Conley v Daracon Mining Pty Limited
[2010] NSWDC 256
•12 November 2010
CITATION: Conley v Daracon Mining Pty Limited [2010] NSWDC 256
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 22 September 2010 - 24 September 2010
JUDGMENT DATE:
12 November 2010JURISDICTION: District Court - Civil JUDGMENT OF: Sidis DCJ DECISION: The proceedings are adjourned to be a date to be fixed to deal with issues relating to the assessment of the plaintiff’s non economic loss, costs and interest. CATCHWORDS: INDUSTRIAL INJURY - Driver of 200 tonne haulage vehicle - Conditions of haul roads within coal mine - Reasonable requirements for maintenance - Apportionment of liability between plaintiff’s employer and coal mine operater - Causation in light of evidence of pre-existing degenerative spine - Indemnification of employer under coal mines insurance policy LEGISLATION CITED: Civil Liability Act 2002
Coal Mine Health & Safety Act 2002
Coal Mine Health & Safety Regulation 2006
Occupational Health & Safety Act 2000
Occupational Health & Safety Regulation 2001
Workers Compensation Act 1987CASES CITED: Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
Watts v Rake (1960) 108 CLR 158TEXTS CITED: Guide to Reviewing Risk Assessment of Mine Equipment and Regulations, NSW Department of Mineral Resources, MDG-1010, May 1997
Bad Vibrations, a Handbook on Whole-Body Vibration Exposure in Mining, Joint Coal Board Safety TrustPARTIES: Desmond Keith Conley (Plaintiff)
Daracon Mining Pty Limited (First Defendant / First Cross-Defendant / Second Cross-Claimant)
Rio Tinto Coal (NSW) Pty Limited (Second Defendant / First Cross-Claimant)
Coal Mines Insurance Pty Limited (Second Cross-Defendant)FILE NUMBER(S): 2009/00332846 COUNSEL: Mr C R Callaway QC & Mr D R Benson (appearing for the Plaintiff)
Mr I Roberts SC (appearing for the First Defendant)
Mr I Griscti (appearing for the Second Defendant)
Mr J Gleeson QC & Mr P Menary (appearing for the Second Cross-Defendant)SOLICITORS: Slater & Gordon Lawyers (representing the Plaintiff)
Gills Delaney Lawyers (representing the First Defendant)
Yeldham Price O'Brien Lusk (representing the Second Defendant)
Norton Rose Australia (representing the Second Cross-Defendant)
JUDGMENT
1 Desmond Keith Conley claimed that he suffered spinal injury in the course of his employment as a driver of a coal haulage truck on haul roads within the Howick Open Cut Colliery at Ravensworth. He claimed damage and loss against his employer, Daracon Mining Pty Limited, the first defendant, and against the operator of the mine, Rio Tinto Coal (NSW) Pty Limited, the second defendant.
2 Each of the defendants cross claimed against the other. Daracon cross claimed against Coal Mines Insurance Pty Limited, the second cross defendant, claiming indemnity under a policy of insurance.
3 The issues were:
- 1 The condition of the haul road on which the plaintiff was required to drive.
- 2 If the condition of the haul road was substandard, whether that was the consequence of neglect on the part of Daracon or Rio Tinto Coal.
- 3 If the condition of the haul road was substandard, whether that was the cause of the plaintiff’s spinal injury.
- 4 The damage and loss suffered by the plaintiff as a result of the claimed spinal injury.
4 The issues arising out of the cross claims were:
1 The apportionment of liability between Daracon and Rio Tinto Coal.
2 The obligation, if any, of Coal Mines Insurance to indemnify Daracon under the policy of insurance.
ISSUE 1 – The condition of the haul road
5 The plaintiff commenced work driving coal haulage trucks at the Howick and Lemington Collieries in 1994. He was employed by a succession of contractors to the mine operators.
6 Rio Tinto Coal assumed operation of the Howick Open Cut Colliery in about June 2000. Daracon secured the contract for the haulage of coal within the Colliery and employed the plaintiff in October 2006.
7 The plaintiff drove Daracon’s fleet vehicle 7016, carrying coal, jitter and rubble. He started driving this vehicle from when it was new in 2005. He described it as a Mercedes prime mover with an oversized coal truck bin, the carrying capacity of which was 70 – 72 kgs.
8 The plaintiff described the roads over which he was required to travel by reference to an aerial photographi. Those roads took him from the bath house at the Howick Coal Preparation Plant, initially to the Lemington Coal Preparation Plant to the south. After Lemington was closed, he travelled to the Riverview and Cheshunt pits to the south and the Carrington pit to the east. The distance involved in a round trip was 20 to 28 kilometres. The plaintiff travelled about 15 round trips in a 12 hour shift.
9 The plaintiff said the roads within the various pits were very good until Rio Tinto Coal took over their operation. He said the previous operator regularly graded the haul roads and did not use the very large 200 tonne haulage vehicles, referred to as dump trucks on the road.
10 He said that Rio Tinto Coal combined the operation of the three pits and started to use dump trucks on the haul roads so that, within six months after it took over operations, the condition of the haul roads deteriorated.
11 The plaintiff said the dump trucks damaged the roads, causing ruts and hollows to form as well as holes as large as 10 feet in diameter extending over areas of the road for about 100 yards. He claimed that this deterioration continued until the time of his injury.
12 There was no dispute that Rio Tinto Coal was responsible, as the operator of the Colliery, for the construction and maintenance of the haul roads.
13 Rio Tinto Coal called two witnesses on this topic. The first was Mr Adrian Williams, an operations engineer, who at the relevant time was responsible for the co-ordination of road construction and maintenance of the haul roads. The second was Mr Stephen Sargent, the Mining Support Supervisor, to whom Mr Williams reported.
14 Mr Williams confirmed that the haul roads were not sealed. Maintenance of the mine roads was undertaken by a road crew for which he was responsible. The crew was made up of seven operators, three of whom worked on the day shift with one co-ordinator. The equipment available to the crew included one bulldozer, one 16H grader and two 657 scrapers. There were eight graders in total on the Howick Open Cut Colliery site. Seven of these graders were controlled by the production department and allocated to the open cut operations where they were employed in road maintenance and other tasks. This left one grader available for use on the haul roads. The bulldozer was also primarily used in the pits.
15 Mr Williams said that about 80 kilometres of road were required to be maintained on a continuous basis. He said that the road crew was increased towards the end of 2009 by the addition of another person to operate the bulldozer on the night shift.
16 Mr Williams agreed that a 70 tonne vehicle required a particular type of road base and that an upgraded road base was required to support the 200 tonne weight of dump trucks. He agreed that dump trucks had the propensity to cause laminations or depressions in the road surface and that the presence of these features indicated that the road base was failing and needed to be upgraded.
17 Mr Williams said that the haul roads were used by Mercedes prime movers and trailers and dump trucks on a 24 hour seven day a week basis. He agreed that the dump trucks caused more damage to the roads than the lighter vehicles. He agreed that the condition of the roads was affected not only by heavy vehicle use but also by inadequate design, heavy rain causing wash aways, mud or flooding, overwatering, wheel rutting, corrugations and pot holes.
18 He accepted that, if not properly maintained, the road could fall into disrepair and become dangerous. He said that, if hazards were identified, controls were put into place.
19 Mr Sargent said that monthly compliance inspections of the road system were undertaken. He attended upon these inspections with a supervisor, the road crew and a superintendent. The condition of the roads was reviewed in the course of these inspections. A Compliance Workplace Inspection Formiifor the month of January 2008 was signed by Mr Sargent on 29 January 2008. It related to roads and bridges in work area 1031, or the north and west of the site. He identified this area as covering the main arterial roads. In respect of the standard of the road, the form referred to two bent posts. The risk ranking allocated to these defects was 17. Mr Sargent said this risk ranking was low.
20 He said he did not inspect the roads prior to signing this form in January 2008. He said he inspected the roads only from time to time.
21 Mr Sargent agreed that dump trucks could cause undulations and laminations in road surfaces within hours, particularly in wet weather conditions. He said the OCE (Open Cut Examiner), employed by or contracted to Rio Tinto Coal inspected the roads on every shift and was responsible for safety. The OCE had the power to stop work if the road was considered unsafe.
22 The plaintiff said there were four OCE’s employed at the Colliery at the time of his injury. They did not give evidence.
23 There was no evidence to indicate that the road base was upgraded to accommodate the weight of dump trucks.
24 In response to a subpoena issued by the plaintiff Rio Tinto Coal produced a number of documentsiii titled HVO Site Severity Survey. They were dated between February 2007 and January 2008. In relation to roads, the surveys read:
Date : 8.2.07
Immediate actions to Meet Minimum : Undulations are continuing to be the main issue in our haul roads in most areas.
Large Laminations in the West Bridge and Link Road before the Centre Crib Hut
Positives: Operators are doing a good job of driving to conditions
Most operators are doing a good job of driving to conditions, but signs of excessive speed were visible.
Operators are doing a good job of driving to conditions.
General: Continued focus on Undulations is required in all areas.
Date : 15 February 2007
Immediate Actions to Meet Minimum: Undulations are continuing to be the main issue in our haul roads in most areas,
Large Laminations in Link Road before the …
Positives: Operators are doing a good job of driving to conditions
General: Continued focus on Undulations is required in all areas.
(two reports provided for this date)
Immediate Actions to Meet Minimum: Undulations are continuing to be the main issue in our haul roads in most areas,
Superelevation required at the top and bottom of the Red Ramp.
Large Lamination in Link Road before the …
Large Laminations in 341 Haul Road requiring repair.
General: Continued focus on Undulations is required in all areas.
Immediate Actions to Meet Minimum: Roads in all pits are continuing to have large issues with undulations although some are results from working on top of coal and can not be avoided but we need to maintain them the best we can. A number …
Positives: Observed Operators doing an excellent job of driving to conditions and where possible avoiding hazards completely.
Date: 30 April 2007
Immediate Actions to Meet Minimum: Undulations in all roads are a very large concern in particular in the South and West as most are resulting in rock exposure.
Positives: Observed Operators driving to conditions
Date: 31 May 2007
Immediate Actions to Meet Minimum: Laminations in 343 requiring repair at the …
Positives: Operators observed driving to conditions
General: Loading units on large blocky material. Continued Focus of repairs of undulations is required, these do not only pose a …
Date: 3 October 2007
Immediate Actions to Meet Minimum: Undulations are returning to Haul Roads, Some Spillage on 340 (Alluvial) and 321 Haul Roads, need to reiterate with …
Positives: Operators were observed driving to conditions
539 Push Cat Operate at 320 was doing a great job of maintaining Haul road as well as Load area.
Date: 1 November 2007
Immediate Actions to Meet Minimum: Large amount of rock exposure in ramp to S2 195.
Large amount of avoidable spillage from 340 in the RL 90 Dump, operators had not …
Positives: Called a grader to the area and spoke to 11-3 in regards to the risk of damage.
Called a grader to the area and spoke to 11-4 in regards to the risk of damage.
General: Ongoing – Loading units on large blocky …
Ongoing - Continued focus on repairs of Undulations is required, these do not only …
Date: 13 December 2007
Immediate Actions to Meet Minimum: 340, Spillage, undulations and High Speed cornering are the main issue identified for potential tyre damage in this area.
321, Undulations are the main issues identified in this area for potential tyre damage.
320, Undulations are the main issues identified in this area for potential tyre …
Positives: Spoke to 11-4 who will reiterate with his Operators to be aware of spillage and report it as soon as possible and to drive to conditions when undulations are present. Communication improved later in the shift.
Date: 15 January 2008
Immediate Actions to Meet Minimum: All haul roads currently have a large amount of undulation which require repair with considerable spillage on the roads.
Positives: Superintendents to work with Road Crew to assist in repair of effected areas.
25 It was apparent that these records were incomplete both in number and in the entries appearing within them. They were, however, sufficient to confirm the plaintiff’s complaints of rough road conditions.
26 In deciding that the condition of the haul roads was substandard, I took into account:
1 Mr Williams’ evidence that:
(a) limited resources were made available to maintain the haul roads;
(b) those limited resources were employed to react to substandard road conditions rather than to upgrade the haul roads or regularly maintain them;
(c) the haul roads were not upgraded to accommodate dump trucks and to avoid frequent failures of the road base.
2 The information provided in the limited numbers of HVO Site Severity Surveys that recorded:
(a) in every survey, reports of unsatisfactory haul road conditions;
(b) drivers were constantly required to drive to conditions;
(c) no reference in the period covered by the Surveys to any proposal to upgrade the haul roads to accommodate the additional weight of the dump trucks.
3 The confirmation provided by these matters of the plaintiff’s evidence concerning the condition of the haul roads.
27 I find that the condition of the haul roads upon which the plaintiff was required to drive was substandard.
ISSUE 2 – Duty of care and breach
28 The plaintiff said that when he encountered rough road conditions he drove around them if possible. Sometimes it was necessary to travel over them to avoid oncoming vehicles. He also drove over them in times of wet weather or after the water truck passed over the road and it was not possible to see the holes and ruts.
29 If the condition of the road was such that it was not trafficable he parked up and awaited the arrival of a grader. The plaintiff said he waited at least 30 minutes for a grader to arrive. On two occasions he was parked up for 10 hours while waiting for the grader. Sometimes the grader did not come at all.
30 The plaintiff claimed that he regularly reported adverse road conditions. He estimated that he did so between two and five times on every shift. He used a two-way radio to make his report. He was able to overhear through this radio the reports of other drivers and their requests that a grader go to various parts of the haul roads.
31 The plaintiff reported his complaints to his leading hand, Mr Spohr, who in turn reported to their shift supervisor, Mr Bell. He also reported from time to time to the OCE’s, each of whom had a different call sign. He nominated them as 11-2 and 11-3 for the two OCE’s at Howick, 11-4 at Carrington and 11-5 at Cheshunt. He also overheard employees of Daracon pass on reports of adverse road conditions to the OCE’s.
32 Mr Glen Eade was the OCE whose call sign was 11-2. The plaintiff said he reported directly to Mr Eade on a number of occasions. He said Mr Eade readily agreed to arrange a grader when he was parked up.
33 Rio Tinto Coal objected to a reportiv prepared by Mr Fogg. It argued, relying on principles established in Makita (Australia) Pty Limited v Sprowlesv, that Mr Fogg criticised the defendants in respect of their approaches to risk management when he was unaware of the procedures that they in fact adopted.
34 I admitted the report because, even if I were to disregard the opinions expressed by Mr Fogg, his report drew attention to various legislative provisions that were directed at health and safety of employees, including the Coal Mine Health & Safety Act 2002, the Coal Mine Health & Safety Regulation 2006, and the Occupational Health & Safety Act and Regulation 2000. Mr Fogg also referred to the publication Guide to Reviewing Risk Assessment of Mine Equipment and Regulationsvi and applicable Australian standards.
35 In particular, he drew attention the following provisions of the Coal Mines Health & Safety Regulation
Clause 15 – Inspection program
(p) in the case of an open cut mine, the carrying out of at least one inspection each shift.
Clause 30 – Contents of major hazard management plan: surface transport management plan
(c) the design (including appropriate signage and provision of adequate windrows) of roadways on which the transport may operate,
and
(h) the operation of the transport on roadways where the condition of the roadways may adversely affect safety.
36 Neither defendant suggested that it did not owe a duty of care to the plaintiff or that it was not reasonably foreseeable that driving regularly over rough road conditions for extended periods presented a risk of injury to the plaintiff.
37 Daracon acknowledged that as his employer its duty of care to the plaintiff was non-delegable.
38 Rio Tinto Coal claimed that, in the circumstances of unsealed gravel roads in use on a constant basis by heavy haulage vehicles in an open cut colliery, its duty of care to the plaintiff did not extend to a requirement that it maintain the roads in pristine condition.
39 This proposition could not be disputed. The question was whether the defendants, knowing that the road conditions required constant attention, took such action as was reasonable to guard against the foreseeable risk of injury to the plaintiff.
40 Rio Tinto Coal claimed that it had done so by providing a road maintenance crew, undertaking regular inspections and instructing drivers on how to proceed in the event that they encountered adverse conditions. Daracon claimed that it had no control over the condition of the haul roads. It claimed that construction and maintenance of the haul roads was the responsibility of Rio Tinto Coal.
41 I did not agree.
42 The machinery provided to maintain the roads outside the open cut sections of the mine has already been noted. The crew comprised three persons and one co-ordinator for the day shift on which the plaintiff worked. The equipment available was one grader and two scrapers. The bulldozer, required for the very large holes described by the plaintiff, was available only when not required in the open cut sections of the mine, where, according to Mr Williams, it was primarily used.
43 These limited resources were provided to maintain 80 kilometres of haulage roads.
44 The Court was provided with a small selection only of the HVO Site Severity Surveys. They were business documents created for the benefit of Rio Tinto Coal. I inferred that the remaining records would not assist in displacing the inference to be drawn from them that the roads were in a continual state of disrepair.
45 The evidence concerning the frequency with which adverse road conditions were reported and of the time taken on occasions to respond to those reports indicated that the resources provided through the maintenance crew and plant were inadequate to maintain reasonably trafficable road surfaces.
46 The second measure adopted by Rio Tinto Coal was to instruct drivers to park up if the road was not trafficable or to drive to conditions. The HVO Site Severity Surveys repeatedly noted that operators were driving to conditions. The plaintiff said these were his instructions when he reported road conditions that required attention.
47 The term drive to conditions meant that trucks were to be driven very slowly or in first gear. The plaintiff said the speed limit when he was employed at the site was 80 km/h. He said he was not instructed to drive at any particular speed and he adopted the speed he considered to be safe. His average speed on rough sections of the road or when the road was wet was 50 to 60 km/h. On very rough ground he reduced his speed further. He said that the decrease in speed increased the level of jarring and jolting that he experienced.
48 Mr Sargant said that the OCE inspected the roads on every shift and it therefore appeared that Clause 15(p) of the Coal Mines Health & Safety Regulation was complied with.
49 The plaintiff’s evidence that road conditions deteriorated after dump trucks were introduced as a means of transporting coal was not challenged. Mr Williams agreed that the haulage roads required upgrading in order to carry the additional weight of the loaded dump trucks. There was no evidence that this was considered by Rio Tinto Coal.
50 It was not claimed by either defendant that that the provision and maintenance of haulage roads of appropriate standard would be unduly expensive or inconvenient.
51 It was not claimed by either defendant that the magnitude of the risk was such that the introduction of preventative measures was not warranted. The extent to which this risk was recognised was evident from publications referred to by Mr Fogg that dealt with the risk of injury to a person exposed to whole body vibration. He appended to his report the publication Bad Vibrations, A Handbook on Whole-Body Vibration Exposure in Miningvii.
52 Recognising that it was not always feasible to keep all roads in a satisfactory condition at all times, the publicationviii suggested that it was important to consider the following points:
· professional road construction methods especially for main roads;
· planned and systematic road maintenance programs that are not regarded as secondary to production demands;
· dedicated vehicles and drivers for road maintenance;
· effective communication of information on road conditions e.g. use caution markers for pot holes and poor conditions;
· immediate rectification of poor road conditions;
· more effective use of water pumps and drainage techniques;
· immediate removal of materials on the road that are likely to cause jolts and jars e.g. rocks.
53 Taken in combination, the inadequate standard of construction of the road surface, the inadequate resourcing for maintenance purposes, the frequency of reporting of adverse conditions and the information provided in the HVO Site Severity Surveys indicated that the defendants allowed vehicles to operate on haulage roads that were in very poor and rough condition.
54 The instruction to drive to conditions, according to the plaintiff’s unchallenged evidence, increased the jarring and vibration to which he was exposed.
55 I find that the steps taken by the defendants to deal with the conditions presented to the plaintiff by reason of the poor and rough condition of the haul roads were inadequate to protect him against the foreseeable risk of injury as a result of jarring and vibration suffered when driving on the haul roads for extended periods.
56 I find that a reasonable person in the position of Rio Tinto Coal would have taken additional precautions through the construction of road base designed to carry vehicles of up to 200 tonne in weight and the maintenance of the haul roads to a condition where jarring and vibration of drivers of vehicles would be reduced to acceptable levels.
57 Aside from conveying reports of adverse road conditions, Daracon took no action independently of Rio Tinto Coal to improve driving conditions for its employees. It claimed that the only avenue available to it was to stop work, a measure that in the circumstances that would be unreasonable.
58 I considered that there were other steps that reasonably could and should have been taken. There was no evidence that Daracon protested to Rio Tinto Coal concerning the condition of the haul roads or that it drew Rio Tinto Coal’s attention to its obligations under the legislation directed at the protection of workers on mine sites. I find that a reasonable person in the position of Daracon would not have relied solely on the reactive system of road maintenance adopted by Rio Tinto Coal.
59 I find that the defendants were in breach of their duty of care to the plaintiff.
ISSUE 3 – Causation
60 The issue of causation related to the condition of the truck provided by Daracon and the plaintiff’s medical history of prior complaint of low back problems.
61 The plaintiff’s claim against Daracon alleged that the vehicle he drove was unsuitable having regard to road conditions at the site. Mr Fogg made reference in his report to various aspects of the vehicle driven by the plaintiff and its suitability. These matters were not pressed by the plaintiff but they were relied upon by Rio Tinto Coal in its cross claim against Daracon.
62 The only evidence in relation to the condition of the truck was that the plaintiff drove a substitute vehicle when truck 7016 was off road for regular maintenance.
63 The plaintiff complained that when he struck a rough section on the haulage road, he was jarred through to the seat of the truck and he suffered back pain. He said truck 7016 was reasonably comfortable to drive when the road was in good condition. He claimed that it hit rocks on the road harder than other trucks in Daracon’s fleet when it was loaded in the front half of the trailer. He said he reported this to various employees of Daracon who agreed to attend to his complaint. The plaintiff said the problem was never resolved.
64 In the absence of technical evidence to suggest that truck 7016 was defective to the point where it caused jarring and vibration to an unacceptable level on a properly constructed and maintained haul road, I was not persuaded to accept Rio Tinto Coal’s submission that the condition of the truck caused or contributed to the plaintiff’s injury.
65 The plaintiff claimed that he developed back pain during his shift on 23 January 2008. He said he had no pain at the commencement of the shift but there were many ruts in the road on that date and his pain developed during the day.
66 In January 2008 the plaintiff was 53 years old. He had been driving haulage trucks on unsealed roads for 15 years. There was radiological evidence that by January 2008 the plaintiff suffered from degenerative conditions affecting various parts of his spine and his hip joints. The clinical notes of his general practitioner, Dr Ford, recorded complaints of back pain as early as 1997.
67 The defendants relied on this history and the absence of any specific incident causing trauma to the plaintiff’s spine to argue that in January 2008 he suffered an aggravation of this pre-existing degenerative condition and that his continuing complaints of pain and disability were substantially attributable to that condition.
68 As far as the history of complaint of back pain was concerned, Dr Ford’s clinical notes appeared to record complaints of back pain in 1997 and 1998 for which the plaintiff was prescribed pain killing medication, a further complaint in May 2000 and in February 2005 when x-rays were taken.
69 The plaintiff, after initially stating that he had no back pain before January 2008, agreed that, if recorded in the clinical notes, he had some minor back problems before that date but said that he continued to have the capacity to work 12 hour shifts driving on very rough roads without taking sick leave. He agreed that he was more sensitive to road conditions after the symptoms in his back commenced. He described his problem as niggling pain. He said that in January 2008 the level of pain increased, extended into his right leg and thereafter the pain was unremitting.
70 The defendants pointed to inconsistencies in the histories recorded in medical reports. In some cases medical examiners were told that there was no prior history of back pain.
71 Dr Russo recordedix in August 2008 that the plaintiff first developed upper back pain on 28/1/08 [sic] in the routine nature of his duties. At the other extreme Absolute Injury Management reportedx a history of persistent pain over the prior five to six years with a major flare up in January 2008. Mr Bass, psychologist, in October 2009 reportedxi a history that the plaintiff suffered a gradual onset on low back pain until in January 2008 he could no longer drive his truck.
72 Taken to these reports, the plaintiff stated repeatedly that he did not remember being asked to provide medical histories but he did not dispute the accuracy of the information recorded.
73 All of the medical reports noted the degeneration in the plaintiff’s spine revealed by the various radiological investigations. The medical experts accepted these findings as the source of the plaintiff’s continuing pain and discomfort. They expressed differing opinions concerning the extent to which the plaintiff’s working conditions were the cause of his ongoing symptoms.
74 Dr Millons saidxii the CT scan performed in March 2008 recorded age-related spondylitic changes that are really minor considering Mr Conley’s age and build. At that stage he found it difficult to believe that the plaintiff was as disabled as reported by Dr Ford. He was of the opinion that with weight reduction and conditioning the plaintiff ought to be able to return to work.
75 Dr Grahamxiii in October 2008 was similarly concerned that the plaintiff had not recovered to the point where he could return to work. He did not consider that the pathology in the plaintiff’s back was more significant than that routinely occurring with age and said that in the circumstances he ought to be able to return to work as a truck driver.
76 Dr Tarrant in March 2010 reportedxiv that the radiological investigations pointed to widespread thoraco-lumbar arthritis. He said the plaintiff’s low back pain was the result of the aggravation of this condition and that it was not caused by his employment. He considered that the aggravation continued for days or, at best, weeks. He accepted that driving a vehicle on rough mine roads would not be good for a person’s back.
77 Dr Wallacexv examined the plaintiff in June 2009. He was informed that there was no prior history of back problems. He diagnosed musculo-ligamentous strain of the lumbar spine and temporary aggravation of pre-existing degenerative lumbar spondylosis. He accepted that the plaintiff’s back pain was the result of his working conditions but said a significant proportion was due to the pre-existing degeneration. His attributed one half of the plaintiff’s impairment to his employment.
78 In April 2010 Dr Wallacexvi revised this estimate, attributing two thirds of the plaintiff’s impairment to his employment. In cross examination he said he altered his opinion on this aspect because he considered he previously placed too much weight on the pre-existing condition. He said the opinion he expressed in his reports remained unchanged notwithstanding that he had since been provided with a history of the plaintiff’s earlier complaints of back pain. He said the history of the plaintiff’s occasional attendances on his general practitioner and the prescription of pain killing medication for back pain was normal and insignificant.
79 Dr Wallace did not agree that it was inevitable that the plaintiff would suffer back pain, taking account of the degenerative changes in his spine and his driving of heavy haulage trucks on unsealed roads for 15 years. He agreed that there was a reasonable prospect that back pain would develop under those conditions.
80 Dr Millons agreed that it was inevitable that the plaintiff’s symptoms of back pain would increase because of his age, the degenerative changes in his spine and his weight. He said that the degenerative changes developed over time and that the medical history indicated that the plaintiff’s symptoms waxed and waned. He did not accept that it was inevitable that the plaintiff’s symptoms would have prevented him from working prior to retirement age, although he said he might have difficulty working as a truck driver to that age. He agreed also that, the plaintiff’s symptoms having continued since January 2008, the conditions that caused his back pain to develop on 23 January 2008 were a watershed in the development of those symptoms.
81 In submissions on behalf of Daracon, its senior counsel accepted that, in the absence of evidence of any other trauma or other explanation, the medical evidence was not insufficient to find that the jarring and vibration suffered by the plaintiff on 23 January 2008 was the cause of an aggravation of the pre-existing degenerative condition and therefore the cause of his ongoing complaint of pain and disability.
82 Counsel for Rio Tinto Coal pointed to the absence of evidence of any specific trauma as the cause of the plaintiff’s injury and to his history of having driven heavy vehicles on unsealed mine roads for a period 15 years, about 7 of them while those roads were under the control of Rio Tinto Coal. It was asserted that the plaintiff was required to establish that he would not have suffered injury if the haul roads were adequately maintained.
83 This submission was contrary to authority. In Watts v Rakexvii Justice Menzies said:
It was for the appellant as plaintiff to prove his damages, and merely to prove his present condition and his incapacity to work would not prove that these things resulted from the accident. It was not, however, for the plaintiff to disprove that his pre-accident ill health would eventually cripple and incapacitate him. Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, eg, that the plaintiff has aggravated his condition by some unreasonable act or omission. Similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health.
84 In this case there was evidence that the plaintiff’s spine was affected by degenerative arthritis prior to the accident and that his condition would continue to deteriorate. The clinical notes recorded by his general practitioner indicated that the plaintiff complained only very occasionally of back pain prior to January 2008. The opinions of a number of the medical experts was that the extent of the pre-existing degeneration was of no greater significance that might be expected of a person of the plaintiff’s age and build. He continued to have the capacity to perform his 12 hour shifts.
85 I did not accept therefore that the plaintiff’s pre-accident condition had advanced to the point that, without the jarring and vibration to which he was exposed on 23 January 2008, he would inevitably have suffered symptoms of the severity of which he complained after that date.
86 There was no evidence of any other cause for the sudden onset of the severe and unremitting symptoms of which he complained after 23 January 2008. I was satisfied therefore that the jarring and vibration suffered by the plaintiff on 23 January 2008 were the cause of the aggravation of his pre-existing condition and of its acceleration of the point in time when his symptoms were likely to increase.
ISSUE 4 – Assessment of the plaintiff’s damage
Non-economic loss
87 The plaintiff said that he continued to work to the end of his shift on 23 January 2008. He consulted Dr Ford on 24 January 2008 because he could not go to work.
88 On 1 February 2008 he again consulted Dr Ford complaining of severe leg and back pain. He continued to consult Dr Ford on a regular basis. X-rays and a CT scan were undertaken in March 2008. Acupuncture and physiotherapy provided him with no relief and were therefore discontinued.
89 Dr Ford referred the plaintiff to Dr Russo in August 2008 because his symptoms were increasing. Dr Russo treated him with injections but they did not relieve the plaintiff’s symptoms and they were discontinued.
90 The plaintiff was also referred to Dr Ghabrial and Dr Kuru, each of whom acknowledged his discomfort but provided no recommendation for treatment.
91 The plaintiff said that at no time was he pain free although on some days his pain was greater than on others. Certain activities caused his pain to flare.
92 Prior to the development of his symptoms he enjoyed his hobby of wood turning, making pens, bowls and particularly wooden clocks from his workshop at home. This had been his hobby for ten years. He said he made about 50 clocks each year from wood that was purchased or donated. He said that he now found it very hard to lean forward on the wood lathe because this activity caused his back pain to increase significantly. He has therefore abandoned this hobby.
93 He was also responsible for gardening and mowing in his garden. He continued these activities but undertook them much more slowly.
94 He continued to drive but complained that the drive from Singleton to Newcastle and return caused him significant pain.
95 In addition to his back pain the plaintiff suffered from obesity, non-insulin dependent diabetes and hypertension.
96 All medical experts referred to the plaintiff’s obesity and recommended that he attempt to reduce his weight. His said that he attempted to do so, regularly losing and then regaining the lost weight.
97 Dr Wallace agreed that the plaintiff’s rehabilitation would be assisted by weight loss because it would reduce the severity of his back pain but he did not regard the plaintiff’s obesity as a significant factor in his condition. Dr Millons said his weight accelerated the rate at which the degenerative condition of his spine developed. He did not consider that weight loss would assist in resolving the plaintiff’s complaints of pain.
98 Ultimately, the defendants accepted that the plaintiff was a truthful witness and that the evidence indicated that he suffered an aggravation of pre-existing degenerative conditions. Rio Tinto Coal contended that I should take into account Dr Wallace’s assessment that one third of his current condition was related to his pre-existing condition.
99 The aggravation of the pre-existing condition caused the plaintiff symptoms of unremitting pain and significantly curtailed his every day activities and his enjoyment of life. Taking this into account, together with his age and the evidence that the pre-existing condition would at some stage reach the point at which he would suffer from increasing symptoms, I assessed the plaintiff’s non-economic loss at 28% of a most extreme case.
Income Loss
100 The plaintiff took two days of sick leave and a rostered day off on the following Monday. He returned to work on Tuesday but his nagging pain increased and extended into his right leg. This was the first occasion on which he experienced leg pain.
101 After consulting Dr Ford on 1 February 2008, the plaintiff remained at home resting for one week before returning to work on light duties. He worked an ordinary full time shift. This work involved tasks such as sweeping and removing garbage. He was supervised by Absolute Injury Management.
102 In February 2009 Daracon’s contract at the Howick Open Cut Colliery expired and the plaintiff’s working hours were changed. He worked an eight hour shift for five days each week but was having difficulty in managing his work. He said he took time off once or twice a week because pain in his low back was increasing. His hours were reduced to four hours a day for six weeks but he was still unable to manage. In November 2009 he was sent home and he has not worked since that date.
103 The plaintiff agreed that he had not looked for work since November 2009 because of the restrictions placed upon him by his doctor. He said that he would not be able to undertake employment as a courier because he could not sit in a motor vehicle. Similarly he could not return to work as a truck driver on sealed roads because of the difficulty he encountered getting into and out of trucks and climbing stairs.
104 He said he was not proposing to look for work.
105 It was clear from the medical reports and it was not disputed by the defendants that the plaintiff’s condition would not permit him to return to work as a driver of coal haulage trucks on rough, unsealed roads.
106 The Civil Liability Act 2002 required that I consider the plaintiff’s most likely future circumstances if he remained uninjured. The defendants agreed that on expiry of the Daracon haulage contract, 8 of 14 of the drivers employed by Daracon were taken on by its successor. This concession suggested that, as had occurred on many prior occasions, the plaintiff would probably have been employed by the incoming contractor.
107 The plaintiff said that at the time of the onset of his symptoms he was working long hours and was not considering retirement. He proposed to continue driving at the mine until the age of 65. I accepted the contentions of the defendants that the medical evidence indicated that it was probable that the degenerative condition of the plaintiff’s spine would affect his capacity to continue in that type of employment until retirement age and that therefore an increase in the discount for vicissitudes was warranted. On this basis I increased the discount to 25%.
108 The defendants also argued that the plaintiff had a residual income earning capacity of about one half of his pre-injury income. They pointed to the absence of any attempt on his part to look for alternative employment.
109 There were a number of factors that militated against the prospect that the plaintiff would find suitable alternative employment. He is now aged 55. He was not academically inclined, having left school in Year 9. His literacy levels were limited. His only employment has been in unskilled labouring positions that required full physical capacity. The employment prospects put to him by the defendants involved driving, an activity that he described as painful even on sealed roads. He remained obese, notwithstanding his attempts at weight reduction. He suffered from other health conditions that did not affect his capacity to work for Daracon but which would not make him an attractive candidate to a future employer.
110 In addition to these difficulties, Dr Newton-John, psychologist, reportedxviii that the plaintiff held rigid beliefs that his pain would inevitably become worse and that any undue movement of his spine would accelerate the deterioration in his condition. He reported:
He therefore believes that he must remain as immobile as possible in order to preserve his level of function. He believes that he is ‘not allowed’ to bend, and that his eventual disability is inevitable. He was quite open about his fears of re-injury and the fact that he is protective of his back at all times now.
111 Overall, I considered his prospects of finding future employment to be severely limited and I accepted as more than reasonable the plaintiff’s concession that his residual income earning capacity should be assessed at $500 net per week.
112 There was a difference between the plaintiff and the defendants concerning the rate at which the plaintiff’s past economic loss was to be assessed but the plaintiff appeared to concede that the appropriate rate was $1,270 per week net and I therefore assessed his loss on that basis, allowing $69,615 for income loss and $7,657.65 for superannuation.
113 The parties agreed that the rate for future income loss was $1,316 net per week. Deducting $500 for residual income earning capacity and 25% for vicissitudes the sum arrived at for future income loss was $247,676 and $ 27,244 for superannuation.
Out of Pocket Expenses
114 Past out of pocket expenses were agreed in the sum of $31,430.
115 There was no evidence that the plaintiff received any continuing medical treatment, all attempts at pain management having been unsuccessful and therefore ceased.
116 I agreed that it was likely that the plaintiff would find it necessary to consult his general practitioner from time to time and to take pain killing medication and I therefore considered reasonable the claim of $2,000 for future out of pocket expenses.
117 The Fox v Wood component was agreed at $17,665.
ISSUE 5 – Apportionment of liability between Daracon and Rio Tinto Coal
118 Daracon accepted liability to the plaintiff to the extent of its non-delegable duty. It argued that, having no capacity to exercise control over the condition of the haul roads, the proportion of its liability should be assessed on the basis that its position was analogous to that of a labour hire company.
119 I did not accept this argument. I have already noted that there were steps that could and should have been taken by Daracon to alert Rio Tinto Coal to the risks to which it employees were exposed and to protect its employees from those risks.
120 I did accept that Rio Tinto Coal, as the party having control of the mine site and sole responsibility for the construction and maintenance of the haul roads, must bear the greater percentage of responsibility for the plaintiff’s damage and loss.
121 I apportioned liability as to 65% to Rio Tinto Coal and 35% to Daracon.
122 Rio Tinto Coal claimed that Daracon was obliged to indemnify it from liability to the plaintiff pursuant to the provisions of the haulage contractxix to which they were parties. Clause 34.2 of the General Conditions for Services described an obligation of indemnity in very broad terms that extended to:
(b) any negligent act or omission by the Service Provider (Daracon) or its Personnel relating to the performance of the Contract and any Purchase Order;
(e) the illness, injury or death of any of the Service Provider’s Personnel arising out of or in any way related to the Contract and any Purchase Order;
123 Daracon relied upon the exclusion contained in clause 34.3 as follows:
The Service Provider will not be liable under Clause 34.2 to the extent that the Liability was solely caused by the Company’s (Rio Tinto Coal’s) negligence or wilful default.
124 Rio Tinto Coal raised two factors as breaches by Daracon of its obligations under the contract that entitled it to indemnity.
125 It claimed that Daracon failed to respond to the plaintiff’s complaint that truck 7016 provided a rougher ride than the other trucks in its fleet. It was pointed out that Daracon called no evidence to challenge this part of the plaintiff’s evidence and contended that, if I accepted this as evidence of a defect in vehicle 7016, Daracon was in breach of clause 2.11 of the contract, clause 1.1 of Schedule E and clause 7.1(c)(ii) of the General Conditions.
126 I have already considered and rejected Rio Tinto Coal’s claim that there was evidence indicated that a defect affecting truck 7016 was responsible for the plaintiff’s injuries.
127 Rio Tinto Coal also claimed that Daracon failed to take precautions to ensure that the haul road was safe for the operations of its employees. This was said to place Daracon in breach of clause 1.1 of Schedule E to the contract that imposed on Daracon an obligation to take precautions to ensure the safety and health of its personnel and in this respect to comply with relevant laws and regulations, standards, Rio Tinto Coal’s safe working standards and procedures and Daracon’s safety policy and regulations.
128 I agreed that Daracon could not entirely escape liability for the condition of the haul road but I considered that Rio Tinto Coal was, independent of any breach of duty by Daracon, responsible for 65% of the damage and loss suffered by the plaintiff.
129 To this extent, I considered that Rio Tinto Coal’s liability was caused solely by its own negligence and I find that Daracon was not required by the provisions of the contract to indemnify it in respect of that liability.
ISSUE 6 – Coal Mines Insurance obligation to indemnify Daracon
130 Coal Mines Insurance entered into a contract of insurance with Daracon pursuant to which it issued an Employers Insurance Policy containing the terms required by the Workers Compensation Act 1987.
131 Coal Mines Insurance denied that it was liable to indemnify Daracon under the policy in respect of any damages that Daracon might be ordered to pay pursuant to the contractual indemnity relied on by Rio Tinto Coal.
132 In the absence of any finding against Daracon to that effect, I find that, pursuant to their contract of insurance, Daracon is entitled to indemnity from Coal Mines Insurance in accordance with the terms of the Employers Insurance Policy.
ORDERS
133 The proceedings are adjourned to be a date to be fixed to deal with issues relating to the assessment of the plaintiff’s non economic loss, costs and interest.
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Exhibit A
Exhibit 2D2
Exhibit R
Exhibit Q1
(2001) 52 NSWLR 705
, NSW Department of Mineral Resources, MDG-1010, May 1997
, a Handbook on Whole-Body Vibration Exposure in Mining, Joint Coal Board Safety Trust
at p.29
Exhibit E1
Exhibit 1D-4
Exhibit 1D-5
Exhibit D2
Exhibit C2
Exhibit 2D-1
Exhibit F1
Exhibit F3
(1960) 108 CLR 158 at 163-164
Exhibit K
Exhibit 2D-3
03/08/2011 - 23 November 2010Costs order in respect of the plaintiff are as follows:I make orders in accordance with the Short Minutes signed and dated 23 November 2010. I note paragraphs 1, 2, 3, 4 and 5The first defendant, Daracon Mining Pty Limited, is to pay the costs of the plaintiff up to and including the 19 July 2010 on an ordinary basis and thereafter on an indemnity basis. The second defendant, Rio Tinto Coal (NSW) Pty Limited, is to pay the costs of the plaintiff up to and including the 23 September 2010 on an ordinary basis and thereafter on an indemnity basis. Judgment for the second cross-claimant, Daracon Mining Pty Limited, against the second cross-defendant, Coal Mines Insurance, on the second cross-claim. The second defendant, Rio Tinto Coal (NSW) Pty Limited, is to pay those costs payable by the second cross-defendant, Coal Mines Insurance, to the second cross-claimant, Daracon Mining Pty Limited, in respect of the second cross-claim on an ordinary basis. The exhibits are returned. - Paragraph(s) 133
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