Codey v Toll Ipec Pty Ltd [2003] ACTSC 62 (4 August 2003)

Last Updated: 15 August 2003

ROBERT LANCE CODEY v TOLL IPEC PTY LTD

[2003] ACTSC 62 (4 August 2003)

CATCHWORDS

NEGLIGENCE - personal injury - unsafe system of work - no issue of principle.

DAMAGES - personal injury - inguinal hernia - surgery causing nerve entrapment - no issue of principle.

Bankstown Foundry v Braistina [1986] HCA 20; [1986] 160 CLR 301

Occupational Health and Safety Act 1989

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

Griffiths v Kerkemeyer [1977] HCA 45; [1977] 139 CLR 161

No SC 170 of 2001

Coram: Master Harper

Supreme Court of the ACT

Date: 4 August 2003

IN THE SUPREME COURT OF THE )

) No SC 170 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROBERT LANCE CODEY

Plaintiff

AND: TOLL IPEC PTY LTD

Defendant

ORDER

Coram: Master Harper

Date: 4 August 2003

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff against the defendant in the sum of $563,500.00.

1. 1. The plaintiff was born on 19 October 1953 and is 49 years of age. His action is for damages against the defendant, his then employer, arising out of an injury which he claims to have suffered in the course of his employment in November 1999.

2. The plaintiff was employed as a truck driver. His duties included loading and unloading his truck, which he described as a 4-tonne pantechnicon-type vehicle. He had been employed by the defendant for some fourteen or fifteen years, and his typical pattern was to start work at 5:30 am, unloading long-haulage semi-trailers, and reloading the goods onto his own vehicle for delivery around Canberra and its local surrounds. The defendant company is a large national haulage and delivery operator.

3. On a typical day, the defendant would spend the first three and a half hours unloading and loading his own vehicle for the day's run. He would then spend the next four to five hours on his delivery round. He would have lunch, and then commence his pick-up run, returning to the depot at Fyshwick at about 5:00pm, where he would unload the pick-up items onto a conveyor belt, finishing by about 6:00pm. There was a range of goods he dealt with regularly, varying considerably in size, shape and weight. At one extreme there were beer kegs, and at the other small parcels and envelopes. To assist with the movement of heavier items, the plaintiff was provided with a two-wheel trolley which was kept in the back of the truck.

4. The plaintiff dealt with some regular customers, while other jobs were irregular or one-off. In November 1999, Butterworths, who were not a regular Canberra customer, were in the process of moving out of their retail premises in the Melbourne Building in Northbourne Avenue, Canberra City. They were principally a publisher of law books and reports. The move took place over a period. The plaintiff would take to their premises in the mornings a number of flat-packed cardboard boxes, perhaps ten or twenty. During the course of the day, these would be assembled by Butterworths' staff who would pack them. The plaintiff would call during the afternoon of the same day to collect such boxes as were ready to be moved. The boxes were sealed and the plaintiff could not see what was in them, except for the odd occasion when the bottom came out of a box. His understanding was that the boxes were filled with books, files, binders and the like. Some were heavy, in the plaintiff's estimate up to 30 kilograms. Others were lighter. The plaintiff identified during his evidence a standard archive box as being the same or approximately the same size as those which were used. These were identified in a report by Mr Ian Burn, a consulting engineer, as having dimensions of 400 x 540 x 270mm, with an empty weight of 0.95 kilograms, and a weight when filled with volumes of law reports of about 30 kilograms.

5. The offices of Butterworths were located on the upper floor of the Melbourne Building, and were accessible by stairs from a door to a rear laneway. There was a straight staircase of eighteen steps from ground level, then a landing, and a further set of seven steps to the Butterworths office level. There was no lift in the building. The plaintiff's evidence was that he would load three or four boxes onto the trolley, with the heavier boxes at the bottom. He would wheel the trolley to the steps, and manoeuvre the load down by letting the trolley drop from step to step, leaning back, and controlling the trolley by pulling back on it at each step.

6. On the occasion in question, the plaintiff was engaged in such an exercise when he thought he pulled a muscle in his groin. This happened on a Friday, although the precise date was not established. On the following morning, his wrist had swollen and he had pain in the inner left groin area, about a hand length below the belt line. He said in evidence that it was lucky that it had happened on a Friday because he would not have been able to work the next day. He decided that he would not return to the Butterworths job, unless there was only one box to be moved. Otherwise, he would ask that one of the younger casual employees be sent out to pick up the boxes.

7. The plaintiff said that he did not immediately seek medical attention, as he hoped that his symptoms were temporary and would quickly recover. In fact, the swelling in his wrists went down quite quickly, but the pain in the groin, in his words, never went. At Christmas he attended at a medical centre in Queanbeyan where he was prescribed antibiotics, but these did not seem to do much at all. He took a few days recreation leave over Christmas at the end of 1999, thinking that if he gave it a rest it would probably fix itself up, but to no avail. On his first day back at work after Christmas, he was still very sore in the groin, and the next day he attended his usual general practitioner, Dr Gavranic at Bungendore. Dr Gavranic referred him for an ultrasound and gave him a certificate for time off work. He subsequently sent him for a further ultrasound, and referred him to a surgeon, Dr Hassan.

8. It appears from medical records tendered in the defendant's case that the plaintiff attended the Crawford Street Clinic in Queanbeyan on Saturday 18 December 1999 where he saw Dr Azoury. The history recorded was as follows:

Tender left testicle since one week, worse yesterday, difficulty walking. Vasectomy eight years ago, left scrotum painful since, right testicle usually bigger.

9. On examination, Dr Azoury recorded findings as follows:

Tender left epididymis. Right testicle has posterial cyst attached c/w epididymal cyst. Left testicle normal.

10. The doctor diagnosed epididymitis (inflammation of the epididymis) and prescribed antibiotic medication.

11. The plaintiff then attended the surgery of Dr Gavranic on 5 January 2000 complaining of pain in the left groin area. He gave Dr Gavranic a history consistent with his evidence. He said that on waking on the morning after the incident with the trolley, he had very sore wrists and tight swollen forearm muscles, which eventually settled well, as well as a painful left scrotum which did not settle down, and had continued at varying intensity in the general area of the left groin and scrotum since then. He told Dr Gavranic that he had consulted a doctor in Queanbeyan the previous week, but that the treatment prescribed had not helped. He also said that he had gone to work the day before (4 January) but could not continue because of the pain. Dr Gavranic found on physical examination a good deal of tenderness along the left side of the scrotum, along the perineum and above the pubis. He ordered a series of investigations which showed a small left indirect inguinal hernia. He referred the plaintiff to Dr Hassan, consultant surgeon at Deakin.

12. Dr Hassan saw the plaintiff on 27 January 2000 and was given the same history. He formed the view that the scrotal pain was most probably radiating from the stretched nerve at the neck of the hernia. He performed surgery on the plaintiff on 8 March 2000 at John James Memorial Hospital under general anaesthetic, described as left inguinal herniorrhaphy. This involved an incision, repair of the hernia with nylon stitching, the application of a small piece of mesh and a repair to reinforce the posterial wall of the inguinal canal. The plaintiff made an uneventful recovery and was discharged a couple of days after the operation with advice to convalesce for three weeks and restriction to light duties for the next six weeks. Dr Hassan also advised the plaintiff to avoid heavy lifting and strenuous exercise for three or four months.

13. At review appointments, the plaintiff continued to complain of attacks of pain and inability to walk properly. On 30 May 2000, Dr Hassan told the plaintiff his diagnosis was abdominal nerve entrapment, which was fairly common after such surgery, and should be resolved with an injection of local anaesthetic, perhaps combined with cortisone. He said that occasionally in severe cases, surgical exploration of the scar and division of the nerves might prove necessary, but that many such pains settled with time and it was a reasonable option for the plaintiff to leave things for perhaps a year after the surgery to see whether the pain had by then subsided. Probably not surprisingly, this was the plaintiff's preference.

14. On further periodic reviews, Dr Hassan found that the left groin pain had increased although there had been occasional improvement. On 23 August, the plaintiff complained of waves of sharp darting pain in the groin. He was referred to Dr John Corry, rehabilitation consultant, who prescribed medication. After an unsuccessful trial on Epilim, Neurontin was prescribed and the effect was a dramatic decrease in the intensity of the groin pain. Unfortunately, Neurontin made the plaintiff drowsy and he was concerned about driving after taking it. By 21 December 2000, the plaintiff told Dr Hassan that the sharp nagging pain had begun to increase in intensity. On examination, the doctor found a moderate degree of tenderness along the anatomical course of the left ilio-inguinal nerve. In May 2001, Dr Hassan referred the plaintiff to Dr Colin Andrews, neurologist. Dr Andrews confirmed the diagnosis of entrapment of the nerve, which might need surgical release or avulsion. Dr Andrews suggested that injections of local anaesthetic and cortisone at the tender points might relieve the pain. The plaintiff declined this, on the basis that he had been told by one of his other doctors that it would not be helpful. In his evidence, the plaintiff explained that Dr Gavranic and Dr Andrew Morris (a doctor to whom he had been referred by the defendant or its workers compensation insurer) had told him that these injections amounted to no more than a "quick fix" which would provide only temporary relief. The plaintiff said that he was not keen on the idea of injected cortisone, and that the two doctors had advised him against agreeing to this form of treatment.

15. Dr Hassan saw the plaintiff again in September 2001 when arrangements were made to admit him to hospital for exploration of the left spermatic cord/inguinal canal and release or avulsion of the ilio-inguinal nerve. This surgery was performed at John James Memorial Hospital on 10 October 2001. Multiple adhesions were found and these were divided and the spermatic cord identified, but it proved impossible to identify the ilio-inguinal nerve. The end of the nerve was found and was avulsed (forcibly pulled away from its origin) to avoid further symptoms from the entrapment. Dr Hassan restored the previous hernia repair. Again the plaintiff made an uneventful recovery and went home after a couple of days. Dr Hassan reviewed him ten days after the operation when the plaintiff said that his pain had more or less abated although he was not comfortable. Dr Hassan accepted that the plaintiff continued to suffer from pain in the left groin in spite of the second operation. The plaintiff found it difficult to bend or lift anything heavy. Shooting pain in the groin interfered with his sleep if he turned in bed. He found it difficult getting in and out of his truck. An attempt to resume light work was unsuccessful. On examination three months after the second operation, Dr Hassan found a marked degree of tenderness still present in the groin, accompanied by numbness and reduced sensation of the skin. The plaintiff was continuing to take Neurontin occasionally, and painkilling medication as required. Dr Hassan had some difficulty in pinpointing the cause of the continuing pain in the left groin following the second operation, but accepted that it was genuine and thought that it could have been caused by injury to nearby structures such as the left inguinal ligament, the conjoint tendon or the ilio-femoral ligament of the left hip joint. His diagnosis, which he said was necessarily vague, was neurogenic or neuropathic pain which was by that time more or less chronic. From his experience in such injury cases, he thought that the prognosis was poor, and that the pain might even increase because of strain put on the left hip joint by the limp adopted by the plaintiff to minimise the existing pain. He did not think that the plaintiff was fit to resume his pre-injury work but thought that he might benefit from a rehabilitation program and that physically he ought to be capable of sedentary work.

16. Dr Hassan sent the plaintiff to Dr Nugent, a urologist, for a second opinion. Dr Nugent saw the plaintiff on 6 March 2002. He took a history from the plaintiff and had the benefit of background information from Dr Hassan. On examination he found tenderness over the left pubic tubercle especially when rolling the spermatic cord from side to side. The left testicle was slightly tender to palpation, and there was slight numbness below the wound on the left side. Dr Nugent concluded that the plaintiff had some neuralgia along the inguinal nerve which had not responded to the hernia repair or the attempt to relieve the nerve entrapment. He said that it was possible that the initial accident had caused the hernia which impinged on the nerve.

17. Dr Hassan reviewed the plaintiff on 7 March 2003, and found that he was still limping and had pain in the left groin if he sat for more than a few hours. On examination, he confirmed tenderness along the course of the left ilio-inguinal nerve and the left side of the suprapubic region. The plaintiff told him that he could not drive for long distances and could not walk for lengthy periods. Dr Hassan said that it seemed possible that the 1999 injury had initiated the left groin pain and that the surgery to repair the hernia had exaggerated the pain. By this time, Dr Hassan thought that further surgery could not be recommended.

18. Dr Hassan gave evidence at the hearing by telephone. Under cross-examination, he conceded that it was possible that the hernia had been caused in an incident in 1996, in which the plaintiff made a workers' compensation claim for an injury which occurred when he stepped out of the back of a truck. The injury was described as a pulled muscle or tear in the groin. He was asked in re-examination to assume that the 1996 incident had caused the plaintiff to take only two days off work, after which the symptoms completely resolved, and that he had returned to heavy work and continued without symptoms until 1999. He expressed the opinion that on those facts, the hernia occurred as a result of the 1999 incident, and not the 1996 incident.

19. On 4 February 2002, the plaintiff was seen by Dr Eaton, a occupational physician, for the purposes of a report to the defendant in connection with the plaintiff's continuing incapacity for work. Dr Eaton agreed with the diagnosis of chronic neurogenic/neuropathic pain disorder of the left inguinal region. He thought that the prognosis for further improvement in the management or control of the pain was poor, and that the pain was likely to continue indefinitely. The plaintiff was in his opinion totally unfit for work as a delivery driver and loader. He thought it highly unlikely that the plaintiff would ever be fit to return to his pre-injury work. He was fit for light sedentary work only, and even this type of work could be difficult when the pain was severe and unremitting. He regarded treatment with Neurontin as entirely appropriate, and thought that the plaintiff should take it more regularly for more effective pain control. If he was to rejoin the workforce, he would need to be redeployed and possibly retrained for a more suitable sedentary occupation. Dr Eaton's report was tendered by the plaintiff without objection, and he was not required for cross-examination.

20. The plaintiff gave evidence that at about the time he saw Dr Eaton, he was called to a meeting to discuss going back to work. The suggestion was that he might drive a small van collecting and delivering airfreight items, which would be limited to mail and smaller parcels. He was telephoned, however, a couple of days before he was due to start work, and told that the defendant had no light work available. He telephoned a manager he had previously worked with at Fyshwick, Jim Hannaford, to see what had gone wrong. Mr Hannaford said it had nothing to do with him and that Sydney had determined that there were no light duties. The plaintiff was upset that Mr Hannaford had not rung him personally, and particularly to be informed that if he presented himself at the defendant's premises he would be told to leave immediately. It was later explained to him by a female employee at the Sydney office of the defendant that regulations required this, in case the plaintiff hurt himself again. In May 2002 his employment was formally terminated.

21. Thereafter, the plaintiff's evidence was that he looked for light work. He wrote letters of application and sent his resumé to potential employers, and made telephone calls. Inevitably he would be questioned about his work history, and typically would be told that the employer would get back to him. None of these endeavours resulted in his being offered employment.

22. The plaintiff lives on a 50-acre (20-hectare) rural block near Bungendore. Before the injury, he ran sheep and cattle, and looked after crutching, fencing, collecting and cutting firewood and most physical tasks on the property. He rode a horse and a motorcycle in the course of these activities. In addition, he was responsible for what he described as the normal things around the house. Following the injury, he is unable to do any of the heavier work on the property, and little around the house. His twenty-year-old son Luke lives at home with the plaintiff and his wife, and Luke and Mrs Codey do most of the work.

23. Two or three years ago, the plaintiff purchased a larger property, 560 acres (about 220 hectares) at Murrumbateman. He had been looking for such a property for some time and bought it reasonably cheaply, but said that it has not worked out. He runs thirty cattle on the property, and has an arrangement where some friends agist sheep and horses, in return for which they help the plaintiff with work on the property.

24. The loss of the capacity to work on the properties is, it is submitted, a significant one for the plaintiff, who enjoyed rural outdoor life and working with stock. The plaintiff left school after Year Eight and has some difficulty with reading and writing. He now has few if any other interests or hobbies. The loss of his outdoor activities has had a greater impact on him because of this.

25. The injury has also had an a negative impact on the sexual relationship between himself and his wife. This was an active relationship prior to the injury, and has almost entirely disappeared by reason of the pain which afflicts the plaintiff on the occasions when he has attempted intercourse. This has had a predictable effect on the relationship generally, and on the plaintiff's level of contentment with life.

26. The plaintiff, asked in chief about how he saw his future, said that he wanted to try to find a suitable job and wanted to work, but he did not know what kind of work might be available which he could do.

27. He was extensively cross-examined. It was put to him that as an employee of the defendant, he had been instructed that if he needed help, he was to ask for it. He said that this was not correct. He was specifically asked about a supervisor named Steve McNally, and it was put to him that Mr McNally had told him that if he needed assistance he was to call for it. The plaintiff agreed that this was the arrangement if a driver got into too much trouble. He was asked whether he had ever asked for assistance, and he said that he had on one occasion, when he had delivered a keg of beer to a tavern, and removed it from the back of the truck. It turned out that the tavern was closed, and he was unable to lift the keg back onto the truck. In those circumstances he had called for help which had been forthcoming.

28. He was asked about Butterworths as a customer of the defendant. He agreed that he had been there previously from time to time to deliver the occasional carton of books. He described Butterworths as a very small customer in Canberra, though a major customer of the defendant Australia-wide. The staff of Butterworths in Canberra were all female. He had been given no specific instructions about how to carry out the work for Butterworths on the occasion of their office move. He had never been given any instructions on how to operate the trolley provided to him