solicitor

ORDER

The Court orders that:
1. There be judgment for the plaintiff in the sum of $61,233.92.

DECISION

On 12 December 1982 the plaintiff, then aged 32, was a kitchenmaid employed by the defendant at Royal Canberra Hospital.

2. She had started work at the cafeteria in the Hospital. Part of her duties included making tea using a large urn. It was about 38cm across and 75cm high. It was filled with hot water. Whilst it was being filled, a strainer full of tea leaves was "jiggled". At the conclusion of the operation, the hot water was turned off and an extendable arm from the hot water tank was returned to the wall.

3. After the plaintiff's injury, according to her evidence, a further hose of a flexible metal kind was added so that the nozzle would extend into the urn.

4. The water emerging from the wall tank was, it must be noted, at boiling temperature. It was clearly extremely dangerous.

5. The practice followed by the plaintiff was to wait until the spout of the hot water arm had stopped dripping then turn it through its axis back to the wall.

6. As it happened, the plaintiff, who was right-handed, was jiggling the strainer with her right hand. She turned the hot water valve off with her left hand. She was standing facing parallel to the water tank and to the right of the trolley as one faced the tank. She then returned the arm to the wall. It had one joint below the tank which allowed it to swing left or right. There was a thick rubber ring on the horizontal section of the arm. That could be touched without severe heat being experienced.

7. The plaintiff, with her left hand, moved the arm connected to the tank to the right. That caused it to pass over her right arm. As it did so, some scalding drops of water struck the plaintiff's right forearm. She was startled into jerking her right arm. As a result, the strainer she was holding also jerked. It splashed a greater volume of scalding water and tea onto the plaintiff's clothes near her stomach. That caused her severe pain.

8. The plaintiff says she then felt herself getting faint and grabbed at the urn to stop herself falling. The urn tipped over and she, and the urn, fell to the floor.

9. She next recalls waking in hospital. She had been severely burnt by the contents of the urn.

10. The plaintiff said that splashing from the water going into the urn had not been unknown previously. She had gone to the supervisor before to complain of it, to ask her to see the "big boss".

11. The supervisor said she would do what she could. Rubber gloves, or plastic backed aprons were suggested. Other staff had complained of minor splash burns and had asked for gloves and aprons.

12. It was suggested to the plaintiff that there was a yellow bucket in the tea room. The plaintiff agreed that when the tea strainer had been used it was removed from the urn and placed in a bucket to drain. The bucket was kept in the kitchen and brought in to the tea-making room for that purpose. The plaintiff denied that the yellow bucket was on the trolley or, indeed, on a small shelf next to and below the level of the bottom of the hot water tank at the time she was injured.

13. Following the accident the plaintiff had some epileptic episodes. It appears that she had, before the accident, some symptoms which appear to have been epileptic in origin.

14. It was suggested that the plaintiff had been recorded as giving an account of her accident which differed, in some respects, from that given in Court. On one occasion she was supposed to have said that she did not recall whether she turned the hot water off before she was burnt. On another occasion she is supposed to have said that she did not know what happened after hot water splashed onto and scalded her right arm.

15. The plaintiff did point out that her English was not perfect and she might, at times, be misunderstood, even with answers to interrogatories.

16. However, the only relevance of those previous inaccuracies, apart from any general effect on credit, was to found a suggestion that the plaintiff had simply blacked out whilst filling the urn and so caused the urn to become upset resulting in her injury.

17. Ms Anne Marie Kirkland gave evidence in support of the plaintiff's case. She was not a witness to the accident. She had been a supervisor at the Hospital at the time. She said there had been a lot of complaints about the outlet pipe of the water tank. It sometimes leaked or spurted scalding water after it was turned off. Ms Kirkland said that the extension lead was put on after December 1982 but could not precisely identify whether that was only the flexible hose or the moving arm as well. She did say that plastic coated or backed aprons were not provided and that some women used plastic bags tied around their waists. She was not asked to recall these events until recently.

18. For the defendant, two former employees gave evidence.

19. Ms Dorothy O'Brien was the plaintiff's supervisor. She heard a loud bang at the time of the accident. She rushed to the tea room from whence that noise had come. She saw the plaintiff sitting slumped against the wall. The tea urn was up-ended. She said she saw a yellow bucket on the shelf next to the hot water tank. The hot water outlet, with the flexible hose, was in the bucket. The hot water was on and she turned it off. The plaintiff was positioned inside the room to the left of the doorway. That is, on the opposite side of the room from the shelf. The trolley was parallel to the tank so that, it follows that it was between that shelf and the place where the plaintiff was located.

20. Ms O'Brien was unable to say when the old spout had been replaced. She did confirm that there had been complaints about it. She also confirmed that the bucket was used to receive the tea strainer after the tea was made. She could give no possible explanation as to why hot water would be run into the bucket. She said that the plaintiff appeared dazed and disoriented when she found her.

21. According to Ms O'Brien, there had been rubber gloves and plastic aprons provided but some of the employees did not like using them whilst making tea. She did not say that the plaintiff was one of those employees.

22. She deposed, also, that there was a shortage of such items. The administration did not like the employees to have "too many" of them. When the "quota" had been used, it seems, budgetary restraints would prevent replacement.

23. In cross-examination, Ms O'Brien conceded that she was unsure whether the flexible extension pipe was added before or after the plaintiff's accident. She did not instruct the plaintiff (or any other employee) to wear protective gloves or aprons when making tea with scalding water. In any event, they were not replaced after they wore out and may well have been unavailable. She did not believe such protective clothing was, in fact, available at the time of the plaintiff's accident.

24. She also asserted that following the accident but before her arrival in the tea room, the tea strainer had been cleaned and placed on top of the washing machine in the kitchen. She also said that she saw tea and tea leaves all over the floor and over the plaintiff.

25. I am satisfied that Ms O'Brien was doing her best but, like Ms Kirkland, she was struggling to recall something that had happened nearly ten years before.

26. However, if as her evidence suggests, the plaintiff had finished making the tea and had cleaned out the strainer and already placed it in the kitchen area, why was she filling the bucket whilst it was on the shelf? If she was doing so, and fainted spontaneously, upsetting the urn in her fall, why did she end up on the other side of the trolley? How could she pass through the trolley without at least dislodging it? Ms O'Brien said that the trolley was, after the accident, in the position depicted on the photographs tendered in evidence. That was its normal position during tea making. The most telling point, however, is the presence of tea leaves. The strainer was designed, it was said, to contain the tea-leaves. If it was in the urn when it fell, the strainer could well break open and deposit tea leaves over the floor and the plaintiff. It follows that, unless the plaintiff had not used the strainer at all, there should only have been minimal numbers of leaves in the urn after the strainer was withdrawn and cleaned. It follows that the strainer must either have been in the urn or, at least, in the plaintiff's hand when the urn tipped over.

27. Finally, the plaintiff was burnt over her front. The way the urn ended up and she ended up is consistent with the plaintiff falling back from the side of the urn or the end of it towards the door and taking the urn with her.

28. Accordingly, I am satisfied that the accident occurred much as the plaintiff recounted it. I think Ms O'Brien was confused about the bucket and water. She must have been confused about the strainer.

29. The dripping of the extension arm of the hot water tank need not have been the sole reason for the plaintiff to faint. That, no doubt, was her belief. However, I do not think the burns the plaintiff received from the extension arm and from the strainer would have been sufficiently severe to have caused a healthy employee to faint.

30. It seems to me that whilst the plaintiff was scalded as she suggested and then fainted, I think it probable that the fainting was due to an epileptic blackout. I do not think the fainting was entirely coincidental. It was, I think, triggered by the shock of the scalding from the tea strainer.

31. Dr Neil Adams, an expert in ergonomics and work place safety, calculated that a force of between 4kg and 12kg would suffice to dislodge the urn. Dr Olson, another expert, had reported that 40kg would be required. That conclusion was, however, based on the false premise that the urn needed to be lifted in order to be tilted. The slightest knowledge of the laws of physics suffices to reject this contention. Indeed, for a person of Dr Olson's qualifications to put such a contention forward borders on the deceptive. However, whether the deception was a result of the question asked rather than in the answer I cannot say. Dr Olson was not cross-examined.

32. The initial scaldings caused by the splash from the extension nozzle and then from the strainer were foreseeable.

33. Those scaldings were easily preventable:-

(i) The plaintiff could and should have been

warned and instructed not to pass the nozzle of the outlet over her arm. Had she stood at the other end of the trolley or used her right hand to move the outlet arm she would not have splashed her right arm.

(ii) The plaintiff could and should have been

warned or instructed not to move the arm of the hot water outlet whilst still jiggling the tea strainer.

34. In fact, I cannot see how the flexible extension added after the plaintiff's accident would have changed the situation save that it might have been the plaintiff's clothes or feet that were spattered rather than the scalding water falling over her forearm. It would not have avoided the risk of an involuntary start when scalded by falling drops of hot water whether from scalding water or from scalding tea from the urn.

35. A further precaution (it would not necessarily have been effective in every case) would be to require rubber gloves and plastic coated or backed aprons to be used. That option had been available but penny-pinching budgetary considerations led to its abandonment.

36. I accept that management did not contemplate burning as severe as that suffered by the plaintiff. Her blackout aggravated the harm. Nevertheless, the safety and comfort of employees was subordinated to what must have been a petty sum for an adequate supply of gloves and aprons.

37. It follows, inevitably, that the defendant was negligent. The only question is whether that negligence caused, relevantly, the over-turning of the urn and the severe burning suffered by the plaintiff.
Causation

38. Clearly, the negligence in question carried with it a foreseeable risk of burning and discomfort. It was not foreseeable that this plaintiff would react to being so burnt by suffering a blackout and pulling the urn over. That consequence was the result of her epilepsy.

39. Nevertheless, the type of harm she sustained was similar in kind, though not in extent, to that which was foreseen. But for the initial burning the blackout would probably not have occurred whilst the plaintiff was in such close proximity to the full urn.

40. It follows that the defendant was under a duty to prevent the initial burning and had readily available to it the means to do so.

41. Notwithstanding the role of foreseeability in the issue as to remoteness of damage, it remains the case that Smith v Leech Brain and Co Ltd (1962) 2 QB 405 is good law. A tort feasor must take his, her or its victim as he or she is found (see March v E and M H Stramare Pty Ltd and Anor [1991] HCA 12; (1991) 171 CLR 506, 534).

42. That rule is subject to the doctrine of novus actus interveniens (see Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522, 528).

43. Novus actus interveniens may be found whether or not the intervening act is one of a third party and whether or not that act is a culpable one (see March v E and M H Stramare Pty Ltd and Anor (supra), 536 per McHugh J.).

44. It seems to me that the injuries sustained by the plaintiff were a direct result of the breaches of duty by the defendant. The extent of injury was greater than anticipated by reason of her underlying epileptic condition. That seems to me to be a circumstance no different from that considered in Smith v Leech Brain and Co Ltd (supra). There is no reason why the consequences of the breach of duty should not include the scalding resulting from the upsetting of the urn.

45. In my opinion, therefore, the defendant is liable for the full extent of the damage caused by the scalding injuries sustained by the plaintiff on 12 December 1982.

46. I turn to the assessment of damages.
Assessment of Damages

47. The plaintiff is now 42 years of age, her date of birth having been 8 September 1949. After emigrating to Australia she commenced employment at the Royal Canberra Hospital as a kitchen maid in 1970. Her duties were entirely manual. She remained in that employment until the occurrence of this accident.

48. The scalding she suffered caused burns to the front right side of the plaintiff's body. The area of resultant scarring was demonstrated by photographs (exhibit A).

49. The plaintiff has no recollection of the actual scalding. She had already passed out. She awoke in hospital with what she described as "horrible pain". She could not sleep or walk at that time. It was only after scabs formed on the scalded area that she was allowed out of bed. She could wear only a loose fitting hospital gown.

50. It was many months before she had recovered enough physically for a return to work to be attempted.

51. On 2 May 1983 she went back to work. The burns still troubled her. She could wear clothing but pantyhose irritated her to the extent that she could not wear them.

52. The scarred area gradually improved over a period of one year.

53. The plaintiff, however, complains that there are still residual disabilities. The scarred area gets itchy from time to time. The plaintiff must wear clothes that are "really soft" if they contact the scarred area. She finds the area very sensitive to sunlight. She is worried by the appearance of the scarring. She will not now wear a bikini and avoids wearing shorts.

54. This has, she says, caused her to give up tennis and other sports.

55. Dr Brown, a plastic surgeon, assesses the plaintiff's scarring as permanent.

56. On 2 September 1991 Dr Brown noted that the plaintiff had continued at work for only two or three months at Royal Canberra Hospital. This was, as Dr Brown understood it, due to the onset of epilepsy. Epilepsy has limited the plaintiff's subsequent employment but the scarring does not give rise to any physical limitations on her capacity to engage in paid employment.

57. The defendant tendered a report from Dr Brian Andrea. That report largely confirmed Dr Brown's report, so far as it is relevant in these proceedings.

58. There was, also, a report from Dr Graeme A Robbie, a psychiatrist. Most of the report related to the plaintiff's epilepsy symptoms. The epilepsy was not, of course, caused by the burns the plaintiff suffered. The plaintiff does not actually claim that the burning episode has caused continuing employment problems. The report was relied on by the defendant because of the history of the burning taken by Dr Robbie. It does indicate, however, the distress it caused. The report is somewhat marred by a tendency on Dr Robbie's part to express rather vicious comments directed against the plaintiff (for example, "one can't rely on her memory or her veracity"). Such comments abound in the report. They are clearly designed merely to prejudice the reader against the plaintiff. They are not expert opinions but, rather, extraneous observations. I refer to these statements only to contrast them with my impression of the plaintiff.

59. I would accept that the plaintiff tends to express herself colourfully and, sometimes, in inappropriate terms. I put that down to her limited English. I found the essence of what she said not only to be convincing but also to fit in well with the surrounding circumstances. I, therefore, accept her account of the pain and suffering she has had.

60. Additionally, the scarring is unsightly, though not totally disfiguring. I accept nevertheless, that it troubles her greatly. She presents as a well-groomed and attractive looking woman who is obviously concerned with her appearance.

61. I think an award of $50,000.00 is called for for general damages. I attribute 50% of that sum to the past. Fifty percent of that sum I consider to be attributable to the first 12 months following the injury. That is, of course, a matter of impression, a result of having heard and seen the plaintiff's evidence and of having regard to the medical evidence. The total sum for interest is $4,500.00.

62. Out-of-pocket expenses were agreed at $2,312.40. The wage loss, including the Fox v Wood component, was agreed at $4,421.52. I have not been given any information indicating whether or not interest should be awarded on that figure.

63. The total, therefore, is to be calculated as follows.

General damages $50,000.00
Interest thereon 4,500.00
Out-of-pocket expenses 2,312.40
Wage loss (incl. Fox v Wood) 4,421.52
Total $61,233.92

The total is $61,233.92. That seems appropriate globally. I order judgment accordingly.

64. I will hear the parties as to costs.