Foster v Mount Isa Mines Ltd
[2000] QSC 399
•8 November 2000
SUPREME COURT OF QUEENSLAND
[2000] QSC 399 File No 182 of 1998
BETWEEN:
CRAIG STEPHEN FOSTER
First Plaintiff
AND:
TONI BURCHER
Second Plaintiff
AND:
MOUNT ISA MINES LIMITED
(ACN 009 661 447)
First Defendant
AND:
MIM HOLDINGS LIMITED
(ACN 009 814 019)
Second Defendant
MOYNIHAN J – REASONS FOR JUDGMENT
DELIVERED ON: | 8 November 2000 |
HEARING DATES: | 18 – 19 October 2000 |
ORDER: | 1. Judgment for the first plaintiff against the first and second defendants for $ 476,956.78. 2. Judgment for the second plaintiff against the first and second defendants for $ 5,000. |
CATCHWORDS: | TORTS – NEGLIGENCE – GENERAL MATTERS – plaintiff/wheel attendant/labourer injured in the course of employment – whether safe system of work – whether plaintiff contributory negligent – damages Sungravure Pty Ltd v Meani (1964) 110 CLR 24, followed Law Reform (Husband and Wife) Act 1989, s 3 |
COUNSEL: | M Grant-Taylor SC with DJ Kelly for the plaintiffs |
SOLICITORS: | Shine Roche McGowan for the plaintiffs |
The first plaintiff (it is convenient to refer to him as the plaintiff) was born on 18 March 1967. On 24 January 1995, in the course of his employment, he suffered a back injury and sues to recover damages. The second plaintiff was the plaintiff’s wife at the time of the accident and sues for loss of consortium.
The plaintiff was employed as a labourer or wheel attendant in the Mount Isa Mine’s Copper Refinery. The refinery works three shifts and the plaintiff was cleaning up towards the end of the night shift. To do that, he used a large diameter hose over a considerable area of floor depicted in various photographs and plans which are in evidence; although the area had changed since some of the photographs were taken. Exhibit 2 is a convenient reference point. The note that the position of the ladle is approximate should be borne in mind. The plaintiff’s approximate path is also depicted. The hose and the tap to which it is attached were associated with the top pillar marked on exhibit 2.
Essentially, I accept the plaintiff’s evidence. Towards the end of his task he was moving backwards towards the pillar to turn the tap off and store the hose. No doubt it could be convenient for a worker engaged as the plaintiff was, to move backwards from time to time, although it may not have been strictly necessary to do so.
As he moved backwards the plaintiff tripped over a ladle which was used in the production of copper anodes. The ladle was about “2½ to 3 metres long”, “about 3 feet wide” and “between 1 foot and 2 feet high”. It is not possible on the evidence to determine its precise position but, I am satisfied, it was an appreciable distance from the usual storage area for ladles, and in the general position indicated on the exhibit.
After the completion of a production run, ladles which needed heavy cleaning were taken outside the smelter building by forklift, cleaned, then returned and left by the forklift convenient to an overhead crane. The crane was then used to transport them to an area where ladles requiring only light cleaning or clean ladles were stored. The approximate position of that area is marked on exhibit 2.
The ladle over which the plaintiff fell had been placed there by a forklift, after it had been cleaned outside as a preliminary to its being returned to the storage area. It was probably placed there after the plaintiff had left the particular area in the course of his cleaning up.
The plaintiff did not know that the ladle had been left where it was. The overall area in the copper smelter was cluttered and noisy, even if it quietened down when a production run was completed. The plaintiff, as was normal practice, was wearing earmuffs and earplugs and was preoccupied with his clean up task, which as I have said, involved using a large diameter hose to shift the debris of the production process. These considerations explain why he did not see or hear the forklift which left the ladle, notwithstanding that it was equipped with a flashing light and a reversing siren.
It was foreseeable that a ladle of the dimensions of the ladle here deposited as it was, constituted a danger to a worker carrying out the task the plaintiff was engaged in.
The risk of injury inherent in the situation I have just described could have been obviated by segregating the area in which ladles brought in after heavy cleaning were left from pedestrian traffic, having the arrangement whereby the ladle was moved immediately after being deposited or by depositing it convenient to the crane in a way that avoided it being tripped over by, for example, elevating it. The evidence does not suggest dealing with the risk in such ways would involve any great difficulty. His employer was therefore negligent. Moreover, the facts being as I have found, the employer failed to provide a system of work that was, so far as practicable, safe and without risk to the health and safety of employees in the position of the plaintiff, as a consequence of which he suffered the injury complained of. There was a breach of s 9(1) of the Workplace Health and Safety Act 1989.
The employer alleges contributory negligence. Stripped of the irrelevancies of the pleading, the allegation essentially is that the plaintiff was walking backwards without ensuring that there was nothing over which he might have tripped. The issue is whether the plaintiff’s conduct was “mere inattention, inadvertence or misjudgment” in circumstances “bred of familiarity and repetition, the urgency of the task, the man’s preoccupation with the matter in hand and other prevailing conditions”: see Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37; McLean v Tedman (1984) 155 CLR 306 at 315; and, Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310. I am not satisfied that the plaintiff’s conduct constituted contributory negligence on the facts as I have found them.
The plaintiff’s fall precipitated severe disabling low back pain which gradually improved with physiotherapy and medication but did not settle and then reoccurred – the condition is aggravated by activities such as bending or maintaining a sustained posture. The plaintiff was found to have a prolapsed disc on the left side at L5/S1 causing nerve root compression and generating low back pain – the intensity of which fluctuates over periods of exacerbation. As well as chronic low back pain, the plaintiff has developed left-side sciatica. These conditions are due to the fall of 24 January 1995.
Conservative treatment is unlikely to improve the plaintiff’s condition. Surgical intervention is contemplated – a lumbosacral discectomy and possibly fusion. The plaintiff appears keen to undergo it; success, however, is not assured. It is impossible to quantify the prospects on the evidence as it stands, but they appear positive.
The plaintiff has been diagnosed as suffering from an adjustment disorder with “mixed anxiety and depressed modes secondary to a number of stressors” including, but not restricted to, the accident of 24 January 1995. The plaintiff’s realisation that he was not able to return to his previous lifestyle and work activities as a consequence of the accident has been a significant stressor. Disappointment with the outcome of his surgery would be a significant stressor. Other significant stressors have been the break down of his marriage to the second plaintiff, difficulties with access arrangements and his failure to obtain a hotel manager’s licence.
The plaintiff’s psychological state has been contributed to by substance abuse (alcohol and cannabis). The plaintiff had substance abuse problems before the accident, but nevertheless may have had them in any event. The accident stirred them up and exacerbated them. It cannot be said the accident caused the plaintiff’s marital problems but it certainly precipitated them. The plaintiff would benefit from counselling to deal with his adjustment disorder to which the accident has contributed. It is impossible to quantify that contribution.
The plaintiff left school at 15 and worked as a stable hand or stable foreman, his stepfather was a horse trainer, from July 1991 to October 1992. After about three months on social security benefits he and the second plaintiff conducted a delicatessen. This was not successful and they went to Mount Isa in August 1994 to reestablish themselves and attain financial security. The plaintiffs married on 19 August 1993. The second plaintiff had a child of a previous association and there was a child of the marriage.
The plaintiff was a permanent employee of the first defendant by the time of the accident. All else being equal, the plaintiffs would have settled in Mount Isa and the plaintiff would have continued in his employment at the mine, up to and beyond the date of the trial. He would probably have continued in comparable work for the rest of his working life, but not necessarily continuously, and not necessarily at Mount Isa.
The plaintiff did not return to work at the smelter after the accident. After a period of worker’s compensation, he worked for a security company as a crowd controller. He then worked at the Argent Hotel acting as manager from April to September 1995 when his employment was terminated because he could not obtain a publican’s licence on account of a criminal conviction arising out of drug abuse. It seems he could cope with the work.
The plaintiffs’ marriage broke down, they separated and returned separately to Brisbane towards the end of 1995 or early in 1996. At the time of the trial he was in a new relationship.
After some months on social security, the plaintiff returned to work as a stable hand at the beginning of July 1996. He was unable to continue in that work because of the bending and lifting involved. He ceased on 30 May 1997 and has been on Commonwealth benefits since.
To summarise, as a consequence of the accident of 24 January 1995, the plaintiff has suffered a permanent partial disability involving his lumbar spine exacerbated by the adjustment disorder, which to some extent was caused or exacerbated by the accident. There is a prospect that the plaintiff’s physical disabilities may be relieved by surgical intervention. Failure of the operation will however probably have an adverse effect. In any event, his disability has and will cause the plaintiff pain and suffering. It has reduced his capacity to enjoy the amenities of life, particularly gym work, playing pool and swimming to the extent he previously enjoyed them. The plaintiff has been on anti-depressant and pain relief drugs and this will continue. The extent to which it does, will depend, among other things, on the outcome of the operation.
The plaintiff’s condition will not stabilise until the outcome of surgery is resolved. The evidence is not forthcoming as to when this might occur.
If the surgery is successful, the plaintiff will probably be capable of light work, particularly of a supervisory or managerial nature, and not involving bending or lifting. His pain would be reduced, he could do more for himself and enjoy more of the amenities of life. If he does not have successful surgery, his condition will most likely deteriorate over time.
The plaintiff’s injuries restrict what would otherwise be his capacity to perform domestic chores and home maintenance work and others have to do what he cannot do himself and it is necessary that this be reflected in the damages.
The plaintiff’s earning capacity is markedly reduced by the accident and its outcome. As I mentioned earlier, had he not been injured, he would probably have continued working in the capacity he was employed in at the time of the accident. There is evidence of the earnings of comparable employees which, it is accepted, provides a basis for determining what the plaintiff’s own income would have been.
As I have said, the plaintiff’s future earning capacity depends on whether he has surgery and the effectiveness of the surgical intervention. His best work capacity by reason of his personal characteristics and educational attainment is in the area of practical, manual work, rather than clerical or similar work, but his disabilities will not allow it. The plaintiff has the intellectual capacity to be trained to work in those fields but he may not easily adjust to it, even assuming a successful outcome to the surgery.
I turn to assess the plaintiff’s damages in terms of the applicable conventional headings. For reasons which have been canvassed, many of these components are a matter of informed judgment rather than calculated.
$
| 1. | Pain, suffering and loss of amenities | 35,000.00 |
| Interest on $17,500.00 to trial | 2,000.00 | |
| 2. | Past economic loss | 170,000.00 |
| Interest on $131,320.00 (reduction taking into account weekly workers’ compensation / social security / Centrelink payments) | 37,000.00 | |
| 3. | Past loss of employers’ contributions to superannuation | 10,000.00 |
| Interest | 2,500.00 | |
| 4. | Special damages (agreed) | 4,350.96 |
| Interest on $1,855.92 | 540.00 | |
| 5. | Recliner chair and replacements (I accept that this is beneficial) | 3,888.50 |
| 6. | Past care (agreed) | 1,500.00 |
| Interest | 430.00 | |
| 7. | Future economic loss | 170,000.00 |
| 8. | Future care | 20,000.00 |
| 9. | Future counselling | 900.00 |
| 10. | Future loss of employers’ superannuation contributions | 15,000.00 |
| 11. | Future surgery | 5,500.00 |
| 12. | Future medical and pharmaceutical expenses (agreed) | 3,000.00 |
| 13. | Future travelling expenses | 1,250.00 |
| 14. | Fox v Wood | 853.45 |
| $ 483,712.91 | ||
| Less WorkCover refund | 6,756.13 | |
| $ 476,956.78 |
The second plaintiff’s action is founded on s 3 of the Law Reform (Husband and Wife) Act 1989:
“Where a person causes injury to another by wrongful act, neglect or default, . . . he shall be liable in damages to the wife of the injured person for loss or injury suffered by her as a result of the loss or impairment of the consortium of husband and wife.”
The section goes on to provide to the effect that damages are to be assessed in the same manner in a claim by a husband for damages in tort for loss or impairment of consortium.
It was held in Parker v Dzundza [1979] Qd R 55 that damages for loss of consortium were recovered only for the duration of the marriage. It seems the plaintiffs finally separated at the end of 1995. There is no evidence as to when the marriage was dissolved, although it was at the trial.
The second plaintiff no doubt suffered loss of consortium on account of the plaintiff’s injuries. Having regard to the duration of the marriage however, the award can only be a modest one. I award $5,000.00.
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