Bilson v Vatsonic Communications Pty Ltd (ACN 093 786 004)
[2024] QDC 42
•5 April 2024
DISTRICT COURT OF QUEENSLAND
CITATION:
Bilson v Vatsonic Communications Pty Ltd (ACN 093 786 004) [2024] QDC 42
PARTIES: LEIGH BILSON
(Plaintiff)
v
VATSONIC COMMUNICATIONS PTY LTD (ACN 093 786 004)
(First Defendant)
AND
TOWNSVILLE CITY COUNCIL
(Second Defendant)FILE NO:
130/21
DIVISION:
District Court of Queensland
PROCEEDING:
Trial
ORIGINATING COURT:
District Court
DELIVERED ON:
5 April 2024
DELIVERED AT:
Townsville
HEARING DATE:
25-28 July 2022
JUDGE:
Coker DCJ
ORDER:
1. Judgement for the Plaintiff against the first Defendant in the sum of $359,689.84.
2. That the first Defendant pay the costs of the Plaintiff and the second Defendant upon the standard basis.
CATCHWORDS:
PERSONAL INJURY – WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – PARTIES LIABLE TO PAY COMPENSATION – LIABILITY FOR INDEMNITY – ASSESSMENT OF DAMAGES – where the plaintiff worked for a company the first Defendant providing services to a local authority the second Defendant – where the Plaintiff suffered injury whilst working for the first Defendant in the provision of those services – where the nature of the injury is accepted – where the cause of injury is in dispute – where liability is in dispute as between the first and second Defendants – where pursuant to an agreement the first Defendant indemnified the second Defendant in respect of any loss arising from the provision of services – whether s 236B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) is in play – where assessment of damages is required
LEGISLATION:
Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 236B, 300, 305B(1)(b), 305B(c), 305B(2), 305D(1)(a)
Law Reform Act 1995 (Qld) ss 6(c), 7
Acts Interpretation Act 1954 (Qld) s 14A
Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) ss 2, 5, 8, 9, 10, 306N(3)
CASES: Czatyko v Edith Cowan University (2005) 79 ALJR 839
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR
16
Meandarra Aerial Spraying Pty Ltd v Gej & MA Geldard
PTY LTD [2013] 1 Qd R 319
Thompson v Bankstown Corporation (1953) 87 CLR 619
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Laybutt v Glover Gibbs Pty Limited t/as Balfours NSW Pty
Ltd [2005] HCA 56
Robinson v Fig Tree Pocket Equestrian Club Inc [2005] QCA
271
James Thane Pty Ltd v Conrad International Hotels Corp
[1999] QCA 516
Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 173
IR 412
State Government Insurance Office v Brisbane Stevedoring
Pty Ltd (1969) 123 CLR 228
Byrne v People Resourcing (Qld) Pty Ltd & Anor [2014] QSC
269
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Sutton v Hunter [2021] QCS 249
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Koven v Hail Creek Coal Pty Ltd [2011] QSC 51COUNSEL: J A Greggery QC and R J Armstrong for the Plaintiff
G W Diehm QC and M Rothery for the first Defendant
D De Jersey QC for the second Defendant
R M Flores for the first Defendant (Third Party Claim)SOLICITORS: Purcell Taylor Lawyers for the Plaintiff
McDonald Leong Lawyers for the first DefendantKing & Company Solicitors for the second Defendant
Introduction
On Monday 28th August 2017, Leigh Bilson, hereinafter referred to as ‘the Plaintiff’, went to work as a vacuum truck operator for his employer, Vatsonic Communications Pty Ltd, hereinafter referred to as ‘the first Defendant’. A short time after he commenced work, that day, the Plaintiff was injured in the course of his employment, suffering a blow to his face from a vacuum hose, rupturing the eyelids and leaving him functionally blind in his left eye.
At the time that the injury was suffered, the Plaintiff was working with employees of the Townsville City Council, hereinafter referred to as the second Defendant. The first Defendant had contracted with the second Defendant to provide services which would effectively clean concrete pits which form part of the Townsville City Council’s storm and waste water system. The concrete pits are described as gross pollutant traps (‘GPTs’).
To complete the contracted task, the first Defendant provided a vacuum truck with accompanying equipment, hoses and the like and an operator, the Plaintiff. The second Defendant provided equipment and staff as well, including a truck, with an inbuilt Palfinger crane and 3 council employees, Colin Phillips, the leading hand and crane rigger , John Jenson, a labourer, and Ed Savage, the crane operator.
The Plaintiff and the second Defendant’s employees were not instructed in relation to their working together, or of any system put in place. Rather, the Plaintiff and the second Defendant’s employees were left to determine their own system of work, though there does seem to have been some prior occasions where such tasks were undertaken and systems of work put in place, by the employees.
According to the Plaintiff, he had performed this task, the draining of the GPTs, on previous occasions, including at the GPT where the incident occurred, for the whole of the preceding week. His evidence was that a system was in place in the preceding week, that the repetitive task of draining water from the GPT, until the tank on his truck was full and then emptied into an adjoining garden area, had been done 8 to 10 times per day or the preceding 5 days. In other words, 40 to 50 occasions without issue.
However, on the morning of the 28th August 2017, on the first occasion that the process was resumed after the weekend break, the system which had been formulated between the Plaintiff and the second Defendant’ employees was, he says, not followed and, as a result of that failure to follow the agreed system, the Plaintiff says he suffered his injuries.
Obviously, the evidence of the Plaintiff and the second Defendant’s employees is significant in the determination of this matter, but, also as has been identified by all parties, a major area of contention is the source of stored energy which it is suggested caused the hose, being manipulated from the outlet valve to the inlet valve of the vacuum truck, to move violently out of the Plaintiffs hand and to move upwards in a circular fashion, striking the Plaintiff on the nose and, most significantly, to the left eye. As such, there is also a need to consider the expert evidence called for the Plaintiff and the Second Defendant.
The Evidence as to the Incident
The preliminary evidence of the Plaintiff is summarized in the outline of submissions provided by the first Defendant in paragraphs 10 – 15:
The Plaintiff
10. The Plaintiff commenced employment with the First Defendant on 5 June 2016. He was shown how to operate the hydro vac truck involved in the incident on of his first day of employment with the First Defendant. He operated that same truck through until the time of the incident on 28 August 2017.
11. The tank of the vacuum truck had an inlet and an outlet valve at its rear. The outlet valve is situated on the right and the inlet situated on the left (as you look at the rear of the truck). The vacuum hose was 11.5 m long.
12. The Plaintiff had manufactured a grey section of hose to deal with an issue which arose whilst the hose was under pressure from the vacuum sucking function in emptying the GPT. However, the Plaintiff confirmed that section had remained connected to the inlet valve in the time of its use and he would disconnect the "bumblebee" hose from it to connect the bumblebee hose to the outlet valve.
13. Accordingly, the grey section was not involved in the section of hose dealt with at the time of the incident and has no relevance in this claim.
14. The incident occurred on Monday 28 August 2017. The Plaintiff was involved in the task of cleaning a gross pollutant trap (“GPT”) for the Second Defendant. The Plaintiff had been working on the task of cleaning that GPT for about 1 week prior to the incident.
15. Four or five months prior to the incident, the Plaintiff had also been involved in cleaning out storm water drains and pits for the Second Defendant in his employment with the First Defendant for about a month period. He worked with Colin Phillips and Ed Savage on that job.
The Plaintiff gave oral evidence thereafter on a wide ranging number of matters, including the system of work used and how it came about, what all parties present on the day were required to do and did do, as well as his observations, both prior to and subsequent to the incident.
In respect of the system of work, the Plaintiff described his initial interaction with the second Defendant’s employees as follows:
MR BILSON:…to that week I-I did probably a month or - or more with them, cleaning out stormwater pits, drains all over Townsville.MR GREGGERY: And were you given any direction by your employer about how that work was to be conducted?
MR BILSON: We used to sign their- their paperwork, and they would pretty much tell you how - how to go about it.
MR GREGGERY: Who's they?
MR BILSON
: The council employees.
MR GREGGERY: All right. I was asking you about Vatsonic and whether they gave you any - - -?
MR BILSON:---Sorry.
MR GREGGERY: - - - direction, but- yes?
MR BILSON:---I-I would just get the job sheet and just go for that job, and then once you' re there, you worked out what the job is, how to go about it.
MR GREGGERY: And who did you meet- or how many employees of the council did you meet on that job?
MR BILSON:---Three.
MR GREGGERY: Okay. And you said once you got there you worked out how to do it?-
MR BILSON:--Yeah.
MR GREGGERY: And do you recall the process on that occasion?
MR BILSON:---Different pits - some had cages that they used their crane to lift out. Some just had lifts that they lifted. I used the vac truck and did all that myself, and they just used what they needed to open pits, pull grates out and- to do the job.
MR GREGGERY: And do you recall whether a crane was used or not on those jobs?
MR BILSON:---One particular job there I rocked up on, that was a deep drain, and I went to put the hose in there and they said, "The previous truck, we just hold the hose in the sling on the crane." So I said all right. Like, they'd already come up with that idea of how they'd been doing it previously, so that’s what we did.
MR GREGGERY: And when you say a deep pit, how many metres are you describing?
MR BILSON:---The deep ones, we're only working three and a-half to 4.2 metres deep.
MR GREGGERY: The ones where you weren't using a cane and you say you were operating the hose yourself, what - - -?
MR BILSON:-----Yeah.
MR GREGGERY:---were the depth of those pits?
MR BILSON:---Some of them were only a metre - metre/metre and a-half deep - --
MR GREGGERY: Right?-
MR BILSON:-With concrete floors on them.
The Plaintiff in that exchange mentioned the varying depths of the GPTs and noted that the one he was dealing with at the time was a 4.2 metre drop into a big pit under metal covers. The Plaintiff later described the job and each person’s role as follows:
MR GREGGERY: Okay. And what was the nature of the job that you were involved in at that pit?
MR BILSON:---I was in – I had to vac the water out. Once we vacced all the water out, got down to the silt, it was then extract the silt out of the pit.
MR GREGGERY: Okay. And what equipment did you have for the task?
MR BILSON:---There was the vac truck, a hose and a gurney, a four-metre gurney extension to reach the bottom.
MR GREGGERY: And what role does the extended gurney play in the job?
MR BILSON:---At the bottom the silt can be compacted and leaves and sticks - it just breaks it up so it's easier to slurry it up to be vacced up by the hose.
MR GREGGERY: Right. So the week before- let's go back to when you started on the job---?
MR BILSON:---Yeah.
MR GREGGERY:- - -and you were working on that pit to get the water out. What was the process that was involved?
MR BILSON:---I would turn up. They would have their truck set up where they wanted it for the crane. I'd run my hose out, connect it up and put the other end over for them to hook up to their crane. They would lift it up and lower it down a bit, then I would go and start the truck and engage the vac side of it, then come back to the pit and they'd lower it down while I was there to guide the hose into the pit. Once the wat - vac truck was full of water, I would then return to the truck, disengage the PTO, then come back. We- they'd lift it up, slewed the crane around to the right, lower it down to the ground so the sling could be disconnected from the crane, hook. Sometimes one, most times two of us would drag the hose out into the open. Once that was done, I'd return to the truck, take the hose off the inlet and put it on to the outlet, open the valve. Then I'd return to the truck, engaged the PTO again to lift the tank up to decanter the water better, then I would return to the truck and shut the
truck down, as that took about five minutes or so to decanter the water and then hook it all back up again.MR GREGGERY: And when you say "decanter the water", you mean empty the tank ---?
MR BILSON:---Release it out of the tank, yeah.
MR GREGGERY:--- through the hose?--- Yep.
The Plaintiff gave evidence specifically in relation to the discussions he had with the second Defendant’s employees regarding the movement of the hose connected to the vacuum truck. He had indicated that the unattached end of the hose, when he moved to the other end from the outlet to the inlet valve, was ‘out in the open where the water was being let – out’. The Plaintiff specifically confirmed his discussions with the second Defendant’s employees and what was expected, when he gave this evidence:
MR GREGGERY: All right. Now, was that something that was discussed between you and the workers ---?
MR BILSON:---Yeah.
MR GREGGERY: - - -from the council?
MR BILSON:---It was, yeah.
MR GREGGERY: Do you recall when you discussed that?
MR BILSON:---When - the very first time we did it, that no one was to be near the hose when it was being changed over.
MR GREGGERY: Was there any discussion about who operated the crane?
MR BILSON:---No. They - Colin and Ed took it in turns operating the crane at different times.
The entire process leading to the incident is conveniently and I think accurately summarized in the first Defendant’s outline at paragraph 20(I)-(XIII) as follows:
20.The Plaintiff described the system of work involving the use of the crane to be:
i.The Plaintiff would arrive at the drain or pit that the Second Defendant had directed him to through his employer;
ii.He would “run [the] hose out, connect it up and put the other end over for them to hook up to their crane”;
iii.The Second Defendant workers would lift the hose up with the crane and lower it down a bit;
iv.The Plaintiff would go and start the truck and engage the vacuum function;
v.He would then return to the pit and the Second Defendant workers would use the crane to lower the hose down while the Plaintiff was there to guide the hose into the pit;
vi.Once the vac truck was full of water, the Plaintiff would then return to the truck, disengage the PTO (vacuum function), then return to the pit;
vii.Ed or Colin would then lift the hose up with the crane, slew the crane around to the right, lower it down to the ground so the sling could be disconnected from the crane hook.
viii.“Sometimes one, most times two of us would [then] drag the hose out into the open.”
ix.The Plaintiff would then return to the truck, take the hose off the inlet and put it on to the outlet, open the valve.
x.He'd then return to the truck, engage the PTO again to lift the tank up to decanter the water;
xi.He would the shut the truck down, as it took about five minutes or so to decant the water;
xii.Once the tank on the Hydro Vac Truck was empty, and the Plaintiff had lowered the tank down, he would change the hose over at the back of the Hydro Vac Truck from the “outlet” valve to the “inlet” valve;
xiii.That would be done when the hose was still out in the location where it had been taken to drain the tank.
The Plaintiff was at pains to confirm that he had instructed the second Defendant’s employees not to touch or move the hose, after discharge, until he had disconnected the hose from the outlet valve and reconnected it to the inlet valve. More particularly, he confirmed that this procedure had been followed on each of the 40 to 50 occasions the process had been gone through on the previous week.
The Plaintiff was adamant that this procedure was discussed previously and that he had said, ‘…no one was to be near the hose when it is being changed over’. The Plaintiff went on to confirm that the hoses, and in fact the operation of the vacuum truck, was his job. As he said, ‘…I’m in charge of that truck and that hose and I don’t want people playing with it while I’m doing my job’. He went on to explain his reasoning as ‘…you do your jobs, I’ll do mine’.
The Plaintiff confirmed that his had occurred during the preceding week and that there had been no occasion during that week, or in fact anytime previously, when there had been any violent or unexpected movement in the hose. This is despite the fact that, as he acknowledged, there could be other issues, such as the connection between the hose and the tank on the vacuum being ‘sticky’. He explained that sometimes there may be a grain of sand that make it a little bit more sticky.
He noted consistency in this happening, especially when the hose was, as he requested, ‘laid out flat’. He indicated in Cross-examination by Counsel for the second Defendant the following:
MR DE JERSEY: But you didn't really know what to expect, did you, when you disconnected the yellow hose from either of the inlet or the outlet valves; correct?
MR BILSON: ---I- yes.
MR DE JERSEY: You did know?
MR BILSON:---Yes.
MR DE JERSEY: And how did you know what to expect on any particular occasion when you disconnected the yellow hose?
MR BILSON:---Because usually, the hose is laid out flat.
MR DE JERSEY: Well, no, I'm asking you to focus on the particular connection between the yellow hose and the inlet or the outlet of the truck?
MR BILSON:---Yeah.
MR DE JERSEY: And I'm asking you to assume that the hose is laid flat and nobody's touched it?
MR BILSON:--- Well, then, yes, it was pretty much the same every time.
MR DE JERSEY: Be pretty much the same every time?
MR BILSON:---Yep.
MR DE JERSEY: You didn't say that it was different a moment ago, sometimes easy to sometimes hard to remove?
MR BILSON:---The connection.
MR DE JERSEY: Yeah. You said that but for this particular occasion, in your experience, Mr Savage and the other two gentlemen never touched the hose between when the tank was drained and when the hose was moved back to the GPT other than on this particular occasion. That never happened, you said?---That they never touched it? Yes?
MR BILSON:---Incorrect.
MR DE JERSEY: No, no, no. I'm talking about until the incident, to your knowledge, they' d never touched the hose?
MR BILSON:---Are you meaning just that one time or ---
MR DE JERSEY: Yes?
MR BILSON:------ for the rest of the time?
MR DE JERSEY: Correct?--- For that one time. Yes?
MR BILSON:--No, and to my knowledge they hadn't touched it.
MR DE JERSEY: They had not, yes. So all of the times, the 50 odd times that it happened prior to them touching it--?
MR BILSON:--Yeah.
MR DE JERSEY:- - - are you with me, you'd experienced the connection sometimes being easy to remove and sometimes being difficult to remove, correct?
MR BILSON:--- NO.
MR DE JERSEY: And it's the case, isn't it, that when it was difficult to remove sometimes it would come off in unpredictable ways, correct?
HIS HONOUR: I thought he said no.
MR DIEHM: I object. He said no.
HIS HONOUR: Yes. I think everybody's of the same mind. I think the answer was
no.MR DE JERSEY: Thank you, your Honour. Now, can I ask you, in relation to the – you said that there was a point in time, I think early in the job, when you told Mr Savage that he wasn't to touch the hose, correct?
MR BILSON:---Correct.
MR DE JERSEY: And was that because you' d been told that by somebody else at Vatsonic?
MR BILSON:---No. That was my rule all the time.
MR DE JERSEY: Right. And why was that your rule? What did you know that motivated you to tell Mr Savage that he wasn't to touch the hose?
MR BILSON:---Because I'm in charge of that truck and that hose and I don't want people playing with it while I'm doing my job.
MR DE JERSEY: And did you fear that something might happen if somebody did touch it?
MR BILSON:---I don't know.
MR DE JERSEY: Well, you plainly thought that this was something that warranted bringing up with Mr Savage?
MR BILSON:---That was always my thing to everyone, don't touch my hoses, don't touch the gurney, it's my job. You do your job. I'll do my job.
MR DE JERSEY: Can I suggest to you that you told him not to touch it because you’d previously had these experiences where the hose operated unexpectedly - - -?
MR BILSON:---Incorrect.
MR DE JERSEY: - - - when you connected and disconnected it?
MR BILSON:---Incorrect.
The Plaintiff was adamant that there was, at the time of the incident, a system of work in place, that it reflected some of what he had been trained to do by the first Defendant, though refined by him, and, most importantly, reflected what had been discussed and, at least by acquiescence, agreed between he and the employees of the second Defendant.
For completeness, it should be noted that this agreed system of work also involved tasks specifically attributed to the second Defendant’s employees. It was they who attached a sling to the hose using a knot that, depending upon the way it was pulled, choked the hose, so that it could not slip or pull through the sling knot, with the other end of the sling hooked to the crane. In the Plaintiff’s evidence, he confirmed that he did not operate the crane, but, that that was done by ‘…Colin and Ed…’, who ‘…took it in turns operating the crane at different times’.
It was clear, however, from the Plaintiff’s evidence that these tasks, performed by the second Defendant’s employees, were not to occur whilst any transition of the hose was taking place, and that that practice had been adhered to in the previous week, as well as on earlier occasions.
On the 28th August 2018, the Plaintiff says that this agreed procedure was not followed. After the pumping from the GPT had occurred, and the decanting of the vacuum truck had been completed, the Plaintiff lowered the tank, and then proceeded to change the hose from the outlet to the inlet valve. He gave it, as he described, ‘a little wiggle’ and it then flung out of his hand, moving to his right, but, then came back around, ‘like 180 in the air’ such that the coupling at the end of the hose hit him on the bridge of his nose as well as striking him in the eye.
The Plaintiff’s evidence as to the removal of the hose from the outlet valve was that, apart from a ‘little wiggle’, there was little force required to remove the hose and that the procedure to do so, pulling the hose downwards and parallel with the outlet valve was the same as was used on previous occasions.
The Plaintiff went on to describe the situation after the hose ‘flung out’ of his hand and did ‘a 180 in the air’. In Evidence in Chief, the following was said:
MR GREGGERY: When you described that if fling out of your hand to the right, you moved your right hand in a semi-circular motion. Is that - - -?
MR BILSON: Yeah, it sort of went around like that…did a – like, a 180 in the air and come down on my – on my no – the bridge of my nose and eye.
MR GREGGERY: What were you wearing at the time?
MR BILSON:---I had safety glasses on. I noticed when it was hitting the bridge they were handing down here…when I went to feel for them.
MR GREGGERY: Was that before or after - - -?
MR BILSON:---That was after I had the impact.
MR GREGGERY: Okay. Well, after the impact of the end of the nodes with your face, what did you do?
MR BILSON:---Following my eye, Ed come running over and then realised that - that there was something wrong or that I was hurt, and then he told Colin. They got me some gauze to put over my eye to stop the bleeding. Then I went and sat down on that second pit that you can see in the photo - sat on there.
MR GREGGERY: Yes?
MR BILSON:---While I was sitting there, I rang my boss to let him know, and then I rang my wife to let her know. And John was sitting there with me. He– and then -I don't know where the other two were. And then when I was sitting there, I happened to look up and the hose was hanging three and a-half, four metres in the air, with the end of the hose dangling over the pit, which I then went off at Colin and Ed. Like, “Why is the hose in the air?” And that was, sort of, it. Then I sat there waiting for the ambulance to arrive.
MR GREGGERY: Do you remember the words that you spoke when you went off?
MR BILSON:--- There were probably not the kindest words, but that - yeah. Like, pretty much like, “The frigging hose is in the air. What – what are you doing,” like- yeah.
MR GREGGERY: You were taken to the hospital?
MR BILSON:---Yes.
MR GREGGERY: By ambulance?
MR BILSON:---By ambulance, yes.
The Plaintiff confirmed in Cross-examination that he was angry as a result of the hose being moved back to the pit and elevated contrary to the discussions that had been had between he and the employees of the second Defendant. The Plaintiff said:
MR DIEHM: And you were angry about that because you understood before then that, whilst you were engaged or about to be engaged in this process of disconnecting the hose from the outlet and putting it back onto the inlet valve, that the hose should be flat on the ground and straight?
MR BILSON:--- Correct.
MR DIEHM: And so from what you saw, after you'd suffered your eye injury, you could see that that hadn't happened?
MR BILSON:--- Correct.
MR DIEHM: Now, I suggest to you that you knew those two things should be the case because that's what you had understood from your training by Vatsonic as to how the hose should be positioned when you were moving it from one valve to another?
MR BILSON:---Correct.
MR DIEHM: But on top of that, it was also - what you had come to understand was what
everybody expected to happen on that job site?MR BILSON:--- That's right.
MR DIEHM: Because apart from the training that you had got from Vatsonic in general terms about the use of this hydro vac truck, it's right to say, isn't it, that when you first came to work with the council, the Townsville City Council, doing this work with these gross pollutant traps, that there was discussion between you and the employees of the council that you were going to work with in which they told you about what the plan was about how this work was to be done?
MR BILSON:---Correct.
The Plaintiff’s evidence was clear on this matter, as well as other matters surrounding the incident that morning. The Plaintiff was clear, believable and precise in so far as the previous practices and as to the change that occurred prior to him sustaining this injury.
I found the Plaintiff to be a reliable and accurate historian, and I accept his evidence with respect to his prior experience with the hose and couplings, as well as, most specifically, the fact that in his past work on the truck, he had not had any experience of the hose behaving violently, as it did on the morning of the incident.
Additionally, the Plaintiff provided evidence as to his various recreational activities and past employment history. He was not evasive in any way in providing his evidence, and, in particular, did not downplay or minimize his continued participation in various activities. It again reflected his honesty and reliability as a witness of both accuracy and truth.
Also called for the Plaintiff was his wife, Melissa Bilson. She gave evidence, generally corroborative of the Plaintiff’s described physical and psychological situation. This was detailed in a statement that was prepared and signed on Thursday 21st July 2022, and admitted as Exhibit 16. She was not cross-examined in respect of this statement and I accept her evidence entirely, but, most specifically, in respect of post-accident observations she makes as to the Plaintiff’s physical and psychological wellbeing.
The Plaintiff also called Phillip Tolley, an underground mining superintendent. He was called primarily to address issues regarding any limitations and loss of opportunities that the Plaintiff may have suffered as a result of his injuries. The Plaintiff had previously worked in a mining environment and an approach was made by Mr Tolley to the Plaintiff regarding further work. When he was advised about the Plaintiff only having sight in his right eye, he indicated that work in the mines ‘could be tricky’. Mr Tolley then indicated that his conversation did not go any further.
Mr Tolley also provided evidence as to various pay scales and, at least roughly, was able to provide some indication of the pay scale for a ‘truck driver leading hand, which equated to the role that the Plaintiff had been approached about. Mr Tolley’s evidence was of limited compass, but, did provide some context in relation to this matter.
Additional witnesses were also called for the Plaintiff, but, their evidence generally related to the other matters, including medical, occupational therapy and engineering issues. I shall come back to those shortly, but, first I think it appropriate to address the evidence of the others present at the work site at the time of the accident. Those included Edward Savage, and also statements made under the hand of Colin Phillips, another worker present at the time of the accident, but, ill and unable to attend the court.
I turn firstly then to the statements of Mr Phillips. The first is Exhibit 31, a statement given to Workcover on Friday 1st September 2017, and the second statement is a statement give to the solicitor for the second Defendant on Tuesday 7th June 2022 and signed by Mr Phillips, in the presence of Mr Savage, the other witness for the second Defendant on Monday 13th June 2022. I note the statement purports to be signed in 2018. That is clearly a typographical error.
The two statements by Mr Phillips are different in many respects and give rise to considerable uncertainty as to their reliability and accuracy. The first statement is helpful in some respects, however, being more immediate in time, given only a few days after the incident. It notes, particularly, that Mr Phillips was ‘not completely sure how the vacuum hose got from it’s (sic) discharge point back into the pit’.
What that confirms is that, at the time of the incident, the hose was back at the pit and not, as had been discussed between the Plaintiff and the second Defendant’s employees, still at the discharge point pending transfer from the outlet to the inlet valve.
Mr Phillips also indicates that the vacuum hose was on the ground and was not raised in the air, though I struggle a little with that description, noting that Mr Phillips also indicates that ‘the sling was attached to the hose and it was attached to the crane hook – the hose was in the pit just above the liquid level’.
In the second statement, taken nearly 4 years later, Mr Phillips says the following at paragraphs 40 to 43:
40.To my recollection the vac truck had been filled with a load of decanted water.
Eddie lifted the pipe up out of the GPT using the crane and Leigh went to the
back of the vac truck and shut everything down. The pipe had been laid on the
ground beside the GPT and the sling detached from the crane. The pipe was
then dragged over to a nearby discharge point and the pipe then removed
from the vacuum attachment on the back of the vac truck to the gravity feed
attachment. The tank is raised and the vac tank emptied using the gravity
feed. All work to do with the vac truck was performed by Leigh. None of the
Council staff were ever involved in connecting or disconnecting the pipe on the vac truck or with any operating of the vac truck.41.I don't know who moved the pipe back over to beside the GPT ready to be
secured to the crane. Leigh normally stays at the back of the vac truck so that
he can disconnect the pipe from the gravity feed and reattach it to the vacuum.
This process is done after the pipe is dragged back over to beside the GPT
and before the crane is used to lift the other end and lower it back down into
the GPT.42.There is no rush to perform our task and we operate on a slow sequence so
that no-one rushes and the job is completed as safely as possible.43.The end of the pipe is not lowered down to water level in the GPT until the
pipe is removed from the gravity feed and reattached to the vacuum end of the
vac truck by Leigh.Further, at paragraphs 50 and 51, Mr Phillips notes the following:
50.I recall seeing the crane up and over the top of the GPT. Whenever the crane
is not in use it is raised so that it is up and out of the way. It was not connected
to the sling which was attached to the pipe.51.The pipe was laying on the ground with the end that goes into the GPT laying
near the GPT and the other end which connects to the vac truck laying on the
ground near the vac truck.These statements do not accord with the more contemporaneous record of the 1st September 2017, and with Mr Phillips so unwell that he could not be called for Cross-examination, I am not inclined to accept the second statement as having any real weight. Rather, I am of the view that the first statement in many ways is corroborative of the Plaintiff’s evidence.
Also called for the second Defendant was Edward Albert Savage. Mr Savage was, in my assessment, a most unreliable witness. He gave varying versions of what he saw at the time of the incident and I gained, unfortunately, an impression that his evidence had developed over time to accord with a more positive version, supportive of the position of the second Defendant.
This is clear from a number of inconsistencies in his evidence over time. His evidence developed and changed between his statements of Wednesday 6th September 2017 and Wednesday 13th June 2018, and his oral testimony from the trial. In his statement of Wednesday 6th September 2017, Mr Savage said ‘when the incident occurred to Leigh the vacuum hose was hooked back onto the crane hook...the crane hook was raised by crane about 1.5 to 2 metres off the ground. I did not see who put the hose back on the hook and into the pit’.
This accords with the evidence of the Plaintiff and Mr Phillips in respect of the hose being moved back to the pit at the time of the incident. It also conflicts with his oral testimony to the effect that the crane was down at the time of the incident and that the hose was still at the garden area where it was drained.
Mr Savage’s evidence was inconsistent even during his testimony, and when challenged about such inconsistencies and the differences between that evidence and his previous statements, he became defensive and argumentative. His denials in relation to even signing the statements or acknowledging that it was his signature did not ring true and gave real concern as to the reliability or even truthfulness of his evidence.
Except where the evidence of Mr Savage accords with that evidence of the Plaintiff, which I accept, I give no weight to his evidence and find that it is entirely unreliable.
Insofar as the evidence of those present at the time of the incident is concerned, I find the Plaintiff’s evidence and recall entirely reliable, and other than where there is agreement as to general matters of evidence, I am not assisted by the evidence of the second Defendant’s employees.
The Evidence as to the movement of the hose
I shall, in due course, address the Plaintiff’s injuries and medical evidence and consequences of those injuries, but, first, it is necessary to address ‘the elephant in the room’, being the cause of the incident. It does appear that there is agreement that somehow there was stored energy in the inlet/outlet hose, but, the source of that energy is in dispute. Two experts were called, Bill Contoyannis, forensic engineer for the Plaintiff, and Roger John Kahler, engineering consultant for the Defence.
Both Mr Contoyannis and Mr Kahler have provided initial and supplementary reports and also gave evidence during the trial. These reports and oral evidence address the primary issues, the source of the energy and the methods by which any risk posed by stored energy might be removed, and also addressed the significant question as to whether the release of energy, when the Plaintiff uncoupled the hose, included torsional strain, and, if torsional strain was included, how it was introduced.
Both the Plaintiff and the first Defendant submit that the evidence of Mr Contoyannis should be preferred to that of Mr Kahler. The outline provided on behalf of the first Defendant provides a helpful summary of the evidence/opinion of Mr Contoyannis at paragraphs 59 to 66, where the following is said:
59.Mr Contoyannis’ opinion as to the cause of the source of the stored energy might be summarised as follows:
a.The hose had been repositioned from the garden back to the pit, slung from the crane and then lifted up;
b.Torsional energy accrued in the hose in moving it from the garden bed back to the pit;
c.Stored energy was trapped between the outlet connection and the point where the hose was slung on the crane;
d.Between the point in the time where the hose was being dragged and being slung on the crane, the torsional energy was stored because one end was fixed to the truck and the other fixed by being held (i.e. to drag it/sling it);
e.The weight of the hose hanging down either side of where the sling was attached, once the hose was lifted by the crane, contributed to the trapping of the energy in the hose;
f.Bending in the hose, between the point at which it is affixed to the crane and the truck end, caused by the lifting of the crane, will significantly increase the stored energy in the hose;
g.When the hose was disconnected from the outlet valve but fixed at the other end (being attached to the sling and hung on the crane), the energy was released at the outlet end, causing the hose to spin and release from the Plaintiff’s grip; and
h.The stored energy arose both because of the “memory” of the hose to curl from the manner in which it was stored on the truck when not in use, and due to torsion of the hose from it twisting when dragged from the garden bed and being lifted by the sling and crane.
60.From the experiments conducted by Mr Contoyannis and documented in his Supplementary Report, he was of the opinion that “movements of the hose have a consequential effect at the point of connection to the truck, causing the hose to turn, displace laterally, or a combination of the two.”
61.However, he also noted that “connecting the hose on the outlet after positioning results in almost no strain energy at the outlet.” This is consistent with the Plaintiff's evidence noted above that he had never experienced any unexpected or violent movement in the hose; that he always knew what to expect from the hose when disconnecting the hose, “because usually. the hose is laid out flat.”
62.He confirmed under cross-examination the purpose of his testing:
Part of the difficulty with taking these things too far, I suggest, Mr Contoyannis, is, as you frankly said on at least one occasion in your written reports, that it is actually impossible to know that you are replicating the actual situation that applied on the ground on the day in question?---Yes, that's correct.
But what you can do, as you 've sought to do, is to bring to bear an understanding of the physics and how the movement of the hose in various different ways and in various different circumstances can create stored energy of the kind that apparently was present when Mr Bilson had the misfortune to suffer his injury. Would that be right?---That's correct, yes.
63.Regarding the control methods, relevant to the First Defendant, which might be introduced to deal with the risk of harm, Mr Contoyannis, confirmed under cross examination:
a.Regarding the recommendation that a risk assessment by the First Defendant which communicated what the correct process for performing this task was, he confirmed the audit is intended to lead to actions that manage the risk, rather than being the actual action that manages the risk and the purpose is to share communication so that workers know the steps and procedures to follow;
b.Further to that, that what he would expect to see (so the steps to be followed) would be that nobody was to touch the hose without the say-so of the driver – the operator of the vac truck- and that the hose was to be laid out flat and straight before it was to be disconnected from the valve;
c.Regarding having “whip-checks”, being small cable ties on the hoses, connected to the truck, to prevent unintended movement of the hose when coming off either of the valves, he ultimately confirmed he “was not sure if that’s something that can be done. That would require a fair bit of inspection directly of the particular truck we 're talking about”. In any event, it was a risk reduction method which was fairly low in the hierarchy of control;
d.In relation to placing the camlock coupling on the outlet/inlet hardware (i.e. swapping the male and female connections), he agreed that there would still be a material risk of causing physical injury to the operators;
e.He further agreed that using a small step-ladder to move the hose so the task is performed at waist height would be to introduce a further risk of injury, namely falling off the ladder if the hose moved;
f.In relation to the final risk reduction measure of wearing safety glasses or a face shield when disconnecting the hose, he confirmed that was not directed at protection from the relevant risk of harm and if the Plaintiff was wearing safety glasses at the time of the incident (as he was), whilst he would still prefer he wear them, it did not protect against the risk of harm.
64.Mr Contoyannis, under cross-examination, talking of the materials referred to in his first report of 17 June 2022, confirmed:
a.The Mines Safety Bulletin and Safe Work Australia “Use of Restraining Devices on Hoses” guide was not the sort of document that he thought an employer, directing their mind to the risk that we are concerned with here, would be having recourse to in terms of identifying risks and coming up with solutions to manage the risk;
b.The Guide to Machinery & Equipment Safety, whilst it refers to identifying sources of stored energy, provides no assistance in relation to dealing with stored energy relevant to this case. The fact that a system of work was in place, had been followed and no sign of stored energy had been detected meant this Guide would not have provided guidance to the employer in the case.
c.The Safe Work Australia, The Guide For Managing Risks From High Pressure Water Jetting was a document to look at generally for tasks involving powered or energised hoses but that was not the case with the task we are concerned with in the present case.
65.Mr Contoyannis confirmed he provided his opinions in this matter based upon the understanding the Plaintiff had performed this task on many occasions and he had no unexpected movement.
66.He confirmed the two things different on the occasion of the incident which stood to make a material and significant difference was the hose being moved back to the pit and also being slung and lifted by the crane prior to the hose being disconnected.
Importantly, the evidence/opinion of Mr Contoyannis accords with the evidence of the Plaintiff, which I accept. Mr Kahler accepted that if torsional strain energy was introduced between the two fixed points of the truck and the sling, it would be released when the hose was uncoupled. Notwithstanding this acknowledgement, however, Mr Kahler in his reports, but, more so in his oral evidence, was clearly of the opinion, especially after conducting further enquiry, that whilst torsional energy was possible, it was not the situation in this incident. In Mr Kahler’s evidence, he said:
MR GREGGERY: Mr Kahler, Mr Bilson has given evidence about the manner in which the hose moved as he uncoupled it, leading to it striking him on the nose and in – near his left eye. I’ll just describe that to you. At page - day 1, page 35, line 29. He said this - sorry, 36, “I went to uncouple it. It was a little bit tight. I gave it a tiny little wiggle, which the couplings are both aluminium and alloy, and at times, they bind. I gave it a little wiggle and it flung out of my hand around to the right. I sort of pulled back and it struck me on the bridge of the nose and got hit this side of my eye.” Question: “When you describe that it flung out of your hand to your right, you moved your right hand in a semi-circular motion. Is that - -” Answer: “Yeah, it sort of went around like that, did a 180 in the air and came down on my – on my - the bridge of my nose and eye”. So – and the hand motion which he described was a movement that went around like that, consistent with his description of a 180 degree. Now, does that movement upon an uncoupling, is it consistent with the release of stored energy within the pipe?
MR KAHLER:---Yes, most definitely.
MR GREGGERY: And is it consistent with at least the release of torsional energy – that's twisting energy contained - - -?---The way you
MR KAHLER:- - - --- in the pipe?
MR GREGGERY:---The way you describe it, it's consistent with torsional energy.
MR KAHLER: Yes?---But I have studied this incident in fine detail, and I do not consider there was any significant torsional energy present, so all I can go to – when I consider that hypothesis of torsional energy, Mr Bilson's recollection is the supporting observation for it. But I think there is also a lot of information on the rejecting side. I also think these situations unfold very quickly. And as people try to recollect what happens, my career has been very much about dealing with the evidence that I see and trying to reconcile what people are telling me. So yes, the description you give is consistent with torsional energy, but I just don't think the circumstances of the work on that day were consistent with torsional energy. By torsional energy, I mean an induced twist.
MR GREGGERY: Yes?---
MR KAHLER:-- - into the hose.
Mr Kahler’s assessment, however, was, I thought, dismissive of the evidence of the Plaintiff, and failed to appreciate and consider that evidence in his assessment. As put on the part of the Plaintiff and I accept:
72.The evidence of Mr Contoyannis should be preferred to that of Mr Kahler on the two causal questions for the following reasons.
…
(e)Mr Kahler's alternative hypothesis is logically unattractive as:
(i) Mr Bilson was an experienced hose operator and had
repetitively connected and disconnected the hose while
working for Vatsonic including between 40 and 50 times in the
preceding week;(ii) Mr Bilson described the use of force to wriggle the hose free
from the outlet valve in very modest terms and he is credible
and reliable;(iii) The supposition that Mr Bilson connected the hose using force
to do so against its natural lay and then applied force in an
upward pulling motion is inconsistent with his experience,
practice and the positioning of his hands on the end of the hose
and the counter effect of gravity;(iv) The experiments he conducted commenced with removing all
stored energy in the hose and did not involve fixing one end of
the hose to the truck. The shortcomings in those experiments
compared to those conducted by Mr Contoyannis is set out in
his file note;(v) The facts assumed by Mr Kahler about the position of the hose
on the ground and in the pit and not raised by the sling such
that no strain energy was introduced to the hose is inconsistent
with the evidence of the plaintiff and the first recorded account
of Mr Savage in his statement to Work Health and Safety.Mr Kahler also acknowledged in his first report, Exhibit 20(a), that the incident was extraordinary and could not have been anticipated. Specifically, he said, ‘the author has completed a literature search and cannot find an incident that replicates the circumstances of this incident’. Understandably, therefore, without prior experience himself, or literature to assist, Mr Kahler initially considered that the stored torsional energy in the hose, accrued by dragging the hose from the garden to the pit, might have been a contributor to the incident and noted as much in his first report. He said:
There is also the possibility that, in pulling the hose back from the garden to the GPT, the hose rolled and stored elastic torsional stored energy.
Mr Kahler then explained that he had done further tests and, as a result of those, prepared his file note and supplementary report. In those reports and further in his oral evidence, he then discounted that hypothesis, and, if anything, dismissed the possibility for there to be stored torsional energy, which contributed to the unexpected movement of the hose. This is notwithstanding the unchallenged evidence of the Plaintiff and untested assumptions used by him to base his report.
He suggested that if there were stored energy, it would arise as a result of the hose being connected ‘against’ the stored memory curve in the hose, and the force applied by the Plaintiff to disconnect the coupling . Again, contrary to the Plaintiff’s unchallenged evidence in respect of the uncoupling.
Mr Kahler seemed determined to rely upon his own testing and the results of that, again, without acknowledging numerous differences between his testing regime and what the Plaintiff said occurred on the day.
Both Mr Contoyannis and Mr Kahler were experienced and impressive witnesses. However, I would without hesitation find that I was more satisfied and assisted by the evidence of Mr Contoyannis. His evidence was far more convincing in respect of the assessment as to stored torsional energy, especially when considered in conjunction with the unchallenged evidence of the Plaintiff.
The difference on the occasion leading to the Plaintiff’s injury was clear. It involved the hose being moved back to the GPT whilst still connected to the truck, as well as the hose being slung and lifted by the crane operator. Mr Kahler’s opinions were, to a significant degree, borne out of his assumptions which in part were contrary to the accepted evidence of the Plaintiff. As submitted in the outline of the first Defendant, the opinion of Mr Contoyannis presents as a more plausible source of the stored energy. There it was noted:
84.Conversely, the opinion of Mr Contoyannis:
a.Is based upon assumptions consistent with the evidence of the Plaintiff;
b.Presents a more plausible source of the stored energy, having regard to:
i.if the source of the energy was from the memory curve/bend in the house and the force of the Plaintiff removing the hose, those two things being or potentially being present on many if not all occasions the Plaintiff had performed the task previously, it is surprising the Plaintiff had not experienced any sign of unexpected movement before;
ii.the Plaintiff's evidence, (consistent in that respect with Mr Savage’s initial account of the incident of 6 September 2017 and his agreement the hose was never touched or moved back until the Plaintiff instructed), is accepted:
(1)the time of the incident was the first time the hose had ever been dragged back to the pit, slung to the crane and lifted prior to the disconnection of the hose from the outlet valve;
(2)the Plaintiff had never previously experienced any unexpected movement in the hose prior to the incident;
and, those things in combination, allow for an inference that it was the movement of the hose back to the pit and it being lifted by the crane which created a source of stored energy which released when the Plaintiff disconnected the hose from the outlet valve, causing the violent movement.
iii.the Plaintiff's (uncontested) evidence the hose moved upwards (not downwards as Mr Kahler would have it) and in a circular fashion, is consistent with a release of torsional (twisting) energy.
Ultimately, the accepted evidence of the Plaintiff, in combination with the expert evidence of Mr Contoyannis, leads me to the finding that the release of stored torsional energy led to the behaviour of the hose, as described by the Plaintiff, and the injury sustained.
Liability
That then leads to the necessary assessment of liability in respect of the Plaintiff’s injuries. This then gives rise to the most significant contest within the matter, whether either the first Defendant or second Defendant is liable and, if so, the extent of that liability, specifically considering contractual arrangements between the first and second Defendant.
Helpfully, the Plaintiff’s submissions in this matter, detailed the statutory framework to follow in respect of the claims made by the Plaintiff in paragraph 23 to 32, and I repeat and rely upon them here:
23 The claim against the first defendant is subject to the provisions of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) in respect of liability, causation and assessment of damages.
24 The WCRA does not apply to the claim against the second defendant as it was not the plaintiff’s employer.
Civil Liability Act 2003
25 The common law applies to liability for and the assessment of the plaintiffs claim for damages against the second defendant. It is not regulated by the Civil Liability Act 2003 (CLA) and the Civil Liability Regulation.
Work Health and Safety Act 2011
26 Section 267 of the Work Health and Safety Act 2011 (WHSA) provides that nothing in “this Act” confers a right of action in civil proceedings. This means that the plaintiff does not have any private right of action for breach of statutory duty.
27 However, the statutory framework effected by the WHSA remains relevant to inform the content of the common law duty of care in negligence.
28 In Koehler v Cerebos (Australia) Ltd McHugh, Gummow, Hayne and Heydon JJ said:
24…As Lord Rodger of Earlsferry pointed out in his speech in the House of Lords in the appeal in one of the cases considered in Hatton v Sutherland, Barber v Somerset County Council, it is only when the contractual position between the parties (including the implied duty of trust and confidence between them) "is explored fully along with the relevant statutory framework" that it would be possible to give appropriate content to the duty of reasonable care upon which an employee claiming damages for negligent infliction of psychiatric injury at work would seek to rely.
29 Consistently with these comments, the principle is noted in recent Queensland cases even where s 267 of the WHSA is raised in bar to the plaintiffs claim. In Leighton Contractors v Fox, there was a similar bar on a claim for breach of statutory duty, but this bar of itself did not defeat the plaintiffs claim which was pleaded in negligence.
30 Under the WHSA and Regulation, each of the defendants owed statutory
obligations to workers at the site including the plaintiff.31 The statutory framework, admitted by the defendants, included the following provisions relevant to the content of the duty owed by the defendants and the Council's employees, pleaded in paragraph 6 of the Amended Statement of Claim that:
(a)required the first defendant to:
(i) ensure, so far as was reasonably practicable, the health
and safety of the plaintiff while he was engaged in his
work activities (WHS Act, s 19(1)(a));
(ii) ensure, so far as was reasonably practicable the provision
and maintenance of a work environment without risks to
health and safety (WHS Act, s 19(3)(a));(iii) ensure, so far as was reasonably practicable the provision
and maintenance of safe plant and structures (WHS Act,
s 19(3)(b));(iv) ensure, so far as was reasonably practicable the provision
and maintenance of safe systems of work (WHS Act, s
19(3)(c));(v) ensure, so far as was reasonably practicable the safe use,
handling and storage of plant, structures and substances
(WHS Act, s 19(3)(d));(vi) ensure, so far as was reasonably practicable the provision
of any information, training. instruction or supervision
that was necessary to protect all persons from risks to
their health and safety arising from work carried out as
part of the conduct of the business or undertaking (WHS
Act, s 19(3)(f)):(vii) ensure, so far as was reasonably practicable, that the
workplace, the means of entering and exiting the
workplace and anything arising from the workplace
were without risks to the health and safety of any person
(WHS Act, s 20(2)):(viii) ensure, so far as was reasonably practicable, that the
fixtures, fittings and plant were without risks to the
health and safety of any person (WHS Act, s 21(2));(ix) identify reasonably foreseeable hazards that could
give rise to risks to health and safety (Reg., s 34);(x) eliminate risks to health and safety so far as was
reasonably practicable (Reg., s 35(a));(xi) if it was not reasonably practicable to eliminate risks to
health and safety–minimise those risks so far as was
reasonably practicable (Reg., s 35(b));(xii) implement risk control measures (Reg., 36);
(xiii) maintain control measures (Reg., 37):
(xiv) Review control measures (Reg., 38).
(b)required the second defendant to:
(i) ensure, so far as was reasonably practicable, the health
and safety of the plaintiff while he was engaged in his
work activities (WHS Act, s 19(1)(b));(ii) ensure, SO far as was reasonably practicable, the health
and safety of the plaintiff was not put at risk from work
carried out as part of the conduct of the business or
undertaking (WHS Act, s 19(2));(iii) ensure, so far as was reasonably practicable the provision
and maintenance of a work environment without risks to
health and safety (WHS Act, s 19(3)(a));(iv) ensure, so far as was reasonably practicable the provision
and maintenance of safe plant and structures (WHS Act,
s 19(3)(b));(v) ensure, so far as was reasonably practicable the provision
and maintenance of safe systems of work (WHS Act, s
19(3)(c));(vi) ensure, so far as was reasonably practicable the safe use,
handling and storage of plant, structures and substances
(WHS Act, s 19(3)(d));(vii) ensure, so far as was reasonably practicable the
provision of any information, training, instruction or
supervision that was necessary to protect all persons
from risks to their health and safety arising from work
carried out as part of the conduct of the business or
undertaking (WHS Act, s 19(3)(f));(viii) ensure, so far as was reasonably practicable, that the
workplace, the means of entering and exiting the
workplace and anything arising from the workplace
were without risks to the health and safety of any person
(WHS Act, s 20(2);(ix) identify reasonably foreseeable hazards that could give
rise to risks to health and safety (Reg., s 34);(x) eliminate risks to health and safety so far as was
reasonably practicable (Reg., s 35(a);(xi) if it was not reasonably practicable to eliminate risks to
health and safety–minimise those risks so far as was
reasonably practicable (Reg., s 35(b));(xii) implement risk control measures (Reg., 36);
(xiii) maintain control measures (Reg., 37);
(xiv) review control measures (Reg., 38).
(c)required the second defendant’s workers to take reasonable care
that their acts or omissions did not adversely affect the health and
safety of other persons (WHS Act, s 28(b)).
32 The statutory obligations relevant to the content of the duty of care do not impose a more stringent or onerous burden:
“While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OHS Act and the Regulation into a duty of care at common law. This is because, as Gummow J explained in Roads and Traffic Authority (NSW) v Dederer, "whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden."”
Notwithstanding those matters that are admitted, there is still the requirement for the plaintiff to demonstrate that the risk of harm was foreseeable, not insignificant and, in the circumstances, a reasonable person in the position of the first Defendant and second Defendant would have taken precautions that would like have avoided the injury. In paragraph 7 of the Further Amended Statement of Claim, the Plaintiff sets out what is suggested as the nature, scope and contents of the duty of care owed by the first Defendant:
7. By reason of:
…
the first defendant owed a non-delegable duty of care to the plaintiff and there were terms implied into the contract of employment by law, which required the first defendant to:
(d) comply with the statutory obligations set out in paragraph 6(a) hereof;
(e) take reasonable precautions for the plaintiff’s safety while he was
carrying out his assigned work;(f) not expose the plaintiff to any risk of damage or injury of which it knew or ought to have known;
(g) take reasonable care that the places at which the plaintiff carried out his assigned work was safe;
(h) instruct the plaintiff in correct and safe methods of carrying out his work;
(i) devise, establish, maintain and enforce safe methods and systems for
the plaintiff to carry out his work;(j) provide for the plaintiff sufficient assistance to enable him to carry out his employment safely;
(k) supervise the plaintiff to ensure he carried out his work safely;
(l) warn the plaintiff of the possibility of injury to him in the carrying out of his work and instruct him in methods of work to avoid the possibility of such injury;
(m) provide to the plaintiff safe and suitable equipment to enable him to
safely carry out his work;(n) not require the plaintiff to perform work where the defendant knew or ought to have known that the carrying out of that work may cause injury to the plaintiff;
(o) ensure the workplace and any activities performed at the workplace were as safe for the plaintiff as reasonable care and skill could make them.
Clearly, the first Defendant owed the Plaintiff a non-delegable duty of care at common law. In Czatyko v Edith Cowan University (2005) 79 ALJR 839, the High Court Summarized the duty as follows:
An employer owes a non-delegable duty of care to its employees to take
reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.
The first Defendant’s position is simply to say that the evidence does not come up to proof such that there could not be a finding nor even an inference, that but for the eye injury, the Plaintiff would have obtained other work, including, specifically, work in the mining industry that would have flown from the offer indicated by Mr Tolley.
As I have already found, however, I am satisfied that, but for the injury, such opportunities were not only offered but were available, particularly in consideration of the Plaintiff’s expertise and ambition. However, I am not satisfied that there could or should be the leap from the offer of work as a truck driver, specifically for a casual period of 6 months, to working half the time as a plant operator at a higher rate of pay. As such, I have made my calculations as to past economic loss based upon the best evidence available in respect of employment as an underground truck operator level 4. That gross income would have been $92,000.00 per annum in the financial year 2019 and without any figures to adjust for, utilise that figure for the period of 1 July 2019 to 8 July 2022, being the last date upon which an actual pay slip is available from the Plaintiff’s current employment. Using the figures able to be drawn from pay calculator.com.au, the nett figure that would have been available to the Plaintiff would have been $277,981.00 during that period. Discounting for contingencies at 10% would then have resulted in figure of $250,182.90 nett.
The Plaintiff’s actual nett income during that period, including to 8 July 2022, was $217,835.00 which would mean an amount for past economic loss of $32,347.90 during that period. Thereafter, to judgment, a calculation as best it can be done, needs to be made between 8 July 2022 and 5 April 2024, a period of 91 weeks based upon the difference in nett incomes subject to a 10% discount for contingencies as between an underground trick driver and in the Plaintiff’s current employment. That is, $158.00 per week or an amount of $14,378.00.
As such, the total for past economic loss is $28,610.80 plus $871.32 plus $32,347.90 plus $14,378.00 totalling an amount of $76,208.02.
Past loss of superannuation entitlements as best as it can be calculated upon the figures assessed and based upon a statutory rate of 10% is $7,620.80.
Loss of future earning capacity must be determined by reference to the facts of the case in question. As stated by McHugh J in Medlin v State Government Insurance Commission (1995) 182 CLR 1:
…Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff's pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff's capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred.
Here, the Plaintiff relies very clearly upon a consideration of a capacity to earn that was not, to all intents and purposes, exploited before the accident. He has subsequent to the accident been offered work by Mr Tolley which did not eventuate as well as seeking other, more lucrative opportunities without success. Interestingly, one of those jobs sought by the Plaintiff was with the Townsville City Council, the second Defendant. He reached the shortlist and was asked to attend for a medical examination. He was not successful and no reason has been provided. As submitted on behalf of the Plaintiff, a reasonable inference may be drawn that, in the circumstances, there is no evidence which would assist the Defendant’s.
As previously found, the Plaintiff is a man with clear abilities and determination. This, combined with his stoicism leads to a proper assessment of him being a man who would continue to work well into his sixties. He is currently aged 47. His future employment is limited to the type of work he currently does, driving a vacuum truck. He is unable to utilise the abilities that he had prior to the injury being sustained. It is submitted for the Plaintiff that he has therefore ‘lost his trade’ to a substantial degree. In my assessment, however, he has not lost his trade but has lost his opportunity for more lucrative employment as evident from the commentary which precedes.
As such, it is necessary to consider the nature of the loss experienced by the Plaintiff. I note in that regard the guidance provided by the Supreme Court in Sutton v Hunter [2021] QCS 249 where Freeburn J noted that a judge is required to state both the methodology and the assumptions on which an award of future loss of earning capacity is based, and that the court is required, as His Honour put it, to adopt ‘a transparent and reasoned approach based on the evidence.’.
There are a number of elements relevant for consideration in respect of the claim for future loss of earning capacity. They include:
a) the ongoing weekly loss representing the loss of ability to pursue work in the mining industry or otherwise in work more lucrative than that of a vacuum truck operator rounded up to $160.00 per week being derived from the past economic loss calculation;
b) the real risk that the Plaintiff may not see out his working life in his late sixties, considering that he may not be able to continue to hold a commercial drivers license; and
c) the reduction in the Plaintiff’s attractiveness as an employee within the labour market, especially when required to disclose his injury. This takes into consideration the concerns expressed by the Occupation Therapist, Ms Ross.
In particular, there is uncertainty with respect to the Plaintiff’s continued entitlements to hold a Commercial Drivers license. He is currently required to obtain a two year license held on a conditional basis. The license is issued for each period through the exercise of a discretion, requiring ongoing medical review and over time, as identified by Doctor Reddie, possible occupational therapy assessment.
There are no guarantees as to the outcome of medical review of occupational therapy assessments and, as identified for the Plaintiff, the possibility of changes in requirements to meet qualification criteria over time.
As such, the Plaintiff argues that applying the principles identified in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, so considering the degree of probability that the Plaintiff would have taken up such opportunities as presented themselves, that there is a 50% chance that the Plaintiff’s future earning capacity, even as it currently is, will be diminished before his desired/expected retirement age.
In those circumstances, the Plaintiff argues that there should be a component representing between 25 and 33⅓% of the Plaintiff’s future earning capacity as assessable as the Plaintiff’s future loss of earning capacity. I accept that such a component should properly be considered here, but, would find that in light of the findings already made in respect of the Plaintiff’s stoicism, that the appropriate component is 25%.
Accordingly, the relevant calculations are:
a) For the loss of chance that the Plaintiff could have worked as a truck driver:
-$160.00 per week over 12.5 years to age 60 (multiplier 488) = $78,080.00, less 10% for contingencies is $70,272.00.
-$160.00 per week over 8 years from age 60–68 (multiplier 346) deferred for 12 years (deferred multiplier 0.557) = $30,836.00, less 50% for contingencies is $15,417.00. For the reduction for contingencies, I rely upon the guidance of the Supreme Court, McMeekin J in Koven v Hail Creek Coal Pty Ltd [2011] QSC 51.
b) For the long term diminution based on 25% of the Plaintiff’s current earning capacity:
-$1,049.00 per week over 12.5 years (multiplier 488) to age 60 times 25% = $127,978.00, less 10% for contingencies is $115,180.00.
c) $1,049.00 per week over 8 years from age 60-68 (multiplier 346) x 25% = $90,738.50.00, less 50% for contingencies is $45,369.25.
I find therefore that the future loss of earning capacity is $246,238.25. I am satisfied, however, that there are also real prospects that the Plaintiff will require further eye surgery and that this will lead to further periods off work and corresponding losses to income. To account for that reasonable expectation I will round up the figure for future loss of earning capacity at $250,000.00.
Future loss of superannuation on that sum, calculated at 11.77% to account for changes in the statutory requirement, is therefore $29,425.00.
Past special damages is agreed in the amount of $82,783.23 and it is noted that WorkCover has already paid a sum of $80,138.63.
Future special damages also arise for calculation. That is difficult of course, in circumstances where there is not precise evidence available in respect of the future expenses required to be met, but, the expectation is that a conservative approach should be followed.
The Plaintiff’s claim includes ongoing requirements for analgesia, at present over the counter medications, as well as the ongoing attention of his treating specialist, at this time Doctor Reddie. The claim is made for $12 per week to cover the recurring costs for the Plaintiff’s life expectancy of 37 years. I accept that as reasonable and, applying the appropriate multiplier (894), it equates to $10,728.00 less 15% for contingencies is $9,119.00.
Additionally, the specialist notes the chance of further difficulties for the Plaintiff including enucleation, and Doctor Reddie opines a future cost of $4,600.00. Certainly, repair surgery of some nature is to be expected and I would find that it would be reasonable to allow a ⅔ chance of future surgery, deferred for 3 years at this time. That, with a multiplier of 0.864, equates to $2,650.00.
Finally, in relation to future special damages, is necessary consideration of the costs of an occupational therapy driving assessment costing presently $1,760.00, and required each 2 years. Presuming the cost at $17 per week and required for the next 20 years (multiplier 666) equates to $11,322.00, but, considering the many possibilities now and into the future, reduced for contingencies by ⅓ equates to $7,548.00.
The total, therefore, for future special damages is fixed at $19,317.00.
There then remains for calculation the interest on past loss of earning capacity/economic loss, calculated in accordance with the formula set out in section 306N(3) of the WC Regulations is rounded to $6,000.00. Further, there is the claim for interest on past monetary loss for medical, pharmaceutical, rehabilitation and travel expenses not otherwise covered. The Plaintiff has calculated and I accept such a claim at $233.00.
The damages and interest payable by the first Defendant are:
-General Damages: $63,950.00
-Past loss of earning capacity/past economic loss: $76,208.02
-Past loss of Superannuation: $7,620.80
-Future loss of Earning Capacity: $50,000.00
-Future loss of Superannuation: $29,425.00
-Past Special damages: $82,783.23
-Future Special damages: $19,317.00
-Fox v Wood: $3,910.00
-Interest on past economic loss: $6,000.00
-Interest on past Special damages: $233.00
-Total: $539,447.05
-Less Statutory refund to WorkCover: $179,757.21
-Balance: $359,689.84
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