Jeffrey Harris v UGL Limited [2012] NSWDC 41

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 1The 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. 2In 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. 3The 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. 4On 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. 5The 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. 6He 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. 7As 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. 8The plaintiff said he made no complaint of injury at the time but the remaining members of his team heard his expletives. 9The 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. 10Before 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? 11In 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. 12The 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. 13Mr 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. 14Mr 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. 15Mr Kevin Morris also said he did not know what work the plaintiff was doing at the time of his claimed injury. 16Mr 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. 17Mr 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. 18The 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. 19Mr Millbourn said there were definitely not 12-16 bolts on the cover of coupling boxes. At most there were eight. 20Mr 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. 21Mr Millbourn accepted that there was no FMI for the box that the plaintiff highlighted on Exhibit 4. 22Mr 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. 23The 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. 24I 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? 25The 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. 26Mr 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. 27Mr 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. 28Mr 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. 29Mr 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. 30The 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. 31However, Mr Neil Morris and Mr Kevin Morris confirmed that the plaintiff complained of discomfort before Mr Trpenovski gave him notice. 32I was satisfied therefore that the complaint of injury was not generated as a response to the loss of work. 33The 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? 34The 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. 35Asked 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. 36The 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. 37In 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". 38The 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. 39Dr 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. 40Associate 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. 41The 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. 42The 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. 43Dr 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. 44Dr Tame diagnosed an irritation of the ilio-inguinal nerve that could be secondary to a small hernia. 45Dr 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. 46Dr 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. 47Professor 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. 48Dr 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. 49Dr 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. 50I 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. 51I 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. 52Although 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.