Hans-George Bachtle v Tnt Australia Pty Limited Trading As Kwikasair Pty Limited [1996] ACTSC 116 (8 November 1996)

SUPREME COURT OF THE ACT

HANS-GEORGE BACHTLE v. TNT AUSTRALIA PTY LIMITED trading as
KWIKASAIR PTY LIMITED
No. SC112 of 1995
Number of pages - 11
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HOGAN A/J

CATCHWORDS

Damages - assessment - personal injury - work accident - lifting - back injury - groin injury - no matter of principle.

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

HEARING

CANBERRA, 18 September and 22 October 1996
8:11:1996

Counsel for the Plaintiff: Mr G Lunney

Instructing solicitors: Snedden Hall and Gallop

Counsel for the Defendant: Mr H Shore

Instructing solicitors: Hunt and Hunt

ORDER

THE COURT ORDERS THAT:
There be judgment for the plaintiff in the sum of $109,926.00.

DECISION

HOGAN A/J This is an action for damages for personal injury sustained by the plaintiff in an accident at work on 13 July 1987. Liability has been admitted by the defendant.

2. The plaintiff was born in Germany in 1950. He served an apprenticeship as a motor mechanic and came to Australia in 1968. He immediately obtained work as a mechanic with ACTION, where he came to be a specialist in the care of automatic bus transmissions.

3. He married in 1970.

4. In 1985 he felt the need for a change of occupation and began work with the defendant in its Kwikasair division. About three months before the accident, he was employed to do deliveries for David Jones, especially of white goods.

5. On 13 July 1987, the truck that was usually used for those deliveries was not available. It was fitted with a hydraulic lowering system at the back. The vehicle that was supplied in its place was not so equipped.

6. The plaintiff and a Mr Murphy were instructed to deliver a large, two door refrigerator.

7. On arriving at the place where it was to be delivered, they removed from it the cardboard cover, and laid it on its side on a piece of carpet, on the floor of the tray of the truck. Mr Murphy remained on the tray, pushing the unit to the back, while the plaintiff stood at the back, on the ground, pulling it towards himself.

8. When the centre of gravity of the unit passed beyond the edge of the tray of the truck, the plaintiff took the weight of it as it began to descend towards the ground.

9. As he attempted to stop the refrigerator from falling too fast to the ground, he felt, according to his evidence, a pain in his lower back, going into his right groin, into his right testicle and down his right leg.

10. Despite continuing pain, he and Mr Murphy finished the deliveries for that day. He reported the accident to his foreman and went to see his general practitioner, Dr Wright, on 15 July 1987. He had previously consulted Dr Wright about his right ankle and other common ailments.

11. Dr Wright noted a complaint of pain in the right groin, testicle and mid thigh, attributed to heavy lifting working for Kwikasair. On examination, he could not find any hernia. There was tenderness at the external inguinal ring. He prescribed rest and heat and certified the plaintiff as unfit for work for 10 days.

12. On 24 July 1987, the plaintiff was still suffering pain, and Dr Wright wrote to his employer asking that he be given light duties, which were arranged.

13. The plaintiff's evidence was that despite the lighter articles that he was delivering, he worked constantly and hard and continued to suffer discomfort in the right groin, especially towards the end of a busy day. He accepted Dr Wright's explanation that it was muscular strain and did not consult him about it. The next visit to Dr Wright is recorded in his notes on 17 July 1989, and reads, "Worn out - working too hard and long (12 hours/day) - been getting irritable/bad tempered". It was noted that his right foot was still painful and he was referred to Dr McNicol, but there is no note of any complaint about the back or groin.

14. In September 1989, the plaintiff decided to leave Kwikasair and applied for a job with ACTION again. In his application he gave as his reason for leaving Kwikasair "long hours", and did not write anything in the part of the form that asked for "Details of any serious physical disability or past injury likely to affect performance of duties".

15. The plaintiff did not return to the specialised work on transmissions that he had previously had, but was required to perform the normal duties of a motor mechanic, working on buses and other vehicles.

16. On 8 November 1991, while lifting a heavy brake drum, the plaintiff felt a sharp stabbing pain between the shoulder blades. The next day his neck was stiff. On 13 November 1991 he consulted a doctor at Dr Wright's practice, who noted the complaint of pain between the shoulder blades, stiff and sore neck and then throbbing pain across the left upper back, shoulder and down the outside of the left arm to the elbow. He was prescribed physiotherapy and given about four weeks off work. CT scans showed some pathology at C6/7.

17. He saw his general practitioner again on 27 November 1991 and 6 January 1992 when he was referred to Dr Chandran.

18. Dr Chandran examined him on 20 February 1992 and found evidence of left C6 nerve root involvement, though there were no neurological deficits or restrictions on neck movement.

19. Treatment was conservative, and the general practitioner noted on 10 June 1992 that he was much better, but cautioned him against any heavy lifting.

20. On none of these visits was there recorded any complaint of back or groin pain.

21. However, early in 1993 he consulted Dr Wright again. He was referred for x-ray of his lumbosacral spine and renal/prostate ultrasound. The history recorded on the radiology request was "Neuralgic pains in R testicle, groin; upper inner R thigh and R loin occasionally related to effort". Dr Wright's notes referred back to the incident of July 1987, and recorded "R testicular/pubic pain, occasionally shooting into the mid R thigh (upper) and occasional R loin/back pain, previously related to straining/pushing".

22. The x-ray of the lumbar spine was normal, as was the ultrasound. Dr Wright referred the plaintiff to Dr Ashton, who saw him on 2 March 1993. The plaintiff's complaints to him, as reported on by him in June 1994, did not include any complaint about back pain or back injury, either in the original incident or since. The history of the groin pain was that he had been experiencing three or four episodes of pain a year lasting for a few days. Over the recent months it had become a daily occurrence.

23. Dr Ashton could find nothing abnormal on examination. His diagnosis was that the plaintiff had probably suffered some muscular skeletal strain in the right groin, but that it was overlaid by anxiety and depression. He thought it likely that the plaintiff would always have some discomfort and would be best employed in jobs where lifting was not required. Dr Wright seems to have agreed with that opinion.

24. On 22 March 1993, in connection with this episode of pain, the plaintiff submitted a claim for Worker's Compensation, in which he described the accident as one in which he "hurt a muscle in my groin - right side".

25. He described the injury suffered as "strain to muscle", and the parts of the body affected as "groin area".

26. The defendant's solicitors sought an opinion from a surgeon, Dr Griffith, who examined the plaintiff on 21 October 1993. He recorded the plaintiff's description as follows,

He stated that he suffered a sudden onset of severe right-sided
inguinal pain radiating to the right testicle which 'dropped
me'.

On examination, he found a full range of lumbar movement. He reported,

Palpation of the paravertelinal musculation in the upper lumbar
region revealed a solitary trigger point of localised pain which
did not reproduce the radiating pain of which he complained. It
was, however, the only tender spot identifiable.

27. In his opinion, the original diagnosis of musculo-ligamentous strain caused by the lifting incident was reasonable. The ongoing source of pain was less clear, however. A musculo-ligamentous strain would ordinarily be expected to recover in six weeks. There were indications however of a significant neuralgic element, likely to be arising from the L1 level in the lumbar spine. He suggested further neurological investigation.

28. Dr Wright referred the plaintiff to Dr Colin Andrews, consultant neurologist. He found nothing abnormal on physical examination. However, the CT scan suggested to him a broad based posterior disc protrusion at L5/S1, and he ordered an MRI scan, which showed slight annular bulging of the L5/S1 intervetebral discs. Dr Andrews suggested an hypothesis that if there was a disc lesion causing stretching of the posterior ligament which is innervated by L1, this could have accounted for the referred pain into the groin.

29. This hypothesis seems to me to be consistent with Dr Griffith's suggestion. Dr Andrews referred the plaintiff to Dr Chandran to see whether surgery might help.

30. Dr Chandran examined him on 12 April 1994, but found no neurological deficits. He suggested further physiotherapy, which the plaintiff underwent. It did not help. He returned to Dr Chandran complaining that the pain was getting him down.

31. On 20 June 1994, Dr Chandran operated to excise the L5/S1 disc. The plaintiff was off work recovering from the operation from 20 June 1994 to 18 August 1994. As he rested, he thought at first that the groin pain was disappearing. When Dr Chandran reviewed him on 4 August 1994 he reported a big improvement. However, when the plaintiff returned to work, he found that the pain returned so that he felt he had not received any benefit from the operation.

32. He returned to normal duties, but told the foreman that he would not do any lifting. He seems to be prepared to co-operate.

33. In about April 1994, ACTION had introduced shift work for the mechanics, with the first shift from 6.00am to 3.00pm and the second from 10.00am to 7.00pm. Those who worked shifts were paid extra, in the form of a 25% shift allowance. The plaintiff chose not to work shifts, working from 7.30am to 4.30pm. He did not therefore get the shift allowance. His evidence was that he chose not to do the shift work because of his condition.

34. Dr Griffith re-examined him for the defendant on 12 August 1994. This was only days after Dr Chandran had reviewed him after the operation. He reported to Dr Griffith that there was only occasional pain in the right inguinal region, its intensity having subsided from 8/10 to 3/10. The pain was quite minimal when walking around but tended to recur when he sat for any length of time.

35. On physical examination, Dr Griffith found "a hint of an impulse" at the internal inguinal ring, but no other significant abnormality. In his opinion at that time, the prognosis seemed good in the medium term. The plaintiff appeared to be able to cope with his present job.

36. Dr Griffith gave careful consideration to the question of the relationship, if any, between the disc bulge discovered on surgery and the lifting accident of 1987. He thought it reasonable to propose that the bulging may have been precipitated by the incident. There was no sign of degeneration at other lumbar levels, which strongly suggested that any changes found were likely to be the result of trauma rather than degeneration. Although a disc bulge is not normally an indication for surgery, without MRI and CT investigation, which Dr Chandran had not sought, the fact that the operation was uneventful and appeared at that time to have given major relief of the inguinal pain, seemed to indicate that surgery had been justified.

37. So far as the plaintiff was concerned, it was, as counsel for the defendant properly conceded, reasonable for the plaintiff to have undergone the surgery in an attempt to alleviate his pain.

38. Dr Griffith found no suggestion of ongoing problems related to the cervical region, resulting from the incident on 8 November 1991.

39. The radiography was referred to Dr Sorby, a specialist in diagnostic radiology at Royal North Shore Hospital. He reviewed it in May 1995 and reported that he had no disagreement with the original report. The MRI scan was essentially normal. He thought it very unlikely that any significant disc injury did occur in 1987.

40. Dr Cameron, a consultant in occupational medicine, examined the plaintiff for the defendant on 14 July 1995.

41. The plaintiff gave him a history which was consistent with his evidence and with what he had told other doctors. He said he was virtually pain free when lying in bed on his back, but during the day experienced a gradual increase in pain in his right groin and testis and in his back. He also had occasional symptoms down his right leg. He was working full-time but avoiding heavy lifting.

42. Dr Cameron found no significant abnormality on examination. He reviewed the radiography and other reports. In his opinion, despite an apparently consistent history, the story did not really ring true. He though that there was no impairment of the back resulting from injuries sustained in 1987, and only 8% of a most extreme impairment of the back resulting from the operation.

43. Of course, in the legal sense, since the plaintiff reasonably underwent the surgery in an attempt to deal with his pain, that distinction does not matter.

44. The solicitors sought a supplementary report from Dr Griffith, supplying him with Dr Cameron's report and information from Dr Chandran and Dr Andrews that he had not previously seen. On reviewing that material, he came to the conclusion that, on the balance of probabilities, there had been no major disc disruption precipitated by the 1987 lifting incident. It was less, rather than more, likely that the bulge had been precipitated by trauma.

45. The solicitors asked him to examine the plaintiff again, which he did on 1 July 1996. As he explored the right inguinal ring he was able to reproduce the exact pain of which the plaintiff complained.

46. On reflecting on the entire history, and in the light of his previous experience, he considered that there was justification for presuming that there was a basic mechanical problem causing the ongoing pain, but that it was in the inguinal canal, and was not related to the disc in the spine.

47. He advised that a block of the relevant nerve should be performed by an anaesthetist, to confirm his diagnosis beyond doubt. Treatment might then be indicated, by surgery. Without treatment there would be no improvement.

48. The plaintiff's solicitors referred him to Dr Scott, occupational physician. He found some limitation of lumbar movement. He noted Dr Chandran's opinion and agreed with it. He thought his present condition was largely functional. What he would or might have said if he had seen Dr Griffith's report we shall never know, as he does not appear to have been supplied with a copy, and he was not called to give evidence or be cross-examined.

49. In fact, the only doctor who was called to give evidence and be cross-examined was Dr Keiller, who was asked to examine the plaintiff after the hearing had commenced, since Dr Griffith's latest reports had been served on the plaintiff's solicitors only a short time before.

50. Dr Keiller examined the plaintiff on 20 September 1996. He was supplied with copies of the reports by other doctors including the most recent ones from Dr Griffith. He noted two residual problems, one in the back and the other in the groin. Although double pathology is considered rare, it is, he reported, not impossible for injuries to occur to both groin and low back in a heavy, unguarded strain such as the plaintiff had described. He agreed with Dr Griffith, and recommended a nerve block as a diagnostic test, and, possibly, exploration of the inguinal canal whatever the result. He advised that the exploratory operation would be just that, exploratory. No guarantee of success was possible. It might cure his groin pain. It would not improve his back symptoms.

51. In cross-examination, the plaintiff gave as his explanation for the absence of any complaint of back pain for years after the accident as being that most of the pain was in his groin.

52. Mr Murphy was called by the plaintiff to give evidence. He stated that when the accident happened, the plaintiff complained of pain to his back and that he put his hand around to the lower back area. He did not remember any immediate complaint of pain to the groin area.

53. A statement that he had signed and given to an investigator in February 1996 was tendered in evidence. In that statement the description of the accident included the following,

George took the weight as I lowered the machine, then when the
machine was resting on the ground, George grabbed his back or
lower body and said he had pulled something out and hurt
himself.

I do not remember where we made that particular delivery, but
I clearly remember George clenching his back after taking the
weight of the machine.

54. Such minor inconsistencies as there may have been in his evidence are easily attributable to the long lapse of time, and I accept Mr Murphy as a witness doing his best to tell the truth as accurately as he could remember it.

55. Mr Kennedy also gave evidence for the plaintiff. He had worked with him at ACTION both before and after the plaintiff worked for the defendant. He described him before the accident as being a very strong young man. After the accident, he had sometimes observed the plaintiff showing signs of pain and sometimes putting his hands on his back.

56. The plaintiff's evidence about his condition both before and after the accident was corroborated by his wife, who was not cross-examined.

57. The finer details of the evidence from Mr Murphy and Mr Kennedy do not matter very much, to my mind. Loin pain could be described as back pain by the layman.

58. On considering their evidence, the whole of the medical evidence, and that of the plaintiff and his wife, I accept that the plaintiff felt pain in his back as well as in his groin at the time of the accident. Although he continued to suffer some pain in his back thereafter, he thought that the main problem was in his groin, that the problem was muscular, and that there was little that Dr Wright could do about it. It was not until Dr Andrews suggested it to him that he considered that his back might be the cause of his problems, and, despite Dr Chandran's initial reluctance, Dr Chandran did eventually offer the operation to him.

59. It now seems clear that it was Dr Griffith who identified the actual cause of the main problem. Dr Keiller adhered to his view that there was probably some referred pain from the back as well. I see no reason to reject that hypothesis.

60. The plaintiff considered Dr Griffith's and Dr Keiller's reports and recommendations. After his experience with the operation on his back, and in the light of the absence of any assurance of success, he is not prepared to undergo a further operation at this stage. That being so, he does not want to undergo the nerve block either. I think his attitude is reasonable.

61. In summary, the plaintiff suffered in the accident, an injury to his lumbar spine and in his groin, though it was pain in the groin area that was his main concern over time.

62. He was able to return to work, refraining from heavy lifting. His pain was intermittent.

63. Some seven years after the accident, his discomfort increased, and after investigations by Dr Andrews and Dr Chandran, he sought a lumbar operation, which afforded him little real relief, because, as now seems probable, most of his symptoms are referable to a type of hernia in the groin.

64. Although further investigation and operation might largely cure him, apart from the consequences of the back operation, he, not unreasonably, does not intend to undergo the investigation or the surgery. That means that his present condition will continue and may possibly worsen.

65. So far as an award of damages is concerned, if his general damages were to be reduced on account of the likelihood that he might later have the operation, there would be an increase in the award for the cost, loss of income and pain associated with the operation itself.

66. Nevertheless, I think that it is unlikely that he will undergo it, and I propose to assess the award on that basis.

67. The plaintiff is 46 years of age. It is nearly ten years since the accident. He has a life expectancy of about 28 years.

68. For pain and suffering and loss of amenity, I award $50,000.00, of which $20,000.00 relates to the future.

69. For interest on the past component, I award $6,000.00.

70. The out-of-pocket expenses are agreed at $11,442.00. Interest was not claimed on them or on any part of them. There was no evidence or agreement on what part was paid by the Worker's Compensation insurer to enable me to assess it, in any event.

71. I accept that the reason why the plaintiff has not accepted shift work is that he would suffer additional discomfort because, for him, longer hours would be involved. There is no way of testing whether he would have taken it had he not been injured, but, despite the fact that he and his wife had no urgent need for extra money, I am prepared, on balance, to accept that he probably would have done so. The loss of wages, including the Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 component, for the first period of absence was $707.58. There is no real or reliable evidence of further loss of income while the plaintiff remained with the defendant. Interest is not claimed on that amount.

72. Exhibit B contains material setting out the earnings of other workers at ACTION said to be comparable to the plaintiff. There is a summary prepared by counsel for the plaintiff setting out an approximate differential in net weekly earnings. Counsel claimed that the differential is accounted for by the plaintiff's inability to do shift work. So far as 1992, 1993 and 1994 is concerned, that can not be right, since shift work was not introduced until about April 1994. It seems that there may have been a difference for other reasons, ranging from $120.00 a week in 1992 to $53.00 a week in 1994. The differential was $220.00 a week in 1995 and $133.00 a week in 1996. The evidence is that it was based on 25% of earnings, which, for the plaintiff, have ranged from $400.00 a week to $425.00 a week over the last four years. I understand those figures to be gross earnings. On that sort of evidence calculation becomes hazardous. There were other absences after shift work was introduced, for which allowance will be made in full.

73. I would allow the loss of shift allowance broadly on the basis suggested in the Statement of Particulars, at the rate of 25% of current net weekly earnings of about $302.00 a week, which is about $75.00 a week. I allow $7,500.00 for past loss of shift allowance. I allow $1,200.00 for interest on that component.

74. The other losses during employment at ACTION, as set out in the particulars and supplemented by counsel for the plaintiff in his address, after allowing for sick leave, were not contested. Between June 1994 and December 1995 they total $2,596.00. I allow $500.00 for interest.

75. For the future, that same figure of about $75.00 a week provides a starting point. The present value of $1.00 a week for 19 years at 3% is $759.00.

76. However, in addition to the normal contingencies, I take into account the fact that there is no evidence that the plaintiff would have continued to take shift work until he was 65. On the other hand, if he were to lose his position at ACTION, through restructuring of the industry or for any other reason, he would be less able to get work than if he were completely fit.

77. As a matter of discretionary judgment, I would award $30,000.00 for future economic loss.

78. The total award is therefore made up as follows,

General Damages $50,000.00
Interest $6,000.00
Out of pocket expenses $11,422.00
Loss of wages at Kwikasair $708.00
Past loss of shift allowance $7,500.00
Interest $1,200.00
Loss of wages at ACTION $2,596.00
Interest $500.00
Future loss $30,000.00
TOTAL $109,926.00