Jeffrey Harris v UGL Limited
[2012] NSWDC 41
•04 April 2012
District Court
New South Wales
Medium Neutral Citation: Jeffrey Harris v UGL Limited [2012] NSWDC 41 Hearing dates: 1 - 3 March 2012 Decision date: 04 April 2012 Before: Judge M Sidis Decision: 1.Verdict for the defendant.
2.The plaintiff is to pay the defendant's costs of the proceedings.
3.The exhibits are returned.
4.My reasons are published.
Catchwords: INDUSTRIAL ACCIDENT: Difficulty of identifying work undertaken at time of alleged injury - difficulty of diagnosis of injury - plaintiff's failure to use tools that would have avoided injury - whether failure to provide pit access to work beneath railway carriage causative of plaintiffs injury - contributory negligence - extent to which plaintiff continued to be disabled - extent of income loss Legislation Cited: Civil Liability Act 2002 Category: Principal judgment Parties: Jeffrey Harris (Plaintiff)
UGL Limited (Defendant)Representation: Mr A Campbell (For the Plainitff)
Mr R Taperell (For the Defendant)
Taylor & Scott Lawyers (For the Plaintiff)
Beverley Cantle (For the Defendant)
File Number(s): 2009/67609
Judgment
The plaintiff qualified as an electrician in 1972 after training through an apprenticeship with BHP. Between 1977 and 2005 he was employed in work in large construction sites, power stations and in the mining industry.
In August 2005 he registered with Manpower Pty Limited, a labour hire company and was placed with the defendant, a company whose business was the construction and servicing of trains. The trains involved were rail cars, coal locomotives and suburban two carriage trains, known as diesel motorised units or DMU's.
The work to be undertaken was set at weekly toolbox meetings and daily start up meetings. The plaintiff worked in a team of four that included himself, brothers Neil and Kevin Morris and Mr Millbourn, who was the leading hand and their immediate supervisor. Mr Trpenovski was responsible for the overall supervision and management of the work on the DMU contract.
On 19 May 2008 the team was working on the modifications to the electrical systems of DMU's that were used on the railway line between Newcastle and Maitland.
The plaintiff said he arrived at 6 am on that date and, knowing in advance the work that he was required to do, he placed a layer of cardboard under a railway carriage and slid underneath. He said he was required to remove the cover of a box about 2.5 by 1.5 feet in dimension to access the wires inside and rename them. He said the carriage was about 1.5 feet above the ground and the box on which he was required to work was about 4 inches above his nose.
He was required to remove 12-14 nuts, bolts and spring washers from around the perimeter of the box. He held a ring spanner in his left hand and a socket spanner in his right hand to loosen the bolts. Having removed eight bolts, he encountered a bolt that was covered in diesel oil, dust and grime. He tried hard to move it without success. He therefore braced his right foot against the underside of the carriage to exert greater force and in so doing cracked it.
As he did so he felt an almighty sharp strong pain in the right side of his groin. He dropped his leg and the pain subsided. He finished the job while lying on his back and rolled out from under the carriage. He then went to the control box behind the driver's seat to work on wires there. He sat on a stool that was 8 inches above ground to do this work for two hours. As he stood up, the pain returned but subsided once he was standing.
The plaintiff said he made no complaint of injury at the time but the remaining members of his team heard his expletives.
The plaintiff claimed that his injury was the result of neglect on the part of the defendant. The defendant denied any negligence and in the alternative claimed contributory negligence on the part of the plaintiff.
Before the questions of negligence and contribution could be addressed it was necessary to analyse the evidence concerning the precise nature of the work that plaintiff was doing and whether he suffered injury at the time and in the manner claimed.
What was the plaintiff doing at the time of his injury?
In his pleadings the plaintiff claimed that the box on which he was working at the time of his injury was a coupling box. In an interview dated 1 July 2008 he said it was a transfer box. In particulars supplied in response to the defendant's request, his solicitors said it was a junction box. At the hearing he said he did not know the name of the box he worked on but referred to it as a connection box of which there were many on the train. He said the box was situated between the wheels of the train.
The plaintiff highlighted on a plan of the underframe of a rail car (Exhibit 4) the position of the box he said he worked on at the time of his injury. He said he was loosening bolts on this box to get access to wires so that he could re-label and reposition them.
Mr Neil Morris, in a statement dated 1 July 2008, Exhibit B.17, said the job involved changing plugs and that he did one set while the plaintiff did the other. He said it was a job that was performed in cramped conditions where it was necessary to climb under the carriage and lie sideways to change plugs. These were plugs that were on the end of a conduit that were not excessively heavy but they could be hard to get on and off. The work was not done over a pit. He agreed, however, that he did not know what the plaintiff was doing at the time he said he was injured.
Mr Morris pointed to a coupling box on the plan Exhibit 4. It was in a different position to the box the plaintiff said he was working on and which the plaintiff highlighted on Exhibit 4. Mr Morris said the coupling box he identified had four bolts for each plug base. He said he had no difficulty undoing them.
Mr Kevin Morris also said he did not know what work the plaintiff was doing at the time of his claimed injury.
Mr Darren Millbourn was the supervisor immediately responsible for the plaintiff's work. In a statement dated 21 November 2011 he said he did not know exactly what it was the plaintiff was doing at the time of injury because there were various reports that referred to junction boxes, transfer boxes or coupling boxes.
Mr Millbourn said that, if the plaintiff was working on a coupling box, the lid had eight 6 mm bolts that were removed to provide access to the wires inside. He said the three large plugs that went into the coupling box could be turned and removed by hand but if they proved to be difficult, multigrips could be used.
The 6 mm bolts could be removed with a spanner or ratchet. They were small and usually came off easily. If they were tight a ratchet or an air driven palm rattler could be used. He said the plaintiff was experienced and would know about the tools that were available to remove tight bolts. He said it was not necessary to use both a ratchet and a spanner to work on a coupling box.
Mr Millbourn said there were definitely not 12-16 bolts on the cover of coupling boxes. At most there were eight.
Mr Millbourn was asked about a pull through box. He said this was not what the plaintiff highlighted on Exhibit 4. He agreed that he was unable to state that the plaintiff was not working on a pull through box but said that the Field Modification Instruction 637 (Exhibit C-1) for this task mandated that a pit be used for work on a pull through box. He said the work described in FMI 637 was not performed if a pit was not available.
Mr Millbourn accepted that there was no FMI for the box that the plaintiff highlighted on Exhibit 4.
Mr Trpenovski said the box that the plaintiff marked was not worked on in the performance of the contract for modifications to the DMU's. He agreed that a pit was required for work on a pull through box and that it was unsafe to work on a pull through box if a pit was not available.
The result was that the box highlighted by the plaintiff on Exhibit 4 was not named and, according to Mr Trpenovski, the senior supervisor, it was not worked on. This left for speculation the question of whether the plaintiff was working on a coupling box, a junction box, a transfer box or a pull through box. I noted that the plaintiff himself did not claim to have been working on a pull through box. The reference to this box was made by his counsel in cross examination of the defendant's witnesses.
I took into account the evidence of Mr Neil Morris in concluding that the plaintiff was most probably working on a coupling box and that it was unnecessary for the plaintiff to remove the bolts using the method he described. I therefore rejected his evidence that he found it necessary to use his leg to apply extra force because both hands were fully occupied in removing the bolt.
When did the injury occur?
The plaintiff maintained that he suffered pain while working under the carriage. He thought his colleagues were aware from his expletives that something happened. He colleagues said nothing in their evidence about these expletives.
Mr Neil Morris, in a statement dated 1 July 2008, said that the plaintiff complained about pain in his groin early in the week before he was laid off. The plaintiff told him that he was under the train to change numbers on the plugs and his groin was sore. He did not say what caused it. In a subsequent statement dated 21 November 2011 (Exhibit 2.32) he said the plaintiff told him he hurt his groin climbing off a train. Aside from this Mr Morris said he did not know exactly what the plaintiff was doing at the time of his injury.
Mr Kevin Morris in his statement of 1 July 2008 (Exhibit 2.5) remembered that the plaintiff made a passing comment about pain of which he took little notice. He was not certain if the complaint was about pain in the groin. He remembered that the complaint was made in the week before the plaintiff was laid off. In his statement dated 21 November 2011 Mr Morris said the plaintiff complained of some kind of injury that he suffered at work a couple of days before he was laid off. He said he was pretty sure that he mentioned a hernia strain but he did not remember exactly. He said he strained or did something getting on or off a train. He was not 100% certain of this because of the four year time lapse between statements.
Mr Millbourn said the plaintiff at no time mentioned a hernia, strain or injury or complained that the work was too heavy or difficult until after he was given notice of termination. He said the plaintiff should have reported any injury to him as supervisor on the day of his injury but he learned of his injury only after the plaintiff was given notice of termination.
Mr Trpenovski told the plaintiff he had one week's notice because the job was finishing. When told that there was no work for him elsewhere in the defendant's operations, the plaintiff said: I think I've got a hernia and I'm seeing a doctor. He said the heavy lifting work on the bogies caused his hernia. The plaintiff did not tell Mr Trpenovski that he suffered injury while working under the carriages.
The version of events provided by Mr Millbourn and Mr Trpenovski suggested that the plaintiff's complaint of injury was his response to the advice that he no longer had work at the defendant's premises.
However, Mr Neil Morris and Mr Kevin Morris confirmed that the plaintiff complained of discomfort before Mr Trpenovski gave him notice.
I was satisfied therefore that the complaint of injury was not generated as a response to the loss of work.
The disparate nature of the causes of injury that the defendant's witnesses reported that they were told of by the plaintiff confirmed my conclusion that it was not possible to conclude that he was injured while attempting to remove a stubborn bolt.
What was the nature of the injury?
The plaintiff told the court he suffered an almighty pain while working under the carriage on 19 May 2008. He said in cross examination that he felt a nagging, sharp pain that went away.
Asked about his failure to report such a significant injury on 19 May 2008, the plaintiff said he was in his mid-50's and it was not his habit to complain about everything. He also said that this was because the pain was just niggling and he thought it would go away.
The plaintiff was taken to materials that recorded that in contrast to an almighty pain or a nagging sharp pain, he described his pain as a twinge.
In a statement dated 1 July 2008 (Exhibit B.14) the plaintiff said that while working under the train:
As I undid the coupling I felt a twinge on the right side of my groin/stomach but I continued to work. After about an hour I had to go to another task .... I went to another task which involved wiring a cabinet inside the carriage. I was sitting on a low stool about 15 cm high working on a cabinet. When I stood to get up from the stool to go to morning tea at 9 am I felt a short stabbing pain again in my groin. Neil Morris was working on the opposite cabinet to me and I said 'ouch' as I stood but I did not say anything to Neil other than 'I'm getting old".
The workers injury claim form completed on 28 May 2008 (Exhibit B.278) described a twinge in groin that was just a niggling that I thought would go away.
Dr McDonald reported (Exhibit B.31) on 28 May 2008 that the plaintiff told him that from about Tuesday 20 May 2008, he noticed twinges of discomfort in the right groin ... that has (sic) got progressively worse to very sharp disabling pain over the weekend and the last couple of days.
Associate Professor Myers recorded (Exhibit 1.45) on 13 June 2008 that the plaintiff noted slight discomfort in the right groin following which he got up onto a train which required some climbing and noticed a small twinge in the right groin.
The determination of the nature of the plaintiff's injury was further complicated by the disagreements between the medical experts on the appropriate diagnosis for the plaintiff's condition.
The plaintiff initially consulted his general practitioner, Dr Soh. No report from Dr Soh was in evidence. He commenced treatment with Dr McDonald in May 2008. Dr McDonald diagnosed right inguinal neuralgia that was the result of three factors:
1prior inguinal hernia surgery;
2the plaintiff's age of more than 55 years;
3the nature of his employment requiring awkward postures, including crawling and squatting.
Dr Collins and Dr Khan agreed with the diagnosis of right inguinal neuralgia. Dr Collins said it was the result of strain in the region of the mid-inguinal canal.
Dr Tame diagnosed an irritation of the ilio-inguinal nerve that could be secondary to a small hernia.
Dr Garvey said there was no evidence of ilio-inguinal neuralgia. He diagnosed right sided groin disruption that had not been satisfactorily imaged. He recommended surgery for groin disruption, a condition that he said was common to those who worked in confined spaces.
Dr Rapaport said that while working in a tight awkward confined space the plaintiff suffered a sprain or muscular strain injury to the right groin that the circumstances suggested was mild. He said there was no objective diagnosis that could be substantiated and that many of the opinions expressed were speculative. He agreed that the factors listed by Dr McDonald contributed to the injury.
Professor Myers maintained his opinion that there was no specific diagnosis or abnormality to explain the plaintiff's symptoms. He said the plaintiff did not have a classical entrapment syndrome consistent with ilio-inguinal nerve entrapment following a hernia repair. He rejected the diagnosis of neuralgia and said the plaintiff might have suffered some strain of the muscles in the right groin that would have settled soon after the injury.
Dr Edwards reviewed the opinions provided by the medical experts and said that the description of the plaintiff's pain did not suggest nerve involvement. He agreed with the diagnosis provided by Professor Myers.
Dr Mellick reviewed those opinions and disagreed with Dr Edwards. He agreed with the reasoning of Dr Khan who concluded that the plaintiff suffered from ilio-inguinal neuralgia.
I agreed with Dr Rapaport that in the light of these conflicting opinions it was not possible to determine positively the nature of the plaintiff's injury. I decided that, in any event, it was not necessary to arrive at a positive finding on this issue. In dealing with the assessment of the plaintiff's claim I have referred to evidence from which I concluded that the plaintiff was substantially recovered from whatever injury he might have suffered.
I noted that the medical experts were in substantial agreement that injury, whether to the ilio-inguinal nerve, groin disruption or muscle strain, commonly occurred in those engaged in work in confined spaces where awkward, squatting or crawling postures were required.
Although I rejected the plaintiff's claim that he suffered injury in the manner described by Mr Burn, I dealt with the remaining issues in the event that this matter proceeded further.
Was there negligence?
The statement of claim alleged negligence in:
1the provision of an unsafe system of work;
2the failure to provide a pit from which the plaintiff was able to work;
3the inadequate cleaning of carriages;
4the provision of inadequate plant, gear and equipment;
5inadequate supervision and training.
The plaintiff did not claim that the system of work was such that his injury was the result of the nature and conditions of his working environment. His claim concentrated on items 2 - 5 above.
Mr Burn, consulting engineer, (Exhibit B.121) identified a risk of injury arising because of the requirement for the plaintiff to apply force in an awkward and unbalanced position while lying on his back on the ground beneath the carriage. He suggested the following preventative measures:
1clean the underside of the carriages;
2redesign the mounting of the box the plaintiff was working on to negate the requirement to use two spanners;
3review the mounting method for the junction box to make access easier.
In a subsequent report (Exhibit B.139) Mr Burn said that the provision of a pit would have allowed the plaintiff to stand to perform his work without the need to adopt the activity that lead to his injury.
In response, the defendant produced the FMI's that provided detailed instructions for the execution of various aspects of the work on the DMU's.
The FMI's identified when a pit was required for a particular task. The defendant's witnesses said that, if required by an FMI, a pit was always made available and that the work was scheduled in a way that ensured availability. Of the boxes referred to in evidence only work on the pull through box required pit access as provided for in FMI 637.
There was no FMI for the work on the box highlighted by the plaintiff and, according to the defendant, work on that box did not require pit access. Both Mr Neil Morris and Mr Kevin Morris referred to jobs where they were required to work in uncomfortable positions when a pit was not available and they had to cop it.
Mr Millbourn said that if, as stated by the plaintiff, he was working on a coupling box, the work could be done from the side of the train with the electrician adopting a position on his or her side or back. This was consistent with the statement of Mr Neil Morris in which he said the work was done in cramped conditions, lying sideways.
It was not the defendant's practice to clean the underside of the carriages of the DMU's. They were not new and therefore it was not unusual for dirt and oil to have accumulated on the fittings on the underside of the carriages. The plaintiff accepted that a wire brush was available for use if bolts proved to be stubborn. He said he thought the carriage was cleaned before he started and all of the other bolts on the box came off easily.
Mr Neil Morris confirmed that brushes were available. He said some bolts were stubborn but there were plenty of tools available if they were difficult to remove.
The plaintiff also had access to a butterfly spanner and multigrips. His response was that they were not tools that were standard to an electrician's tool box. He agreed that Mr Millbourn told him that he could use tools in his tool box if they were needed.
Finally, Mr Millbourn pointed out that, if the plaintiff was working on a coupling box, the bolts were fitted with weld nuts that could be removed using only one tool. It was not therefore necessary for the plaintiff to hold a tool in each hand.
In respect of supervision and training, the plaintiff made it clear that he considered that he was a senior and experienced electrician who required little instruction or supervision. He dismissed the daily start up meetings as unnecessary because he already knew what he was to do. He said he did not read the FMI's in detail because he knew what had to be done.
Mr Neil Morris confirmed that Mr Millbourn, the plaintiff's immediate supervisor, was constantly in the area where the team was working and was available if assistance was required.
The plaintiff agreed that there were weekly tool box meetings, conducted by Mr Trpenovski, at which the scheduling of the work was discussed and safety issues were raised.
He agreed that he was aware of the U-take 5 system for reporting safety concerns although he denied that he was issued with the booklet, Exhibit D, through which concerns could be reported in writing.
The work involved in the modification of the DMU's necessarily required the performance of tasks in cramped and difficult positions.
The FMI's of themselves did not establish that the risk of injury when working on a coupling box was such that the risk should not be guarded against by the provision of pit access. The FMI's did establish that the defendant's engineers addressed the question of pit access in the development of instructions for the work to be performed.
There was no evidence before the court of prior injury resulting from work on the coupling boxes in the manner described by Mr Neil Morris and Mr Millbourn.
I noted that Mr Burns did not identify the requirement for pit access in his initial report. This suggested that although the work might be more easily performed if pit access was provided he did not necessarily consider it to be unsafe to perform the work without that access.
The plaintiff's evidence did not address the expense or inconvenience that might be involved in cleaning the undercarriages of the DMU's before he was required to work on them.
Although the carriages were not cleaned, the defendant provided the tools required to clean and shift stubborn bolts. They were readily available to the plaintiff who elected not to use them.
I considered the defendant's response to the occasional need to clean and shift a stubborn bolt to be reasonable and that the use of the tools provided would have avoided the plaintiff's injury. There was therefore no basis for concluding that the absence of pit access was causative of the plaintiff's injury.
I considered that the defendant provided adequate supervision and training for the plaintiff if he decided to take advantage of it.
I therefore rejected the claim that there was negligence on the part of the defendant that was causative of any injury suffered by the plaintiff.
Was there contributory negligence?
There was clear evidence of contributory negligence on the part of the plaintiff in failing to access the tools made available by the defendant. Use of those tools would have avoided the need to use force or strain to undo the bolt in question.
I assessed his contributory negligence at 30%.
Damages
Non economic loss
This aspect of the plaintiff's claim was also complicated. Aside from the stark disagreements between the experts on diagnosis and cause, the defendant challenged the plaintiff's evidence concerning his ongoing complaints of pain and discomfort.
The plaintiff complained of consistent pain in his right groin that was worse after exertion. He said the level of pain was reduced by about 60% as a result of the treatment provided by Dr Tame and because he had learned to live with his pain. He said he took painkilling medication daily.
He did not propose to have further painkilling injections administered by Dr Tame. He reported that the relief he gained from the one injection provided was of disappointing benefit. He did not propose to have the surgery recommended by Dr Garvey because there was no guarantee that it would relieve his symptoms.
The plaintiff said that his condition affected his capacity to perform many day to day activities. He also gave evidence of stress and psychological reaction to his injury and the litigation processes that followed. The plaintiff's psychological condition was not dealt with in any medical opinion and I have therefore not taken it into account in assessing his claim.
The plaintiff denied that he undertook any work on the renovation of his parents' house. He denied that he painted a ceiling in the house and as a result suffered from a frozen shoulder for which he obtained treatment at the Maitland Hospital. The clinical notes (exhibit 8) of his attendance at the Hospital on 10 December 2009 recorded:
... shoulder pain x4/52 ... associated with painting ceiling.
He denied that he had surgery on his knees and claimed not to remember an injury to his left knee. After production of the records concerning this injury, the plaintiff recalled that he injured his knee when employed at the Tomago Aluminium factory in 2003 and that an arthroscopy to repair a tear of the medial meniscus was undertaken on the left knee in August 2003.
He said he did not report this injury to any of the doctors who examined him for the purpose of his claim because he did not consider that it was relevant.
The defendant relied on evidence recorded on DVD in April 2011 and October 2011 of the plaintiff undertaking various activities. The defendant submitted that this evidence established that the plaintiff was no longer disabled by pain and that it was likely that the diagnoses of Professor Myers and Dr Rapaport were correct.
Dr Rapaport viewed the DVD recordings. He said they reinforced his opinion that the plaintiff had recovered and was fit for normal activities. He said he was fit to return to work in an occupation suited to his age.
I accepted that the DVD recordings portrayed the plaintiff undertaking a variety of activities during which he was apparently unaffected by pain or discomfort. Mostly the activities he undertook were unremarkable. Some suggested that the plaintiff was not so seriously affected by pain and discomfort that he could not return to employment as an electrician that was appropriate for his age. I noted, in particular, his carriage of a carton of beer on his right shoulder for some distance through a shopping centre when a shopping trolley was available.
Dr Collins reported that the plaintiff told him that pain in his groin was troublesome after walking 150 yards. The distance over which the plaintiff walked with the carton of beer well exceeded 150 yards.
Even if I were to take into account the plaintiff's evidence that he took pain killing medication daily and that the recordings captured only short episodes in the plaintiff's daily life, this activity was starkly inconsistent with the claim that the plaintiff continued to be debilitated by pain as a result of whatever injury he suffered in May 2008.
Having regard to this and the other unsatisfactory aspects of the plaintiff's evidence that I have already identified, I was not satisfied that the injury suffered by the plaintiff or that any ongoing consequences of that injury met the threshold requirements of s 16 of the Civil Liability Act 2002 in order to qualify him for an award for non economic loss.
Loss of income earning capacity
The plaintiff said that his pain and discomfort stabilised to their current levels about two years ago. He claimed that he was totally incapacitated for work from the May 2008 until the date of the hearing. He accepted that he retained some income earning capacity that has yet to be realised because he has not found a suitable position.
The plaintiff worked at the Bunnings hardware store for a short period on a trial basis. He said he enjoyed this work and looked forward to obtaining long term employment with the store but he was terminated on being told that he was not suitable for retail work.
The medical evidence and my own assessment of the plaintiff's most likely future circumstances but for his injury suggested that he would not continue to undertake electrical work associated with heavy industry until retirement age.
I considered that it was most likely that the plaintiff would find work in less physically demanding areas of his trade. I considered that the evidence indicated that this work remained available to him as did other areas of employment for which he might require minimal retraining.
I was not satisfied therefore that the plaintiff suffered any loss of income earning capacity beyond June 2010.
I assessed the plaintiff's income loss for the period from May 2008 and June 2010 at $93,260.40.
Out of pocket expenses
Past out of pocket expenses were agreed in the sum of $31,433.
For the future the plaintiff claimed a cushion of $15,000 to meet the expense of consultations with his general practitioner and Dr Tame and for medication.
The defendant disputed this claim because the cost of medication claimed by the plaintiff exceeded substantially the amounts paid to the date of the hearing by the workers compensation insurer.
In the absence of clarification, I adopted a more moderate figure for future out of pocket expenses of $10,000.
ORDERS
Verdict for the defendant.
The plaintiff is to pay the defendant's costs of the proceedings.
The exhibits are returned.
My reasons are published.
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Decision last updated: 20 April 2012
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