Stephens v Abigroup Contractors Pty Limited & Anor [2005] NSWSC 133

New South Wales Supreme Court

CITATION : Stephens v Abigroup Contractors Pty Limited & Anor [2005] NSWSC 133

HEARING DATE(S) : 28/02/2005, 01/03/2005, 02/03/2005

JUDGMENT DATE : 3 March 2005

JUDGMENT OF : Hoeben J at 1

DECISION : Judgment for the plaintiff in the sum of $156,171.20.

CATCHWORDS : Causation - whether injury to wrist caused by explosion. Remoteness of damage - recoverability of legal costs incurred as a result of representation before Coroner.

LEGISLATION CITED : Crimes Act 1900

Habib v Nominal Defendant (1995) 22 MVR 454 CASES CITED : Kavanagh v Akhter (1998) 45 NSWLR 588 Nader v Urban Transit Authority (1985) 2 NSWLR 505

Robert Leslie Stephens - Plaintiff PARTIES : Abigroup Contractors Pty Limited - First Defendant Josef & Sons Contracting Pty Limited (in liquidtion) - Second Defendant

FILE NUMBER(S) : SC 020006/00

Mr M Perry - Plaintiff COUNSEL : Mr R Stanton - 1st and 2nd Defendants

Taylor & Scott - Plaintiff SOLICITORS : Ebsworth & Ebsworth - First Defendant Hunt & Hunt - Second Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOEBEN J

Thursday, 3 March, 2005

20006/00 – Robert Leslie STEPHENS v Abigroup Contractors Pty Limited & Anor

JUDGMENT 1 HIS HONOUR: The plaintiff's claim arises from an incident, which occurred on 4 December, 1995. The matter has proceeded as an assessment only. Liability has been admitted by both defendants and as between themselves, they have agreed apportionment.

Factual background 2 The plaintiff was born on 22 April, 1966. He is now thirty-eight years of age. He completed his schooling at Grantham High School to the HSC level, but did not obtain his HSC. He completed an apprenticeship as a spray painter over four years and thereafter worked in that occupation for another two years. 3 The plaintiff had always wanted to be a policeman, but had not been able to engage in that occupation because of his lack of the HSC. He applied to join the Police Service on 29 July 1990 and was accepted on the basis of having completed his spray painting apprenticeship. He graduated from the Goulburn Police Academy on 25 January 1991. He commenced as a probationary constable in the general duties section of the Police Service and was stationed at Kogarah. 4 His employment with the Police Service was not without its difficulties. In 1993 he was involved in a pub brawl with two detectives as a result of which he was charged and convicted of assault. No conviction was recorded under the provisions of s556A of the Crimes Act 1900. As a result of that incident, he significantly reduced his alcohol consumption and ceased socialising with other police after hours. He was also convicted of an internal departmental offence in that he failed to properly report the receipt of a wallet which had been handed in. These were the only blemishes on his record as a policeman up to the events of 4 December 1995. 5 It was the plaintiff's evidence, which I accept, that as of 4 December 1995 it was his intention to continue in the Police Service and that he had ambitions to rise as high as he could. He was confident of reaching the rank of sergeant and hoped that in due course he might reach commissioned rank as an inspector. 6 On 4 December 1995 the plaintiff and another police officer attended a call to a possible gas leak near Kogarah Railway Station. Upon arrival, the plaintiff immediately smelled gas. Inquiries revealed that the gas was leaking from a mains pipe, probably disrupted by an excavation near the railway station. Attempts were being made by the workmen to control the leak. 7 The plaintiff appreciated that the situation was potentially very dangerous. He moved a short distance away from what he believed to be the source of the gas leak, and used his radio to contact his station. Whilst he was in the process of doing this, an explosion occurred. The plaintiff estimated that approximately two minutes had elapsed between him arriving in the area and the explosion. 8 The explosion came from the plaintiff's right rear. He recollected what he described as "a wall of blue flame", followed by intense heat. His next recollection was looking up from the gutter approximately a metre from where he had been standing. He was lying on his back. 9 He remained in that position for about five to ten seconds, got to his feet and broadcast over the police radio what had happened. He remembered looking at his hands which "looked like overripe peaches where the skin had burst". He did not feel any pain at that time and felt somewhat remote from what was happening. He tried to organise the injured. Specifically he noted that the road was blocked preventing a fire truck getting though, and he took steps to unblock the road. 10 The plaintiff had a clear recollection of a man sitting on the footpath. He initially thought he was a dark skinned person, but then noticed that this was not the natural colour of his skin and that he had been burned. His hair had been burned away, as had the front of his shirt. He subsequently learned that this person had died from his injuries. 11 After a short time, he started to feel pain in his face and arms. He remembered that a hotel across the road had a shower, and he went there to obtain cold water. He was eventually taken by ambulance to the St George Hospital. The extent of the plaintiff's burns was clearly depicted in a series of photographs taken over ensuing weeks, and which comprised exhibits B and C. 12 The plaintiff was discharged from St George Hospital on 11 December 1995, but continued to attend the out patients' department of that hospital for hand physiotherapy for another six weeks. The plaintiff suffered what was described as superficial burns to his face and both arms and hands. Dressings and cream were applied to the burns. 13 While in hospital, the plaintiff was treated by Dr Giles, a plastic surgeon. Following his discharge from hospital, he continued to see Dr Giles. His last visit was on 22 February 1996. As of that date, Dr Giles noted that his burns had healed, although the skin was fragile and he had developed a couple of small ulcers. 14 One of the issues in the trial was whether or not the plaintiff had suffered an injury to his left wrist and thumb in the fall which followed the explosion. I will deal with that question in more detail in due course. It was, however, common ground that while in hospital and while attending the out patients' clinic, the plaintiff received physiotherapy in relation to both his hands. 15 The plaintiff discharged himself as quickly as he could from hospital since his first child was due to be born at the time. That child (Ty) was in fact born on 27 December 1995. After his discharge from hospital, the plaintiff was not able to do a great deal for himself. It was agreed between the parties that assistance was provided for the plaintiff by his wife in the weeks following his discharge from hospital and that the value of that assistance was $1,200. 16 The plaintiff's recollection of events in the months following his discharge from hospital was somewhat vague since he was taking significant quantities of medication. It was only when that medication ceased that he became more conscious of particular pains which he was experiencing. His evidence was that he initially noticed pain in his left thumb and left wrist. In relation to the left thumb, the physiotherapist had provided him with a splint. That splint was subsequently put into evidence as exhibit J. Although there was a dispute as to whether or not a splint had been provided for the plaintiff's left thumb, and as to whether exhibit J was in fact that splint, I accept that to be so. 17 It was the plaintiff's evidence that he had continued to experience on an intermittent basis pain in his left wrist and left thumb from the date of the explosion until the date of trial. Symptoms had become much more noticeable and intrusive, particularly in relation to the left wrist in 2003-2004. Whether or not symptoms had commenced in the left wrist and left thumb from the time of the accident and had continued until the time of trial was a matter of significant controversy between the parties. In that regard it was common ground that in April 1981 when aged fifteen, the plaintiff had suffered a fracture to his distal radius in the left wrist while playing rugby. His wrist had been in plaster for six weeks. The plaintiff said he had not experienced any subsequent problems in relation to his left wrist until after the explosion. 18 In early January 1996 the plaintiff's wife (who was a qualified nurse) noticed that he was developing psychiatric symptoms and as a result of her urging he sought psychiatric assistance. He commenced seeing Dr Chee, a psychiatrist, in February 1996 and continued to see him on thirteen further occasions until 4 March 1997. Dr Chee diagnosed the plaintiff as suffering from an acute post-traumatic stress disorder of moderate severity. 19 The plaintiff returned to police work on restricted duties at reduced hours on 11 April 1996. He returned to full normal duties on 25 April 1996. The plaintiff had difficulty in continuing to work from the Kogarah Police Station, which was approximately one hundred metres away from the site of the explosion. The proximity to the explosion site upset him and made him extremely anxious. Included in the medical reports, tendered on behalf of the defendant, was a report from a Dr Donsworth, psychiatrist, of 19 June 1996. That report made it clear that the plaintiff was having difficulty at that time in performing his normal police duties. Dr Findlay, whose notes were in evidence, was the plaintiff's GP. Those notes supported problems with insomnia in July 1996 and problems with anxiety in October 1996. On 4 March 1997, Dr Chee noted that "He still had a predisposition to anxiety and significant insomnia when re-exposed to reminders of his previous trauma. There was evidence of psychomotor agitation when talking about the inquest. He had successfully ceased Prothiaden at the time." The plaintiff was transferred to Bondi on 22 September 1996. 20 On 28 April 1997 the inquest into the explosion commenced before the NSW Coroner, Mr Hand. For the first three days of the coronial inquest the plaintiff was separately represented. Thereafter, counsel for the Police Service represented all officers involved. Since the legal costs associated with the coronial inquest formed part of the plaintiff's claim for damages, I will deal with this as a separate issue. 21 In 1998 the plaintiff applied for a position in the Forensic Services Group of the Police Service. That application was successful and he was appointed to the Forensic Services Group on 22 August 1999. He continues to work as part of that group. His particular speciality is that of Crime Scene Investigation (CSI). 22 The plaintiff's duties since August 1999 involve technical assistance to operational investigators in relation to investigating scenes of crimes. Where the crime is murder, the plaintiff might form part of a group of two or three CSI specialists. In lesser crimes such as sexual assault, the plaintiff usually carries out the crime scene investigation on his own. 23 As of the date of trial, he has almost completed a university diploma in forensic crime scene investigation. He anticipated that he would successfully complete that diploma course by the end of 2005. He was performing well in the course and gaining distinctions and credits. At the date of trial the plaintiff was classified as a Detective Senior Constable. 24 The plaintiff was able to carry out his work without difficulty provided he was not required to lift heavy weights with his left hand. As the plaintiff put it, he was a police officer first and a forensics expert second so that he was required, if necessary, to act as a qualified policeman. If this meant having to cock his Glock service pistol he would at the present time have difficulties in doing so because of the problems he was experiencing with his left wrist and hand. 25 In relation to progression through the Police Service, as of the date of trial the plaintiff had obtained a Certificate of Authority and had completed an internal exam for sergeant, the results of which he did not know. He was confident that he had passed that examination. With his experience in the CSI field, and with those two qualifications, ie the Certificate of Authority and a successful exam result, he would be able to apply for a sergeant's position in the CSI area, should a vacancy become available. He pointed out that there was a lot of competition for such a position and he would assess his chances as being fifty-fifty.