Ford v Vox Retail Group Limited
[1998] QDC 272
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- Unreported Judgment
- Ford v Vox Retail Group Limited[1998] QDC 272
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Ford v Vox Retail Group Limited[1998] QDC 272
Ford v Vox Retail Group Limited[1998] QDC 272
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 2996 of 1996 |
BETWEEN:
MICHAEL PATRICK FORD | Plaintiff |
AND:
VOX RETAIL GROUP LIMITED | Defendant |
REASONS FOR JUDGMENT - WOLFE D.C.J.
Delivered the 16th day of October 1998
In this action the plaintiff who was born on 8 March 1970 claims damages for personal injuries alleged to have been sustained on about 14 June 1994 during the course of his employment with the defendant. Both liability and quantum were in issue. Much of the trial involved the question whether a nerve in the plaintiff's right foot was crushed or damaged at the defendant's premises. The plaintiff did not cease to complain of pain and disability until 2 July 1996 when he attended a church meeting.
The plaintiff was employed on a casual basis as a major assembler. This involved his assembling boxes of white goods such as refrigerators or washing machines by transporting them around the defendant's warehouse, sometimes to the loading area. He used a pallet truck or type of forklift (“the forklift”) to do this. On 14 June 1994 the plaintiff injured his right foot when a washing machine landed on his right foot while attempting to unload the forklift.
The plaintiff was wearing leather shoes at the time. He claimed that the defendant was negligent. On the plaintiff's case, liability depended upon whether or not the defendant was subject to a duty to provide steel capped boots and/or to ensure that the employee wore them. The defendant conceded that had the plaintiff been wearing steel capped boots the risk of injury to the fore part of the his foot, which would normally be covered by a steel cap, either would not have occurred or would have been reduced. The defendant, however, asserted that the plaintiff was guilty of contributory negligence. It was said that the defendant provided two-wheeled trolleys to the plaintiff to unload the forklift and contrary to instructions given to the plaintiff, the plaintiff had failed to use the trolley to unload the washing machines from the forklift. It was also alleged by the defendant that the plaintiff had been negligent by placing his foot underneath the washing machines or too near to the washing machines while unloading them from the forklift, and by failing to fully lower the forklift before unloading the washing machines.
The plaintiff claimed that the defendant was in breach of s9 of the Workplace Health and Safety Act 1989 by failing to provide the steel capped boots and by failing to provided so far as was practicable such information, instructions, training and supervision to enable the plaintiff to perform his work safely and without risk to his health and safety. In answer to this, the defendant alleged that the plaintiff had failed to comply, so far as it was practicable, with instructions given by the defendant for his health and safety at work.
The plaintiff had worked on and off as a part time casual employee with the defendant since 1988. On 20 March 1994 he began working as a casual employee at the defendant's Lawnton store working at least 30 hours per week.
As a major assembler his work entailed driving the forklift to the boxed white goods while standing at its rear, lowering the tines of the forklift to the ground, manhandling the boxes onto the tines which were about two to three metres in length, driving the loaded forklift to the spot where the items were to be placed and then unloading them at that spot. It would seem that the plaintiff's method of unloading the forklift frequently involved lowering the tines of the forklift and then manually pulling or sliding the load off the tines of the forklift.
The plaintiff claimed that relevant incident occurred on 14 June 1994 when he was unloading two boxed washing machines stacked one on top of the other. He said that as that as he was pulling them off the tines of the forklift, one fell on his right foot and he sustained injury.
The plaintiff said that a similar incident had occurred about four weeks before the relevant incident, when he was unloading a refrigerator and had nicked his toe in the process. He gave evidence of reporting this minor injury to a supervisor, Richard Waite, and of asking him whether he could have steel capped boots, but apparently there was no response. He also gave evidence of his speaking about this to two full-time employees who were union representatives about this minor incident. One of them, Bill Williams, was also a member of the defendant's health and safety committee. The plaintiff conceded that after this incident when he cut his toe, he was aware that there was a capacity for him to sustain injury if he did not wear a steel-cap safety boot, and that he did not supply himself with one.
The plaintiff said when he was working at the warehouse between March and June 1994 there were about five supervisors working in the general area with 10 ten or more full time and casual major assemblers. He indicated that the method he had used to unload the washing machines on 14 June 1994 was the way he and other employees usually unloaded such items from the forklift. He said he had never been instructed to use a trolley or any other device to unload items from the forklift. He was aware there were some trolleys but said he was never directed to use one to unload the forklift. He had used trolleys but not in unloading the forklifts. He denied there were plenty of trolleys around the warehouse to be used in removing washing machines from the forklift. He suggested in any event there would have only been four or five trolleys for the ten or so assemblers working from time to time, and that they were directed to load and unload their forklifts as quickly as possible. Although he was shown where the items were stored and how they were to be transported around the warehouse, the plaintiff said that no one had ever shown him or explained to him the correct or incorrect way to take the items off the tines of the forklift. Nor did anyone instruct him not to remove two machines at once from the forklift, and the plaintiff suggested that in fact this system was approved by the defendant as it was quicker. I accept this evidence.
On 14 June 1994 the plaintiff loaded two washing machines, each of about 85 kilograms, onto the forklift and had reached the spot where they were to be unloaded. He had placed the machines one on top of the other and intended to unload them from the side, by pulling them over the tines and then straightening them up. The plaintiff said he had placed his left foot forward and grabbed the bottom strap, with his right hand on the straps on top of the box and pulled the box towards his right foot. As the plaintiff pulled the washing machines towards himself he said one of the washing machines hit his right foot, striking the front part of his foot in the area of his big toe and foot joint. He suggested that the washing machine would not have fallen more than 10 to 20 cm. The front edge landed on his foot, and he yelled out. The plaintiff said he did not remember how long the washing machine stayed on his foot but he pushed it off rather vigorously so that he could lever the boxes over the tines.
Some other employees came to his assistance. The plaintiff experienced significant pain in his right foot. He was taken to the QEII hospital where x-rays were taken and then he returned home. None of the x-rays revealed any fractures in the bones of the right foot. The foot was swollen and he rested it, elevated it, and put ice on it.
Over the first few days after the incident, the plaintiff experienced pain in his big toe and around the big toe area and he was unable to move the big toe. During the period of about six weeks while he was away from work, the plaintiff said that he was in a great deal of pain, unable to move his big toe, unable to walk correctly and unable to put on shoes without pain. At that time he was living with his parents and during this period he received medical treatment from his general practitioner Dr Anthony Conias and treatment from a physiotherapist, Cameron Lillicrap for the significant pain, swelling and obvious neurapraxia from which he then suffered. He took Panadeine forte for the pain. He also saw the orthopaedic surgeon Dr Nutting. On 13 July 1994 he was hobbling around with his great toe held off the floor, and at the request of his employer he saw Dr Trewin. Dr Conias' report of 13 July 1995 records the plaintiff first consulted him on 27 July 1994 and his being in no doubt that the plaintiff was having ongoing pain as a result of the injury. It also refers to the extensive investigations into the source of the ongoing pain, including CAT scans, bone scans, x-rays, multiple orthopaedic referrals, extensive physiotherapy, anti-inflammatory drug use and rest, with very little success.
On 1 July 1994 the defendant warned all employees working in the warehouse that they were required to wear protective footwear, namely steel capped boots.
After he returned to work in August 1994 the plaintiff was provided with steel capped boots and told to wear them in the warehouse.
Findings -- liability
I find that the incident occurred as the plaintiff related it. The plaintiff was injured when he was attempting to lift washing machines off the tines of the forklift and the edge of one machine fell a few inches onto his foot. The plaintiff knew there was a risk of his being injured in this way if he was not wearing steel capped boots, as he had received a slight injury to his foot a few months earlier while performing a similar operation. However he had asked the defendant to supply him with steel capped boots before the incident occurred. The defendant failed to supply them. The defendant was also aware of this risk. At the relevant time it supplied its permanent employees with these boots. The plaintiff proved there was a remedial measure -- the provision of steel capped boots, which if taken, would have prevented the injury. Nor did the defendant train or instruct the plaintiff to use an alternative method of unloading the forklift. Trolleys were not freely available nor had the defendant instructed the plaintiff to use them in unloading the forklift.
Accordingly the defendant was negligent. The defendant failed to prove that the suggested remedial measure, the provision of steel capped boots to casual as well as permanent employees, was impracticable: Rogers v. Brambles [1998] 1 QdR 212. Thus the defendant breached its statutory duty. Indeed the defendant's counsel conceded as much.
However, the defendant asserted that the plaintiff had been contributorily negligent as the plaintiff's conduct involved foreseeable risk of injury to himself, that there was available to him a reasonably practicable alternative course of conduct which would obviate the risk of injury and that his conduct had materially contributed to his injury and showed a reasonable want of care for his own safety. It was said that if the plaintiff had known since mid-May 1994 that without safety boots he ran a risk of injury, then he should have bought a pair of safety boots himself. However it did not seem to me that the duties owed by the defendant to its casual major assemblers and relevantly to the plaintiff, were less in number or degree than those it owed to the full-time major assemblers. An employer owes a duty to its employees, whether permanent or casual, to carry on operations so as not to subject the employees to unnecessary risks of injury: Bankstown Foundry Pty Ltd v Braisitina (1986) 160 CLR 301, 307. At 310 Mason, Wilson and Dawson JJ said:
“A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to a risk of injury. But his conduct must be judged in the context of the finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage.”
Applying that statement of principle to the relevant facts, I find that in all of the circumstances the defendant failed to prove that the plaintiff's conduct amounted to negligence on his part. What was said by Von Doussa J in Fenell v Supervision and Engineering Services Pty Ltd (1988) 48 SASR 6 is particularly apposite:
“The real cause of the plaintiff's injuries was the deficiencies in the system of work. The court should be ever careful not to transfer the blame from an employer or party responsible for ensuring a safe system of work for the protection of the worker to the worker himself by finding that his adoption of an inadequate system amounts to contributory negligence unless the risk of injury from that system was clear and it can truly be said that the worker was foolhardy in attempting to achieve his assigned task in the manner which the inadequate system required. This was not the case where the plaintiff was acting in contravention of an instruction he had been given. He was attempting to make the best of the system, such as it was, to enable the job to be completed on time.”
Return to work
The plaintiff returned to work on 5 August 1994. The swelling had subsided but he said he was in constant pain and still taking Panadeine. He said he was required to walk on the outside of his right foot or on his heel because of the pain. He said the pain in his big toe had decreased a little but he experienced pins and needles in the ball of his foot, a sharp stabbing pain between his big toe and second toe and every so often his foot would go numb. He said the area under the ball of his foot was extremely sensitive, and indicated that he had first noticed this about four to six weeks after the incident. The plaintiff continued to receive treatment from the physiotherapist for a short while after he returned to work. He worked in the defendant's office for about two months, and then he began working as an assembler with small goods. He was supervised by Mervyn Volkner. He gave evidence of experiencing great difficulties in carrying out his duties although he was no longer required to work with the larger white goods. At some stage the office manager, Selwyn Tweedale, handed him a pair of steel capped boots instructing him to wear them every time he was out on the floor. At first the plaintiff wore only one, as he was unable to wear the other on his right foot.
The plaintiff was by all accounts, a hard worker. His supervisor, Mr Volkner, gave evidence of his observations of the plaintiff working and noticing that the plaintiff was dragging his foot. Mr Volkner thought the plaintiff had probably done more work than he should have done and it was obvious to him that the plaintiff was having a great deal of difficulty in carrying out the work. The plaintiff was keen to obtain full time work with the defendant. In October 1994 he and his wife moved from his parents' house. The plaintiff said he remained at work as long as he could because his wife was expecting their first child. During the period from August 1994 until he finally left work, the plaintiff claimed that his hours were increasing, but by about December 1994 he was unable to cope and to continue working. In early December he had two days off. He said he finally stopped work on the advice of his general practitioner, Dr Conias. Ultimately the plaintiff left the defendant's employment on 22 December 1994. He said he left work because he was suffering intense pain and unable to walk without some pain.
January 1995 to July 1996
During the period from June 1994 to July 1996 the plaintiff was able to drive but no longer played any sport. Prior to the incident he was a semi-professional athlete and also played football and cricket. The plaintiff remained out of work between January 1995 and July 1996. During that period the plaintiff said he did not do much but sit around for a great deal of the time, that he walked with the aid of a walking stick, the pain became worse and he made no applications for work as he was in a great deal of pain. He said he made attempts to rehabilitate himself during that period, seeing numerous doctors, undergoing physiotherapy and doing stretching exercises. The plaintiff and his wife met in October 1992 and had shared accommodation for various periods before the incident. When they lived together they shared all domestic duties. They lived with his parents from early 1994 until October 1994, when they set up house together. The plaintiff said he was unable to contribute at all to the domestic activities around their home and his wife did all the domestic work, cleaning, washing and cooking. Because he could not assist her, he estimated she had to do about six hours extra work each week doing the domestic work he would otherwise have done. Her evidence was to the same effect. The plaintiff said that the Tegretol and Epilim he was taking had reacted badly and made him very sleepy. The plaintiff's son was born on 16 January 1995, but the plaintiff was unable to assist much with caring for him or doing other things while he was sitting down. The plaintiff's father mowed his lawn about once a fortnight in summer and about once a month in winter, taking about ¾ hour to do so.
The plaintiff had a small background in computerisation and had worked with the Department of Primary Industries with computers at some time on casual employment for about 35 hours per week. Although the plaintiff was unemployed between January 1995 and July 1996 and made no attempt to gain employment during that period, he said he did not think he was able to work because of pain. Accepting his evidence, it was more probable than not that he was unable to work during this period.
On 2 July 1996, the plaintiff attended a church meeting at the Garden City Christian Church, Mt Gravatt. He said he went to the meeting using his walking stick and, before he entered the meeting, he still experienced pain in his foot. He said at the close of the meeting there was a prayer and a man behind him tapped him on the shoulder and said, “I believe the Lord's saying to me that he wants me to pray for you”, that the plaintiff had said, “Yes”, that the plaintiff was sitting down, the man prayed for him, that the plaintiff's parents, wife and mother-in-law were there too, that they all prayed for him and, “I basically felt a hot sensation running through my leg and the pain was completely gone”. After these prayers, the plaintiff said:
“I got up, I stood up, I had my walking stick still in my hand, I was really quite unsure and I just basically took a step of faith and believed and my foot was healed and I just stepped on it and there was no pain and from that time there has been no pain”.
On 31 July 1996 the plaintiff commenced work with Print Essentials and in January 1997 began full time studies.
The medical opinions
The main issue in the action was whether the plaintiff had suffered an injury to a nerve or nerves in his right foot as a result of a washing machine being dropped on his foot.
At the outset I mention that the defendant tested the plaintiff about the various descriptions of pain given by the plaintiff to the doctors when he was examined by them. In particular the pain and sensations that the plaintiff experienced in the first couple of weeks after the incident, were said to have changed in type and location in the months following the incident. In assessing overall credibility it seemed to me that the plaintiff had actually believed that he suffered from the types of pain he described as having experienced at various times after the incident. Overall he presented as genuine and honest. He did not present as a stoic.
It was not clear exactly what part of the foot had taken the impact of the washing machines, but more probably than not the base of the big toe and the top of the foot took the impact. Dr Tang's written account of the injury on the day of the accident and other evidence indicated that the plaintiff sustained an injury to the front part of his foot where the big toe joins the foot. The plaintiff suffered a haematoma under the right big nail, but did not suffer any lacerations to the skin of his foot, nor were any of the bones in his foot broken. The question then is whether the plaintiff suffered a simple soft tissue injury or whether he sustained a crush injury of some sort to a plantar or digital nerve in his right foot, and if one of his nerves was damaged whether the pain he said he suffered until the event at the church on 2 July 1996, disappeared because the nerve had mended or whether there was some other explanation for his pain.
There are two plantar nerves in the foot, the medial and the lateral plantar nerves. These nerves extend into the digital nerves, one running between each metatarsal in the foot, the digital nerves being an extension of the plantar nerves. The plantar are the terminal branches of the posterior tibial nerve which hooks behind the inside of the ankle and then branches along the sole of the foot dividing into two, the medial plantar nerve which then further divides on the sole of the foot into the distal cutaneous nerve which supply the undersurface of the toes and the ball of the foot on the medial side.
About three weeks after the incident, on 5 July 1994, the plaintiff saw the orthopaedic surgeon, Dr Gregory Nutting. Dr Nutting's evidence indicates that by 5 July 1994 the plaintiff was complaining of pain and dysesthesia, altered sensation, in the whole of his great toe. Dr Nutting's report of 3 August 1994 records there was tenderness in the great toe and discomfort on attempting to move the toe at that examination, that all tendons appeared in tact although the plaintiff was quite guarded in his activity. Dr Nutting then felt that the plaintiff's foot would remain swollen and sensitive for about another six weeks and that he should not work in his normal capacity for at least these six weeks. He thought the plaintiff could possibly work in a sedentary capacity if his employer provided transport to and from work. Dr Nutting felt the plaintiff had suffered a soft tissue injury. He advised the Board that he thought the plaintiff would not have a permanent disability. When Dr Nutting reviewed him again on 8 August 1994, Dr Nutting was of the opinion that there were “far more personality problems in evidence than there was clinical pathology”. In his report to the Workers' Compensation Board of 20 June 1995, Dr Nutting said that at most the plaintiff had a soft tissue injury to the forefoot and that most bursitis or digital nerve irritation related to the great toe, and felt that the plaintiff's reporting of discomfort was out of keeping with his observed clinical presentation. The plaintiff consulted Dr Conias, the general practitioner on 27 July 1994, when the initial symptoms and signs of the injury, the swelling, bruising and redness had settled. The plaintiff was then complaining of ongoing pain in the toe but not elsewhere. Dr Conias saw the plaintiff on a number of occasions after that, with the plaintiff reporting that most of the pain was concentrated around the large joint that forms the ball of the foot. Dr Conias referred the plaintiff to Dr Alison Reid, a neurologist. She saw the plaintiff on about 1 June 1995. She prescribed Tegretol. Dr Reid's reports indicate that she noted a cervical area about the size of a 50c coin on the sole of the right foot just proximal to the first and second toes which seemed very hypersensitive to touch. She noted there was no muscle wasting or weakness in the lower limbs, no other sensory changes and that reflexes were equal and normal. Her impression was that the plaintiff had suffered a crush injury to one or more of the plantar nerves on the foot resulting in this neuralgic discomfort which was not the type of problem which would show up on tests or which an orthopaedic surgeon could correct.
Meanwhile the plaintiff had been examined by the orthopaedic surgeons, Dr Terence Saxby on 10 March 1995 and Dr Tony Blue, on 7 April 1995. Dr Saxby's evidence at the trial confirmed his diagnosis contained in his report of 10 March 1995 which noted that the plaintiff's gait pattern did not fit with any recognised form of limp, that there was no obvious deformity or swelling, that he had a full range of motion in his ankle, hind foot and fore foot with no area of localised tenderness. In that report Dr Saxby said he would have expected the plaintiff to have folly recovered if he had suffered a soft injury to his foot in June 1994. He did not think the plaintiff needed to use a stick, and suggested he may require a psychiatric assessment. Dr Saxby did not believe the plaintiff had suffered from a crush plantar nerve as he had dropped the washing machine on the dorsal aspect of his foot, “I have seen many crushed feet over the course of my career and I have never seen a plantar nerve crushed by an injury on the dorsal aspect of the foot. I cannot imagine that the mechanism of the injury described is consistent with his diagnosis”.
Dr Blue was quite certain that any injuries sustained by the 14 June incident would have been a soft tissue contusion and that he had long since made a full and complete recovery from this “fairly minor” injury. In his report to the Board of 10 April 1995, Dr Blue said he had no doubt that the plaintiff's inability to return to work had no true organic basis and probably reflected a poor work ethic or psychiatric abnormality. Dr Blue later reviewed the reports of other specialists including the neurologist Dr Alison Reid, the orthopaedic surgeon Dr Terence Saxby, the anaesthetist Dr O'Callaghan of the Royal Brisbane Hospital Pain Clinic, a neuro-physician Dr Bradfield, and a neuro-surgeon Dr Michael Weidmann. Dr Blue agreed with Dr Weidmann and Dr Saxby in that he found it difficult to understand how an injury to the dorsum of the foot could crush plantar nerves. Dr Blue thought the plaintiff's spontaneous cure at the prayer meeting on 2 July 1996 confirmed his belief that the plaintiff's symptoms were of a psychiatric rather than true organic nature. Dr Blue would have expected that had the plaintiff been suffering an injury to a plantar nerve it would have occurred at the time of injury to the foot, as it was not something that would come on gradually and that the only thing that could come on gradually, to link the injury from the incident to the later pain would be a reflex sympathetic dystrophy. Dr Blue said he saw no evidence of that. He said his tests contra-indicated, as a cause of the problem, either reflex sympathetic dystrophy or sesamoiditis, which from the nature of the injury described had been raised as a definite diagnostic possibility. A reflex sympathetic dystrophy is an abnormality that occurs usually in a limb following either a minor or major injury which develops for unknown reasons into quite dramatic functional loss, with swelling, discolouration and a causalgic response to light touch and is usually associated with excessive sweating. Dr Blue concluded that orthopaedically there was no organic basis for the plaintiff's complaints. Dr Blue said that based on the mode of injury, the plaintiff's description of his progress after the injury, the symptoms of which he complained at the time of Dr Blue's examination, his examination and the results of his ancillary investigations, injury to a plantar nerve was unlikely to have occurred. Dr Blue would have expected to find signs of some damage to some bone in the foot or there to have been a laceration to the foot if the plaintiff had damaged his plantar nerve in the incident.
Dr Blue saw the plaintiff about 9 months after the incident. By that time he was with a walking stick. Dr Blue thought his limp was quite bizarre and exaggerated, quite marked on someone who had a simple sore foot. Dr Blue thought that the plaintiff's shoes and the sole of his foot had a normal wear pattern. Dr Blue had no idea how long the plaintiff had worn the shoes other than to say they looked well worn and that there was an established wear pattern. Dr Blue suggested that where a person limps on the outside of his foot for a few weeks, the outside of his shoe or the outside of his sole will be worn, and the inside of the sole of that foot will not. However Dr Blue noted slight wasting of the right calf, but said he did not think this was of much significance in the plaintiff's case. He agreed that a feature of the plaintiff's presentation was that he favoured the right leg significantly, and that this would be consistent with the muscle wasting. Dr Blue did not measure the quadriceps. Dr Blue thought that the other objective signs suggested he was not favouring his right leg.
However in early 1996, the plaintiff went to the Commonwealth Rehabilitation Service in an attempt to get himself back to work, and underwent a programme and physiotherapy there. A physiotherapist, Mark Stokes, saw the plaintiff on 27 March 1996. The plaintiff then told him he could not perform a squat, a lunge, stand on his right leg or fully weight-bear on his right foot. The plaintiff said this was quite significant and even with the walking stick, he would sometimes fall over and experience problems going up and down stairs and his left hip became sore. Mr Stokes noticed muscle wasting of the calf and the quadriceps muscles of the right leg. At the trial Mr Stokes said the wasting was mild and he could not determine objectively or clinically any reason for his disability, except the plaintiff's own accounts of it. The physiotherapist did not measure the wasting. It had been obvious to the naked eye that there was wasting of a mild degree.
The neurologist, Dr John Cameron, had examined the plaintiff on 3 July 1995. In his report of 7 July 1995 to the Board, Dr Cameron said that, “Some of the discomfort suggests a neuritic-type discomfort in the foot, nevertheless the findings are a little odd for an interdigital nerve injury”. Dr Cameron suspected the plaintiff had suffered only soft tissue injury to his foot which should have settled by then and he found it difficult to offer any neurological explanation for his ongoing disability. At the trial, Dr Cameron suggested that the pain and difficulty the plaintiff had said he had experienced until July 1996 (when the plaintiff said he had felt a sensation of burning leaving his foot and that after the prayer meeting he had no further symptoms which had completely resolved), were suggestive of a non-organic disturbance in the first place. Dr Cameron did not undertake any nerve conduction studies on the plaintiff. He explained why he had declined to do medial plantar or digital nerve studies on the foot or the toes. He also explained that patients suffering a significant trauma and pain with the trauma will have a pathological basis for the pain and may then develop psychological disturbance on top of that, but if the psychological reasons are removed, the pain will still persist, although it may not be so severe. He expressed his opinion of the plaintiff as follows:
“When I saw this man he was manifesting quite prominent disabilities. He could hardly walk around. I feel what is really happening here is that the whole lot was probably a large degree of emotional from day one, once the soft tissue trauma settled down and resolved and then this is probably a way out”.
Dr Cameron agreed that it was not unusual in clinical practice for a patient to have some pain which may be very serious in the patient's mind, but when the patient is counselled and told it was not a serious medical complication, that the symptoms would abate quite significantly. Dr Cameron said that shooting pain usually implies a small scar on the nerve, that is a neuroma, and that he had specifically examined the plaintiff to ascertain whether or not he had a neuroma and could not find that. When the plaintiff was questioned and examined about where the neuritic pain had spread, his answers would have suggested that at least four nerves were involved. But Dr Cameron explained that this could not have occurred anatomically unless there had been a problem or an injury in the ankle.
Dr Cameron knew of no explanation based on pathology whereby a nerve fibre will suddenly work correctly after the nerve has been damaged for a long period of time and causing symptoms such as those related by the plaintiff, as there would be no mechanism by which the nerve could suddenly revert back to normal. He said swelling could cause discomfort in the foot but swelling should not cause all those symptoms. He explained that when a person has nerve damage, the symptoms are consistent and they remain in the “same nerve's territory throughout”. In Dr Cameron's opinion, if there had been a variation in symptoms over a period of time, then the question arose whether there was any organic basis to the problem or whether there was a large psychological disturbance “creeping in”.
The neuro-physician, Dr John Bradfield, first examined the plaintiff on 24 July 1995. He told Dr Bradfield that the two washing machines had dropped a distance of about one foot onto the dorsum of his right foot across the base of his toes and that his right foot was pinned for a few seconds. The plaintiff told Dr Bradfield that the pain had continued and worsened since December 1994, involving mainly the medial aspect of the ball of the right foot and describing the pain as severe, shock-like sensations triggered by walking and even occurring at rest, that the pain was aggravated by physiotherapy and as a result of the pain he was forced to sit. Dr Bradfield undertook detailed testing of the plaintiff's central nervous system which revealed in tact cranial nerve function, and testing of motor and cerebellar functions. He found no cautical motor signs and that testing of sensation revealed slightly diminished pin prick and light touch sensation involving the first and second toes of the right foot and hyperaesthesia to right foot adjacent to the base of the first and second toes. Dr Bradfield was of the opinion that the plaintiff had sustained a nerve injury resulting in neuralgic pain over the first and second toes of the right foot as well as the medial aspect of the ball of the right foot. He totally agreed with Dr Reid's report that the plaintiff sustained a crush injury to one of the plantar nerves. In his opinion, the plaintiff was genuinely disabled by his pain which was limiting his everyday pursuit of life as well as employment. He thought the plaintiff's symptoms were a direct effect of the accident on 14 June 1994. In his report to Dr Conias, of 28 February 1996, Dr Bradfield said:
“It is my opinion that as a result of the accident on 14/6/94, that Mike sustained a peripheral nerve injury affecting one of the plantar nerves in his right foot resulting in his present symptom complex. I personally regard his symptomatology as being genuine and would regard his symptom complex as having a neurological basis rather than an orthopaedic basis. ....I still regard him as having peripheral nerve traumatic injury responsible for his symptomatology. .....I would be hopeful on Tryptanol therapy his pain symptomatology may come under better control but only time will tell....”.
Dr Bradfield saw the plaintiff again after 2 July 1996 (the day the plaintiff said that his symptoms had ceased at the prayer meeting). In his report of 4 September 1997 Dr Bradfield said of this:
“My overall opinion concerning Mr Ford is unchanged and when I saw him in consultation, I was of the opinion his pain symptomatology at that time was consistent with trauma to a small cutaneous nerve in the foot. It is surprising that all his symptoms miraculously cleared at a prayer meeting.
It is not unusual with patients who do have chronic pain to develop psychological symptomatology as pain symptoms can be mentally, physically and emotionally draining. That is why pain clinics not only always have pain specialists but psychiatrists to assess a patient.”
At the trial he also explained:
“When a person is in a chronic pain situation....psychological symptoms come into a patient and it is well known that psychological symptomatology and psychological manifestations have a profound effect on a patient's description of pain and the perpetuation of the pain.”
Dr Bradfield suggested that if the plaintiff had suffered trauma to one of the cutaneous nerves of the foot complicated by a certain degree of psychological symptomatology, then he may have gained some psychological benefit as a result of attending the prayer meeting. He thought it was almost impossible to determine the degree to which his original symptomatology was organic and how much was psychological in origin, but nonetheless thought the plaintiff's injury resulted in organic damage to a peripheral cutaneous nerve which had settled with the passage of time. Dr Bradfield also agreed that it would not be possible to prove objectively that a person had sustained injury to a peripheral sensory nerve and that nerve conduction studies would not assist in that area. The pain the plaintiff described to Dr Bradfield in early 1996 was consistent in his opinion with a sensory nerve injury, and although there was some inconsistency in the description of pain given to Dr Nutting and that to Dr Bradfield, taking into account the swelling immediately after the injury, Dr Bradfield said if there was damage to a peripheral nerve, the pain might not occur immediately but could occur in the nerve's healing phase.
Dr Bradfield explained that pain could occur in the healing phase of a nerve as if there was damage to a small branch of a nerve which lost its myelin sheath, the messages from that nerve might be interpreted as pain by the brain, but as the myelin regrew, the nature of the pain would change but not necessarily reduce. He said the pain may worsen if there was fibrous tissue around the nerve and that scarring around the nerve could progressively encroach onto the nerve for up to 12 to 24 months. However Dr Bradfield did not believe the plaintiff had suffered a neuroma. Dr Bradfield thought that the plaintiff's description of the pain was most typical of a peripheral nerve damage-type pain and he made his diagnosis on the basis of the plaintiff's description of his pain and his clinical findings. In Dr Bradfield's view there was still some organic component to the pain when he saw the plaintiff in February 1996, but he said he could not weigh that pain with the emotional component of the pain.
Dr Bradfield thought that an injury to a small cutaneous nerve in the foot was a reasonable hypothesis. However as Dr Saxby dealt with for more foot injuries than Dr Bradfield, Dr Bradfield said he “respected” Dr Saxby's opinion that the washing machine falling onto the foot would be unlikely to cause damage to the plantar nerve or to the peripheral sensory nerves. Dr Bradfield agreed that the burning sensation felt at the prayer meeting and then being left pain free did not add up, but said that this would not destroy any diagnosis of nerve damage as it may well have healed by the time he went to the prayer meeting and by then it may have been perpetuated psychologically. He said it was well known that psychological factors, and not malingering or hysteria could perpetuate pain in a person's mind.
On 10 August 1995 the plaintiff consulted Dr Jim O'Callaghan, an anaesthetist and the Royal Brisbane Hospital Pain Clinic consultant. His major complaint was painful hypersensitivity under the front of his right foot below the first second and third tarsals, associated with electric shock-like pains as well as paraesthesia and loss of sensation between the first and second toes. As the plaintiff's main complaint was the constant dysesthesia under the front of his right foot Dr O'Callaghan prescribed oral Mexiletine. Dr O'Callaghan explained why he thought the pain described by the plaintiff was very typical of nerve damage. In his opinion the plaintiff had some damage to the deep peroneal nerve which supplies the skin between the first and second toes and that he had also suffered some injury to a branch of the medial plantar nerve. When Dr O'Callaghan reviewed him on 14 August 1995 he injected local anaesthetic around the deep peroneal nerve at the ankle and around the posterior tibial nerve also at the ankle which provided complete relief from pain for a couple of hours, but it returned when the local anaesthetic wore off. However the plaintiff told Dr O'Callaghan, when he saw him again on 17 August 1995 that his pain had not returned to the original pre-block level. In his report dated 17 August 1995 Dr O'Callaghan explained that the usual treatment for nerve injury type pain was to temporarily break the pain cycle with local anaesthetic as this temporary interruption to the irritation of the nerve could sometimes result in long term pain relief. As the plaintiff had appeared to have some reduction in pain, Dr O'Callaghan thought he should have further nerve blocks. On 17 August 1995 Dr O'Callaghan performed an intravenous regional leg block in order to achieve a sympathetic nerve block lasting twelve hours.
Dr O'Callaghan thought the plaintiff suffered an injury to the nerves in the front part of his right foot which had resulted in severe chronic pain. He said that there was a psychological component in all types of chronic pain but in the plaintiff's case it was ridiculous to suggest that his presentation was entirely due to psychological causes. On 4 November 1995 Dr O'Callaghan wrote to the Workers' Compensation Board expressing his opinion that the plaintiff suffered an injury to his right foot, that the plaintiff suffered neuropathic pain in the right foot and that his injury was a direct result of the accident on 14 June 1994. He thought that the plaintiff might have a further reduction in pain following nerve blocks, but if they failed to provide long term pain relief, the plaintiff would have to get on with life and live with the pain and disability or, alternatively, have some form of spinal cord stimulator implanted. Although there was some inconsistency in what pain was being experienced as related by the plaintiff to the various practitioners, that fact would not cause Dr O'Callaghan to change his opinion that the plaintiff suffered at least injury to some degree to the plantar nerve which resulted in the pain. However, Dr O'Callaghan would have expected, had he damaged a plantar nerve, that he would have suffered pain symptoms contemporaneously and they would not have developed later.
Dr O'Callaghan could not explain neurologically how the plaintiff could have gone into the prayer meeting with pain and come out without pain, “either he's undergone a miracle or there's been a major psychological component to his pain as well”. Dr O'Callaghan thought it unlikely that a person with pain for years would suddenly get rid of that pain.
Finally, the neurosurgeon, Dr Michael Weidmann, examined the plaintiff on 4 March 1997, after his symptoms had almost totally subsided, although he described some discomfort around a joint of the big toe, but felt he could walk quite normally. In Dr Weidmann's opinion, the plaintiff suffered a crushing injury to the top of his right foot as a result of a work related injury on 14 June 1994, but that it was difficult to account for the disabling symptoms he had reported over the next two years on a neurological basis. Dr Weidmann said:
“Injury to a digital nerve or nerves has been suggested, and this would be a reasonable hypothesis. However, considering the location of these nerves, it is difficult to see how they could be injured by an injury to the dorsum of the foot in the absence of any fractures.
The description of symptoms suffered at that time are suggestive of a traumatic neuroma. Overall I have great difficulty accepting this as the cause of his symptoms. I believe he suffered a soft tissue injury and that any symptoms should have subsided over several weeks. One would not expect significant long term disability after such an injury.
The feet that his symptoms totally subsided at the prayer meeting would also tend to suggest that a neuroma was not present.
Whatever the problem was, he is now cured with virtually no residual disability. He would now be fit to return to his previous employment as a storeman should the need arise”.
Dr Weidmann explained his report to mean that injury to a digital nerve or nerves would be a “possible” hypothesis or scenario, but not the probable one and he did not draw that conclusion. He thought this unlikely and said he would discard that possibility while accepting that other people might consider it as a possibility. He suggested that the plaintiff's complaints of burning and shooting pain were “possibly” suggestive of neuralgic-type pain, and agreed that a peripheral nerve injury could resolve spontaneously as, like most injuries, they “just spontaneously resolve over a period of time....although it would be unusual to see them miraculously disappear”. Dr Weidmann did not make much of the physiotherapist's observation of some mild wasting in the quadriceps and calf, suggesting there was most likely an error in measurement, doubting it had any significance, and thought it could not be put down to any plantar nerve injury. However, the physiotherapist did not measure the wasting but explained at the trial that he had drawn this conclusion from his observations.
Dr Weidmann did not agree with the diagnosis of plantar nerve injury and had never seen anything like this “miracle”. He said if a plantar nerve, medial or lateral, was injured, the injury would occur at the moment of injury and would not develop sometime later. Dr Weidmann said that if the impact was on the toe it may have affected one of the digital nerves, but the impact would have needed to have been much higher up on the foot (ie closer to the ankle) to have affected the plantar nerve.
Apart from the opinions of the specialists as to the non-organic reasons for the on-going pain, no psychological or psychiatric evidence was called by the plaintiff or the defendant. At the end of the day, it is more probable than not that the pain that the plaintiff said he experienced to July 1996 was actually suffered, and that the pain emanated from the injury he sustained, be it only a soft tissue injury, perhaps with some injury to some cutaneous nerve. It also seems more probable than not that the more excruciating and disabling aspects of the pain he later experienced had their root in his pre-existing emotional or psychological state or condition and that the “miracle” he experienced occurred when, for whatever reason, whether it be psychological or otherwise, he had consciously or subconsciously decided to get on with his life.
All in all the plaintiff did not prove on the balance of probabilities that the pain and disability he felt he had experienced throughout the whole of the period from June 1994 to July 1996 was caused by a nerve injury sustained at the warehouse in June 1994. I find that the plaintiff suffered a soft tissue injury to his foot and that it was more probable than not that the pain he suffered in 1994 was exacerbated by some non-organic disturbance resulting in the pain and sensation he described as having suffered in 1995 and 1996. Had the plaintiff also suffered an injury to one or other of the nerves in his foot, then it was more likely than not that this injured nerve had healed well before 1996 and the continuing pain and disability of which he complained was not caused by an injured nerve but by some psychological or emotional factor operating on the pain and suffering directly related to the injury.
quantum assessment
The plaintiff claimed damages for the period between 14 June 1994 and 2 July 1996. I was not persuaded that the plaintiff was a malingerer or that he consciously exaggerated his pain or disability, or that he lied about these matters at the trial or to the doctors and other professionals who examined him. It is more probable than not that there is causal relationship between the injury suffered in the June 1994 incident and the plaintiff's post-accident condition to July 1996. Consequently, having regard to the only other likely explanation proffered by the specialists, I find on the balance of probabilities that the pain and disability resulting from that injury were exacerbated by the plaintiff's pre-existing emotional or psychological condition. What ever caused his pain to change in degree and location I was persuaded that he genuinely suffered that pain and that it emanated in part from the fact that he had suffered considerable pain when he was first injured. Thus the pain and disability suffered from at least March 1995 to July 1996 had its root in the injury sustained on 14 June 1994, whatever it was that was inherent in the plaintiff's emotional or psychological make-up that caused the pain to continue and change in location, type and degree after the soft tissue injury should have settled.
Whether or not the instantaneous cessation of that pain and disability on 2 July 1996 was caused by a “miracle” or, more probably, the result of the plaintiff's emotional or psychological condition responding to his personal circumstances at that time, the defendant's liability extends from 14 June 1994 when he suffered the injury to the time when all pain and disability ceased. Had the plaintiff not sustained the soft tissue injury at the defendant's warehouse it would not have been probable that the plaintiff would have suffered the pain and disability he felt from January 1995 to July 1996, or that he would have incurred the special economic loss or other damages incurred during that period.
But the plaintiff should not be compensated for all pain, suffering and loss suffered to this date. Not all of the plaintiff's temporary misfortune can be reasonably attributed to the consequences of his employer's negligence or breach of statutory duty. On balance it must be implied from all of the evidence that there was a considerable possibility that another minor injury might have resulted in such pain or disability. There was then the risk that the plaintiff would not then have worked and would have incurred other expenses for lengthy periods as a result of some manifestation of his emotional or psychological state. It is then necessary to exclude from calculation of damages for all loss and damage suffered a significant amount to reflect this susceptibility.
Having regard to Malec v. J.C. Hutton (1990) 169 CLR 638 it seems to me that this should be done by discounting the full range of loss and damage suffered, by the rate which I assess as reflecting the likely possibility of the plaintiff suffering those consequences as a result of another such injury or event as well as the likelihood of that other injury or event occurring in the relevant period. Thus the damages to be awarded for pain, suffering and loss of amenities, economic loss, gratuitous care and special damages should be discounted by 30 percent to take this and the other of the vicissitudes of life into account.
In the event that I found the defendant liable for all loss and damage as claimed by the plaintiff, the parties in effect, agreed overall as to the mode, rate and basis of calculation of the various heads of damage. In the context of my finding that these must be reduced overall by 30 percent, the plaintiff proved his loss and damage. Accordingly I assess the damages to be awarded as follows:
Pain, suffering and loss of amenities | $13,000.00 |
Interest at 2% for four years | $1,040.00 |
Past economic loss (from 14.6.94 to 5.8.94 and from 22.12.94 to 31.7.96 (92 weeks) at $300 net per week) | $30,120.00 |
Special damages | $9,270.00 |
Griffiths v Kerkemeyer (66 weeks) at 6 hours at 6 hours per week at $10 per hour | $3,960.00 |
Fox v Wood | $3,606.35 |
Sub-total | $60,996.35 |
70 % of sub-total (i.e. applying the 30 % discount to the sub-total) Less WCB refund | $42,697.44 $36,248.12 |
TOTAL | approx $6,450.00 |
Accordingly, the plaintiff is entitled to judgment in the amount of $6,450.00. Costs should follow the event. Having regard to the date when the plaintiff was “cured”, the dates when this matter was first ready for trial and when trial dates were allocated as well as the dates allocated for trial, it was not unreasonable of the parties to proceed to have the matter heard and determined in this Court. Consequently costs should be assessed on the appropriate District Court scale.