Gloux v W M C Resources Limited - [2000] WADC 62

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GLOUX -v- W M C RESOURCES LIMITED [2000] WADC 62

CORAM: COMMISSIONER STAVRIANOU

HEARD: 13, 14, 15, 16, 17 AND 20 DECEMBER 1999

DELIVERED : 2 MARCH 2000

FILE NO/S: CIV 2645 of 1998

BETWEEN: MARCEL JEAN MARIE GLOUX
Plaintiff
AND
W M C RESOURCES LIMITED
Defendant

Catchwords:

Employer - Duty of care - Injuries alleged to have been sustained in course of employment - Mine accident - Claim fails - Turns on own facts.

Legislation:

Nil

Result:

Judgment for defendant.

Representation:

Counsel:

Plaintiff: Mr I L K Marshall
Defendant: Mr P G McGowan

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: McAuliffe Schwikkard

Case(s) referred to in judgment(s):

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Council of the Shire of Wyong v Shire and Others (1979-1980) 146 CLR 40
Hamilton v Nuroof WA Pty Ltd (1956) 96 CLR 18
March v Stramare (1990-1991) 171 CLR 605
McLean v Tedman (1984) 155 CLR 306

Case(s) also cited:

Castro v Transfield (Queensland) Pty Ltd (1987) 57 ALJR 619
Kondis v State Transport Authority (1984) 58 ALJR 531
Poderbersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Turner v The State of South Australia (1982) 56 ALJR 839
Vozza v Tooth & Company Ltd (1964) 112 CLR 316

COMMISSIONER STAVRIANOU:

Introduction

The plaintiff claims damages for personal injuries suffered by him in two accidents which occurred in the course of his employment with the defendant.
On 15 April 1994 the plaintiff was injured whilst working underground as a scraper operator at the North Royale Gold Mine operated by the defendant near Norseman. The plaintiff’s case is that he ran to avoid falling rock, slipped and injured his knee and back.
The second accident occurred on 19 February 1997 when the plaintiff was mowing the lawn of a house owned by the defendant. The plaintiff was acting as a maintenance officer at the time and had been certified fit for light duties. The pleaded case was that the plaintiff experienced back pain, lost his balance and fell to the ground.
Liability and quantum are in issue in relation to each accident.

The issues and pleadings

The plaintiff claims damages for breach of contract and negligence.
The contractual claim is based on a plea that there was a term of the contract of employment between the plaintiff and the defendant and/or it was the duty of the defendant that:
"4.1The Defendant would take all reasonable precautions for the safety of the Plaintiff whilst he was engaged in the said employment;
4.2The Defendant would not expose the Plaintiff to a risk of damage or injury of which it knew or ought to have known;
4.3The Defendant would provide a safe place of work for the Plaintiff;
4.4The Defendant would provide a safe system of work for the Plaintiff."
In relation to the claim in tort the plaintiff alleges that as a result of the employment the defendant owed the following duties:
"5.1To take all reasonable precautions for the safety of the Plaintiff whilst he was engaged in the said employment;
5.2Not to expose the Plaintiff to a risk of damage or injury of which it knew or ought to have known;
5.3To provide a safe place of work for the Plaintiff;
5.4To provide a safe system of work for the Plaintiff."
In relation to the first accident the particulars of breach of contract and negligence are identical and are that the defendant:
"12.1failed to take all reasonable precautions for the safety of the Plaintiff in that the Defendant;
12.1.1required the Plaintiff to work on the scraper hoe at the bottom of the stope on the sub-level between levels 7 and 9 when another miner and a scraper driver were carrying out mining operations in the stope about 60 meters above the Plaintiff which was likely to cause rocks to fall to the bottom of the stope;
12.1.2required the Plaintiff to work in dangerous ground conditions in that: -
12.1.2.1the stope was located at about 60° angle from the floor of the sub-level between level 7 and level 9 of the Defendant's North Royale Mine;
12.1.2.2porphyry intrusions were present in the rock body of the stope which have a tendency to burst;
12.1.2.3there was no effective means of communication between the Plaintiff and the machine miner and scraper driver carrying out mining operations in the stope above him;
12.2exposed the Plaintiff to risk of damage or injury of which it knew or ought to have known in that the Defendant:-
12.2.1with the knowledge that the mining operations in the stope would cause rocks to fall to the bottom of the stope, required the Plaintiff to work on the scraper hoe on the sub-level at the bottom of the stope;
12.2.2failed to provide an effective means of communication between the Plaintiff and the machine miner carrying out mining operations in the stope above the Plaintiff;
12.3failed to provide a safe system of work for the Plaintiff in that the Defendant: -
12.3.1instructed the Plaintiff to work on the scraper hoe at the bottom of the stope on the sub-level when a machine miner and a scraper driver were carrying on mining operations in the stope about 60 metres above the Plaintiff which was likely to cause rocks to fall to the bottom of the stope;
12.3.2failed to provide an effective means of communication between the Plaintiff and the machine miner and the scraper driver carrying out mining operations in the stope above the Plaintiff;
12.3.3failed to carry out effective and adequate ground support with the knowledge that porphyry intrusions were present in the stope which have a tendency to burst;
12.3.4failed to implement any or any adequate safety policy for prevention of injuries to the miners including the Plaintiff;
12.3.5failed to instruct or warn the Plaintiff as to the risk of injury when working at the bottom of the stope when mining operations were being carried out above him which was likely to cause rocks to fall to the bottom or the stope;
12.4failed to provide a safe place of work for the Plaintiff in that the Defendant:
12.4.1instructed the Plaintiff to work on the scraper hoe at the bottom of the stope on the sub level when a machine miner and a scraper driver were carrying on mining operations in the stope about 60 metres above the Plaintiff which was likely to cause rocks to fall to the bottom of the stope;
12.4.2failed to carry out effective and adequate ground support with the knowledge that porphyry intrusions were present in the stope which have a tendency to burst."
At trial the allegations concerning the porphyry intrusions were not pursued.
In relation to the second accident the following particulars of breach of contract and negligence are alleged:
"12.5failed to take all reasonable precautions for the safety of the Plaintiff in that the Defendant with the knowledge that the Plaintiff was suffering with injuries sustained by him in the first accident and that he was certified by his medical practitioners fit only for light duties:-
12.5.1required the Plaintiff to carry out lawnmowing duties which included loading and unloading the lawnmower to and from the back of the utility truck, walking on uneven surfaces with overgrown vegetation;
12.5.2failed to obtain a functional capacity assessment on the Plaintiff prior to requiring him to carry out lawnmowing duties;
12.5.3failed to provide a lifting device for loading and unloading of the lawnmower to and from the back of the utility;
12.6exposed the Plaintiff to a risk of damage or injury of which it knew or ought to have known in that the Defendant with the knowledge that the Plaintiff was suffering with injuries sustained by him in the first accident and that he was certified by his medical practitioners fit only for light duties:-
12.6.1required the Plaintiff to carry out lawnmowing duties which included loading and unloading the lawnmower to and from the back of the utility truck, walking on uneven surfaces with overgrown vegetation;
12.6.2failed to obtain a functional capacity assessment on the Plaintiff prior to requiring him to carry out lawnmowing duties;
12.6.3failed to provide a lifting device for loading and unloading of the lawnmower to and from the back of the utility;
12.6.4required the Plaintiff to carry out lawnmowing duties when the atmospheric temperature was about 40C;
12.7failed to provide a safe system of work for the Plaintiff in that the Defendant:-
12.7.1in breach of medical advice to provide the Plaintiff duties of light nature instructed the Plaintiff to carry out lawnmowing duties on the Defendant's properties which required loading and unloading the lawnmower to and from the back of the utility truck, walking on uneven surfaces with overgrown vegetation;
12.7.2failed to provide a suitable lifting device for the loading and unloading of the lawnmower to and from the back of the utility truck;
12.7.3failed to obtain a functional capacity assessment on the Plaintiff prior to requiring him to carry out lawnmowing duties;
12.7.4failed to warn the Plaintiff as to the risk of injury and/or aggravation of the injuries sustained by him in the first accident in carrying out lawnmowing duties;
12.8failed to provide a safe place of work for the Plaintiff in that the Defendant:-
12.8.1instructed the Plaintiff to carry out lawnmowing duties when the atmospheric temperature was about 40°C;
12.8.2required the Plaintiff to walk on uneven surfaces pushing the lawnmower when he was certified fit to carry out only light duties."
The plaintiff alleges that as a result of the first accident he sustained injury to his left knee, nervous shock and the aggravation of a pre-existing asymptomatic degenerative back condition.
In relation to the second accident the plaintiff alleges that he sustained a back injury and bruising to various parts of the body.
The plaintiff claims damages under the following heads:
1.General damages.
2.Loss of earning capacity both past and future.
3.Loss of superannuation benefits both past and future.
4.Gratuitous services.
5.Special damages.
The defendant admits the terms of the contract of employment relied upon by the plaintiff and pleads that they were subject to an implied condition or requirement:
"(a)that the Plaintiff would exercise reasonable care and skill for his own safety and, or alternatively;
(b)that the Plaintiff would act in accordance with instructions given to him by the Defendant as to the method of working in the mine from time to time."
The defendant pleads that the plaintiff acted in breach of an express instruction given to him by Mr McEwan and further pleads that in breach of the implied terms the plaintiff proceeded beyond the manway without:
"(a)establishing contact with the scraper driver and air leg miner working in the stope and/or alternatively;
(b)ensuring that it was safe to proceed beyond the manway prior to doing so."
The defendant further pleads in relation to the first accident that the plaintiff was guilty of contributory negligence in that he:
"11.1acted contrary to instructions not to proceed beyond the manway without first making contact with the scraper driver and the air leg miner working in the stope.
11.2knew or should have known by reason of his experience in the industry that he would be exposed to a risk of injury by proceeding past the manway without first making contact with the scraper driver and the air leg miner working in the stope.
11.3failed to take precautions for his own safety in the circumstances."
The defendant denies that the plaintiff has suffered any injury or disability in either accident and further pleads that the plaintiff has feigned or exaggerated his disabilities. The defendant also pleads that in relation to the second accident any injury, loss and damage were caused or contributed to by a pre-existing degenerative condition of the plaintiff's spine.
By the reply the plaintiff joins issue with the defendant on its defence and specifically denies that:
1.He has feigned or exaggerated his disabilities.
2.That on 15 April, 1994 David McEwan instructed him not to proceed beyond the manway.

The plaintiff's history

The plaintiff was born on 13 August 1950 in France. He is married and has two adult sons. He completed his formal schooling at the age of 13 years and then joined the workforce. He undertook different types of employment including positions within the meat industry, building industry and salt production. He also did some compulsory army service.
The plaintiff migrated to Australia and on 23 October1974 arrived in Melbourne. Shortly thereafter he obtained employment with Coles as a forklift driver. He remained with Coles for approximately 5½ years and during that period he also worked as a cleaner on a part-time basis seven nights a week, three hours per night.
The plaintiff became aware of opportunities in the mining industry and therefore in January 1980 he travelled to Western Australia with the intention of securing employment in Tom Price. On the way to that town he found out that there was employment available with the defendant and on 31 January 1980 he began work with it as a greaser/ventilation/sanitation worker. After two months he commenced employment as a scraper driver and continued working in that position until 7 December 1990 when he was retrenched with about 150 other employees. After his retrenchment he was able to secure employment at a petrol station and thereafter at a motel where he remained until about January 1992 when he was employed by Central Norseman Gold Corporation Ltd. Throughout the hearing reference was made to the Central Norseman Gold Corporation Ltd. Some of the documents describe the plaintiff’s employer as that corporation. I was informed by Counsel that it was unnecessary to consider the relationship between Central Norseman and the defendant. In any event it was admitted that at all material times the plaintiff was employed by the defendant.

The mine scene, terminology and dramatis personae

On the 15 April 1994 the plaintiff was working for the defendant at the North Royal Mine. The mining method that was being utilised was an open stoping method using random ore pillars and rock bolts to support the hanging wall. A stope is an open area of ground within a mine which follows the shape of the ore body.
On the day of the first accident both the plaintiff and Adrian Scott were working as scraper drivers in the mine. Peter Allen was an airleg miner. David McEwan was the shift boss. The plaintiff was working on a sub-level. Mr Scott and Mr Allen were working on the level above the plaintiff in stope 9-310. The numeral 9 designates the level. The 310 indicates the distance from the mine shaft being 310 metres on the survey surface grid. The vertical height between the sub-level and the stope was approximately 20-25 metres. Access between the sub-level and the stope was via a series of ladders which were approximately 30 metres high.
Mr Allen’s duties as an airleg miner were to drill into the wall using an airleg machine preparatory to blasting. The process was that he would drill holes and charges would be inserted and fired at the end of the shift. Ore broken in this way by the miner was then moved in one or more stages using electric scrapers to a vertical or near vertical opening known as an ore pass from the stoping area to the level below. A steel structure, known as a chute, incorporating a door to control the flow of ore out of the pass was installed at the bottom of the pass to control the loading of a train which then transported ore to the next stage for removal from the mine. The scraper gully is the slot below the mining area to collect broken ore and to provide a path along which to pull ore into the ore pass.
A scraper consists of double drum winches powered by an electric motor. Both drums turn in the same direction but with the steel rope wound in different directions so that as one drum winds its rope in, the other drum is unwound. Between the ropes is a hoe which acts like a bulldozer blade. As the hoe is pulled forwards (using the front rope), it pushes broken rock in front of it towards the operator. The other rope (the tail rope) is attached to the back of the hoe and is used to draw the hoe back to the start of its run. Both front and tail ropes are held in position by a series of pulleys or scraper blocks which are attached to the rock wall using a pin. The location of the pulley is changed so that the hoe is able to clear different areas. The scraper is operated by levers from a control area which is a fixed location. There is no cab but an operator would usually sit behind the control levers.
The upper scraper operated by Mr Scott pulled quantities of dirt and ore from the face on the upper level to the edge of the rise and it then rolled into the gully (sub-level) below some distance from the operating position of the bottom scraper. The plaintiff then used his scraper to scrape the ore to the ore pass. The ore pass was approximately 10 metres in front of the plaintiff’s operating position. Between the ore pass and the pin were the ladders (in the manway) which provided access to the upper level. Piles of ore are described as rills. There was a steep rill between the sub-level and the level above.

The plaintiff’s evidence as to the first accident

The plaintiff’s evidence in chief was adduced by statement supplemented by oral evidence. He told me that on the day of the first accident he commenced work at 8.00 am. He reported to his shift boss David McEwan and foreman Tommy Jackson. He was given a plod card (time sheet) and asked to continue scraping at the sub-level between levels 7 and 9 at stope 310. After about an hour of scraping it became necessary to move the scraper block to a more distant pin and accordingly the plaintiff walked forward 40-50 metres from the scraper operating position. In doing so he went past the ore pass and manway. Before doing so he called out to Mr Allen "it’s okay?" to which Mr Allen responded "Yes". He told me that it was common practice to communicate with the miners working above to make them aware that he was going into the sub-level under the rill and therefore not to do anything which would make the broken rocks fall from the rill above. The plaintiff was wearing a helmet with an attached miner’s light.
In cross examination the plaintiff told me that he knew what Mr Scott was doing and that Mr Scott was moving material down. He told me that he made no attempt to contact Mr Scott to see if it was safe to go where the hoe was operating. In referring to Mr Scott he said (T87):
"And Mr Scott was the one that you had to make sure either wasn’t operating his scraper or that there were piles of rock near where you wanted to go?---That’s right.
And only by asking Mr Scott, could you be sure about that?---Because Peter Allen asked Mr Scott, you see."
He subsequently told me that on the morning of the accident he spoke to Mr Scott and therefore had reason to believe Mr Scott would not be working in the level above him. In re-examination he was asked about the conversation and told me that nothing was said about scraping. He then told me that Mr Scott told him that he would not be in the stope for the next couple of hours because he had something else to do.
The plaintiff told me that as he was in the process of moving the block to the next pin position he heard a noise. He told me that there was a bit of dust and that a couple of small rocks fell down hitting him on his hard hat. The plaintiff then turned and started to run back to the scraper operating position and had run only a few metres when he slipped fell down and injured his knee. He looked back and saw about 15 tonnes of loose rock fall from above. As he fell he called out to Mr Allen who then came down to the sub-level with Mr McEwan. The plaintiff was taken by stretcher from the sub-level and then by ambulance to Norseman Hospital.

The plaintiff told me that after the first accident he experienced very sharp pain in his left knee which is still present. The nature of the pain had not changed since the accident and the plaintiff has taken medication and had a number of surgical procedures including arthroscopies and a knee reconstruction. The plaintiff told me that he was capable of employment which did not involve lifting and was essentially of a clerical nature. He has applied for forty jobs but been unsuccessful in securing employment.
In June 1994 the plaintiff resumed light duties with the defendant. The plaintiff told me that in early 1995 he went underground to work as a scraper operator but could not continue for more than a few days both physically as well as emotionally. The plaintiff was then given a new position as a maintenance technician and required to carry out gardening duties which he continued to perform until the date of the second accident. Thereafter he had some time off work and then commenced office duties which he carried out until 23 May 1997 when he was retrenched. He has been involved in work trials and a rehabilitation program but effectively has not worked since he was retrenched.
In his statement the plaintiff particularised a number of problems and difficulties which he has experienced since the accident. The injuries not only have affected his work capacity but also have effected his enjoyment of life and his ability to engage in a range of social, sporting and recreational activities.

Other evidence as to the first accident

Peter Donald Allen is an airleg miner employed by the defendant and has been so employed for a total of approximately 17 years. He told me that on the day of the accident he was working on day shift, which commenced at approximately 8.00 am. He told me that he was working with Adrian Scott, a scraper operator also employed by the defendant. He had been working with Mr Scott for a few months prior to 15 April 1994 and with the plaintiff for several weeks. He gave evidence that initially Mr Scott was not working with them and that the plaintiff did the scraping on the upper and lower levels.
Mr Allen told me that on the day of the accident he was working in the 9-310 stope of the mine. It was his job to operate an airleg machine which he told me is hand operated and sits on a steel ladder. His job was to bore holes in the ore face and then place a charge in the hole and arrange for its detonation after the area had been cleared.
Mr Allen told me that Mr Scott was working approximately 30 metres from him as a scraper operator. His job was to scrape the rock which Mr Allen had broken. The plaintiff was working on the sub-level below and it was his job to scrape the broken rock to a mill hole.
Mr Allen, Mr Scott and the plaintiff had been performing the same duties for a number of days prior to the 15 April 1994. It was Mr Allen's evidence that he told the plaintiff on a number of occasions prior to 15 April 1994 not to go beyond where Mr Allen was working without first making contact with him so that he could stop his machine. Mr Allen's evidence was that he told the plaintiff that if he wanted to go past the mill hole for any reason, such as to repair the rope for his scraping machine, to yell out and he would then stop his machine. He told me that the reason the plaintiff needed to contact him was because of dirt and loose rocks falling towards the sub level upon which the plaintiff was working.
On 15 April 1994 Mr Allen had been working for about an hour when he turned off his machine to have a cigarette. He was talking to David McEwan the shift coordinator. He had not been there for long when he heard the plaintiff cry out. There was no other noise in the stope at the time. Mr Allen then walked along the stope and down to the sub-level where the plaintiff was working. Mr McEwan accompanied him.
Upon arrival at the sub-level Mr Allen found the plaintiff some distance from his scraper machine and about midway between his scraper machine and the scraper block. It was his evidence that the plaintiff told him that he had tried to move the scraper block, heard rocks coming and tried to run away but had twisted his knee.
In his statement produced in evidence dated 4 November 1999 Mr Allen said he could not recall the plaintiff asking at any time on 15 April 1994 prior to the accident to go beyond where he was working. In cross-examination Mr Allen gave evidence that the plaintiff had called out to him, "It's OK and he then answered 'Yes'." It was Mr Allen's evidence that by answering 'Yes' he was signifying that it was okay for the plaintiff to advance past the area of the drill and to fix his pin or whatever he had to do.
Mr Allen told me that he could not see any evidence of any significant rock fall when he went to where the plaintiff was after the accident. He did not hear any rocks falling. It was Mr Allen's evidence that when his drilling machine and Mr Scott's scraper were in operation it was impossible to communicate by voice. Mr Scott and Mr Allen were wearing earmuffs at the time.
It was Mr Allen's evidence that it was impossible to make visual contact with Mr Scott as he was concealed behind a pillar. This made it impossible for Mr Allen to communicate with Mr Scott by miner's lamp. He agreed that it was important that when the scraper is operating that the plaintiff or indeed anybody keeps well clear of the area in the sub-level where the ore will fall to. In cross-examination he agreed that he received no specific training from the defendant in relation to the particular work system adopted on 15 April 1994.
Adrian Stephen Earl Scott is an underground diesel operator who was employed as an underground scraper operator at the mine on the day of the accident. He has worked in underground mining for approximately 10 years in total and for several years before 1994.
In April 1994 he was working in a team with Peter Allan. He told me that he worked with the plaintiff on numerous occasions prior to 15 April 1994. On the day of the accident he knew that the plaintiff was working on the sub-level below where he and Peter Allan were working. On that day Mr Scott was clearing dirt and rock with his scraper to the sub-level where the plaintiff was working. Mr Scott told me that the plaintiff only worked in the sub-level when the dirt and rock which had been dislodged by firing had built up to a certain level. The plaintiff was therefore not working in the same area as Mr Allan and Mr Scott every day but would work there on and off when needed as well as working in other areas in the mine.
Mr Scott told me that on the day of the accident he was working between levels 7 and 8 of the mine. He told me that at the commencement of the shift he would water down the dirt in the area in which he was working and that this task would take approximately 20 minutes. After watering down he would then pull out the ropes of his machine and set up the machine which would take about 15 minutes. Within 30 minutes of commencing his shift he would be operating his scraper machine.
On the day of the accident Peter Allan was drilling some distance from him. He could not see Mr Allan although he was able to communicate with him by flashing his cap light. Mr Scott told me that Mr Allan, the plaintiff and himself had been working together in the same area of the mine for several weeks if not months and he had used the method of communicating by flashing of cap light on numerous occasions. On the day of the accident Mr Scott had stopped his scraper machine and was walking around on the upper level when he heard the plaintiff cry out. Mr Scott then went down the access way to the sub-level below and there found the plaintiff with his back to the wall holding his leg up. Mr Scott told me that the plaintiff said words to the effect that he was changing the block position when he heard a rock coming down and turned to run when he hurt his knee.
Mr Scott said that he saw no evidence of a rock fall and certainly no evidence of a 15 tonne rock fall. He did not hear a big noise or a sound such as he would expect if 15 tonnes of rock fell in the area in which he was working prior to hearing the plaintiff cry out.
In the course of cross-examination reference was made to an accident report prepared by a Mr Hemmingway. The report was not produced but an extract was put to Mr Scott which dealt with what Mr Scott is alleged to have said to the plaintiff concerning scraper operations on the day of the accident. Mr Scott told me he had not spoken to Mr Hemingway. Mr Scott said that his recollection was that he did not think the plaintiff was going to be in the sub-level for two hours. In cross-examination Mr Scott was asked if it was possible that he told the plaintiff that he would not be scraping down for at least two hours. He agreed that it was possible.
An extract of the report of Mr Hemmingway appears in Mr Carr’s report of the 29 October 1999 and is as follows:
"Adrian told Marcel 'he would not be scraping dirt down for two hours' but, “he would be scraping to a stockpile area just in front of his scraper."
Thomas William Jackson gave evidence that between 1984 and 1986 he was a foreman at the mine. He told me that two levels of scraping operations were being carried out in the 9-310 stope when the plaintiff sustained his injury. The plaintiff was working on the bottom level of the stope with another scraper driver and miner working on the level above him.
The evidence of Mr Jackson was that the plaintiff had been instructed when working in such conditions not to proceed beyond the man way without first establishing contact with the men working above. He had provided instructions to the plaintiff in this respect. Mr Jackson gave evidence that there was a safety rule book in existence at the mine and that it contained only general instructions concerning safety and did not cover the particular method of mining operation adopted on 15 April 1994. He agreed that it would have been much safer to have the plaintiff assisting Mr Allan without having a two stage scraping operation with one man scraping above and one man scraping below.
David McEwan is a miner and gave evidence on behalf of the defendant. On the day of the accident he was employed as a shift boss. He had the day-to-day supervision of the plaintiff and told me that on the particular day the plaintiff was working on the 9-310 stope. Mr McEwan told me that at the commencement of each shift he would distribute daily timesheets, provide instructions to the men as to where they would be working and what they would be required to do as well as any special instructions for that day.
During the morning of 15 April 1994 Mr McEwan was doing his rounds checking on the men he was required to supervise. He saw Peter Allan working in the 9-310 stope. Mr Allan stopped his machine and sat down to talk to him. He told me that when Mr Allan stopped his machine the area was very quiet. He could hear someone digging around at the bottom of the stope. He then heard an air scraper start up which is characterised by a high-pitched howl. He told me that Adrian Scott was working approximately 30 metres away and he believed that it was Mr Scott’s scraper that started up. Shortly thereafter he heard some yelling from the bottom of the stope. He could not understand any words as it was more in the nature of a cry. He then went with Mr Allan down to sub-level below using the access ladders. When he arrived on the sub-level he saw the plaintiff sitting on the ground resting with his foot on the wall. He told Mr McEwan that he had hurt his knee.
Mr McEwan did not see anything to indicate that there had been a rock fall. He told me that if there had been a 15 tonne rock fall this would have been significant as the stope was narrow in that area, approximately 1.2m wide and any rock fall of that size would have been very noticeable. He told me that the plaintiff was evacuated from the mine by mine rescue personnel. He told me that the combination of the use of voice and cap lights was the established and standard method of communication at this mine and generally for underground mines in Western Australia. At the start of the shift he had told the plaintiff not to proceed beyond the man way in the stoping area until he had made contact with the scraper operator working above him. It was necessary to do so to ensure the scraper operator had ceased operation so there was no risk of falling rock. He told me that the plaintiff was an experienced scraper driver and would not have needed to be told every day not to go into the area without making contact with the man working above him.
In cross-examination Mr McEwan told me that he had worked at the mine for two years prior to the accident. He told me that the bottom scraper operator was at risk if he was in an area when ore comes down if the man above starts scraping.

Expert evidence

Errol Christopher McDonald is a mining engineer who gave evidence on behalf of the plaintiff. He currently practices as a mining engineer providing mine planning services for surface and underground mining. Mr McDonald told me that the ore, having been blasted by Mr Scott and scraped by Mr Allan slides down the slope to the sub-level.
Mr McDonald told me that in his view the method of mining should have been revised so that the sub-level was filled to a higher level so that the walls could be examined and if necessary repaired. He was asked about simultaneous scraping by two scraper operators as was occurring on the day of the accident and told me that very strict procedures were necessary as there was a high probability of material at the top level which had not been cleared, becoming dislodged and thereby causing a hazardous situation. In his view the communication system in the mine was inadequate. He told me that it was very hazardous to move along the scraper gully as the person involved would be walking in an open area in an unscaled gully which was not regularly inspected and scaled.
Mr McDonald told me that a person in the situation of the plaintiff should not have been working in the sub-level given the mining operation that was being carried on. Mr McDonald agreed that scraper operation being performed on the upper level presented no hazard to the plaintiff if the plaintiff remained in his usual location at the scraper control box.
Mr McDonald told me that it would have been a relatively simple procedure to install a system of signal lights so that the operator at the higher level could indicate to persons below that he was using his scraper. Similarly a signal light and/or hooter at the upper scraper could have enabled the scraper at the lower level to request operators on the upper level to cease operations.
Mr McDonald told me that the plaintiff should not have been working in the area where there was a possibility of any object falling or rolling down upon him.
John Carr is a mining engineer and was called on behalf of the defendant. He is a graduate from the South Australian Institute of Technology and holds a Bachelor of Mining Engineering. He has worked in the mining industry since his graduation in 1986 and is currently the senior mining engineer at Mt Isa Mines. He told me that he had not seen an operation involving one miner and two scraper operators operating at different levels. His view was that provided a job-safe analysis was done and has identified and procedures put in place it should be perfectly safe.
He was asked is the procedures which would either eliminate or minimise the hazard of mining operation and said (T249):
"The man who wanted to enter into any hazardous situation would have a duty of care to make sure of the nature of that hazard. He wouldn’t enter into it if it was dangerous. In this circumstance he would contact the blokes above and make sure that they were not going to be doing something that could cause a hazard to him. So quite often he would call - say if he spoke to the miner, the miner would look around below him and call if it was safe or, if he saw a danger, he might say, ‘Just wait there a couple of minutes’, and he might go and make the area safe and then say its okay to proceed. In this situation he should do that with both Peter Allan and Adrian Scott."
He considered that if any of the machines were operating it would be difficult over a long distance to ensure adequate verbal communication. He considered that if attention could not be attracted by light the miner could walk up the ladder way and speak to the person concerned directly.
He referred to other means of communication and gave evidence that it would cost approximately $1 million to install a radio communication system.
In cross-examination Mr Carr told me that where one man is above the other scraping dirt down the person at the lower level would be at higher risk. In his evidence he said (T258):
"Yes, so you have a situation where a person who must go from time to time for the reasons that you have agreed is at risk going past the area where the broken ore is scraped to come down. He can be at risk so its necessary, you would say, to have communication between the people above and the people below. Is that putting it fairly?---Yes, I think that would be."
Mr Carr told me that it was impractical and effectively contrary to the nature of the mining operation being undertaken that the sub-level be filled. This was because there was no fill available for use in this mine at the sub-level and to in effect stockpile the ore in the sub-level would involve tying up a considerable body of ore otherwise destined for income producing purposes.
Mr Carr told me that 15 tonnes of rock would occupy approximately eight cubic metres.

Evidence as to the second accident

The plaintiff’s evidence as to the second accident was that on 19 February 1997 he commenced work at about 11.00 am. He was mowing lawns using a hand held mower when he felt dizzy, passed out and fell to the ground. He told me the ground was full of weeds and grass up to 40-50 centimetres high. Beyond that there was very little evidence from the plaintiff as to what happened on the day of the accident.
Phyllis Mare Walker is aged 33 years and was from 1995 to 1998 employed by Central Norseman Gold as a Risk Control Administrator and First Aid Officer. She first met the plaintiff in March 1995 when she commenced her employment. At that time the plaintiff was employed as a maintenance technician and she saw him quite regularly. His duties involved mowing lawns in the office area and the housing blocks, moving furniture and setting up for functions and general duties. She told me that the plaintiff was ultimately retrenched in May 1997.
Ella May McBride was employed by Central Norseman Gold Corporation from 1992 to 1997. From February 1996 she was the Human Resource Administrator and supervised the plaintiff whilst he was undertaking the duties of maintenance/utility person. She told me the plaintiff’s duties included gardening and other light work. It was Ms McBride’s evidence that the plaintiff was provided with metal ramps for loading and unloading mowers from the utility. She told me that the plaintiff often complained of back pain during the period that he worked with her and that he also complained of knee pain.
In cross-examination Ms McBride was asked as to whether she had at any stage carried out a functional capacity assessment of the plaintiff. She told me that on 10 July 1996 she wrote a letter via the SGIO to the plaintiff’s specialist (Mr Croser) to clarify that the work that the plaintiff was doing was actually suitable for his condition due to his knee injury. Whilst there is no mention of a requirement to load and unload mowers the particularised duties include mowing, loading rubbish onto a utility and pushing a loaded wheelbarrow. On 12 August 1996 Mr Croser wrote to the SGIO in response to the letter which had been written by Ms McBride in which he opined that the list of duties would appear appropriate for the plaintiff whilst on light duties.

The medical evidence

Stephen Ike Sin Gann is a general practitioner and gave his evidence by telephone link from Norseman. He saw the plaintiff at the Norseman District Hospital on 19 February 1997.
When Dr Gann examined the plaintiff on 19 February 1997 he did not look unwell. He performed an abdominal examination and an ECG which were both normal. His evidence was that there was nothing specific concerning the plaintiff's back. The plaintiff complained that his symptoms were quite severe. There was no obvious trauma however straight leg raising was quite markedly restricted. He was admitted to hospital for bed rest and pain relief. He was prescribed painkillers in the form of capadex and diazepam to relax his muscles. The plaintiff was admitted to Norseman Hospital and thereafter transferred to the Kalgoorlie Hospital. Following discharge Dr Gann saw the plaintiff from time to time regarding back pain and prescribed painkillers.
Dr Gann told me that he had been the plaintiff's general practitioner since 29 January 1991, and had seen him in relation to complaints of low back pain. He had prescribed painkillers for his back pain. Dr Gann told me he had no documentation evidencing time off work as a result of the back pain.
On 16 January 1995 Dr Gann certified the plaintiff fit for his normal duties. He told me that on the 19 January 1995 the plaintiff presented with a history that his right elbow was hit by a scraper pin at work. His right elbow was tender and swollen and there was pain on movement. Painkillers were prescribed and the plaintiff was from 19 January 1995 certified fit for light duties. On 7 February 1995 Dr Gann certified the plaintiff as fit to continue with normal duties but noted on a certificate issued on that date that there was some pain in the right elbow and left knee. There was no attendance thereafter by the plaintiff upon Dr Gann in relation to the elbow injury.
John Lindsay Croser is an Orthopaedic Surgeon who first saw the plaintiff on 19 April 1994. The plaintiff on that occasion presented with a painful left knee. There was a small effusion and an arthroscopy demonstrated a complete tear of the anterior cruciate ligament. There was no meniscal tear. The instability of the knee warranted cruciate reconstruction and he performed this procedure on 17 May 1994. There were a number of further reviews by Mr Croser and by 9 November 1994 the plaintiff upon examination had a normal gait and had no residual swelling. There was a full range of movement, the knee was clinically stable and no further review was arranged.
In a review on 5 May 1995 the plaintiff was unable to walk, run or kneel down. He was walking with a marked limp favouring his left knee and accordingly Mr Croser recommended a further arthroscopy. This was performed on the 25 May 1995 and demonstrated a tear of the posterior part of the cartilage on the inside half of the knee. Mr Croser expected that in consequence the plaintiff would have pain, walk with a limp, and have a restricted range of movement.
On 7 June 1995 Mr Croser certified the plaintiff fit to return to light maintenance work. The plaintiff had a near normal gait and only minimal residual swelling.
On 21 July 1995 he again reviewed the plaintiff at which time he presented with some slight swelling in the peripatella area but with no evidence of instability. The plaintiff was next reviewed on 13 September 1995 when he presented with a most abnormal gait. Mr Croser considered he was suffering from a condition known as chondro-malacia patellae. Mr Croser told me that that was a degenerative process involving the cartilage that normally covers the articular surface of the patella. On 26 October 1995 he performed a further arthroscopy and meniscal tear resection.
At review in November 1995 he noted there was still a small amount of swelling around the knee and recommended the plaintiff remain on light duties until the end of December 1995. The plaintiff was walking with a normal gait and was pain free. In March 1996 a further review took place at which time the plaintiff demonstrated chondro malacia patellae. Upon review in May 1996 there was marked wasting of the quadriceps on the left side. Upon review in November1996 Mr Croser noted the plaintiff’s most significant problem was patella femoral crepitus.
When Mr Croser saw the plaintiff on 9 November 1994 he was satisfied that the reconstruction operation was successful. He was able at that stage to elicit from the plaintiff that he had a full range of movement and effectively was pain free and that the operation had been successful.
By the end of 1994 and again at the end of 1995 it was Mr Croser’s expectation that the plaintiff would be able to return to his pre-accident occupation. The reason why the plaintiff has not been able to return to his pre-accident occupation was because of the chondro malacia patellae which arose after April 1994.
Mr Croser examined the plaintiff on 5 February 1997 at which time there was no indication of any restriction in movement. In relation to the chondro malacia patellae Mr Croser’s opinion was that whilst it may not have been due to the original injury itself it may be due to the subsequent way the plaintiff has used the knee, to the surgery that he has undergone and to his continued muscle wasting. He considered the duties that the plaintiff was performing at the date of second accident were appropriate.
Mr Croser provided a report to the plaintiff’s solicitors dated 14 July1999 in which he opined as follows:
"2.I am of the opinion that the symptoms described by Mr Gloux in his left knee relate to the original injury to this knee on 15 April 1994. Mr Gloux describes ongoing symptoms in his lower back and some features of the examination of his spine suggest organic factors are involved. He demonstrates a restricted range of spinal movement on flexion by 50% and in fact to a similar degree in other directions and yet there is no neurological deficit. His MRI of the lumbar spine performed on 16 April 1997 indicates significant degenerative changes at the L5/S1 level with generalised degenerative changes of the intervertebral discs in the lumbar spine.
It is unlikely that the injury of 19 February 1997 has caused these changes but may well have resulted in some aggravation of the previously quiescent degenerative changes.
3.I am of the opinion that Mr Gloux’s functional disability is in part due to his first accident and in part to his second.
4.I am of the opinion that the symptoms in Mr Gloux’s back are not causally related to his left knee injury but that an altered gait in the presence of spondylitic changes may well further aggravate the situation.
5.I am of the opinion that Mr Gloux will not be able to return to his pre-accident occupation.
6.Purely in terms of work capacity I am of the opinion that Mr Gloux still has an earning capacity for light work where he is able to change positions at frequent intervals and where the duties are not physically arduous. His ability to gain such work is compromised by his history of compensable injuries, his education standard and his age.
7.I am of the opinion that Mr Gloux’s medical condition has established to a degree where an assessment of disability can be made and I am of the opinion that he currently suffers permanent residual disability which I would assess as being of the order of 25% loss of effective use of the left lower limb at or above the knee and 15% loss of effective use of the lumbar spine.
8.Whether Mr Gloux will require medication, medical treatment, hospitalisation etc in the future will be to a large degree dictated by his level of activity and whether he continues to put on weight. It is likely that he will require periodic review of his medical condition particularly with regard to the knee and given that he is currently 48 years of age one would envisage that in the long term he could suffer degenerative changes in the left knee to a greater degree than would have been the case had he not suffered the injury. These may necessitate further surgical intervention in the remote future.”
Jack Faigenbaum is a general practitioner who saw the plaintiff on 29 July 1997 in relation to the condition of his back. Upon initial presentation the plaintiff complained of pain in the cervical, thoracic and lumbar spine. The lower back pain radiated to his buttocks and upon examination all back movements were decreased considerably because of pain. Straight leg raising on the right and left was restricted to 20 degrees. Dr Faigenbaum arranged a CT scan which revealed the presence of a small disk bulge and osteoarthritis. He prescribed analgesics, painkiller and anti-inflammatory medication and recommended physiotherapy.
The plaintiff attended upon Dr Faigenbaum on 22 occasions between July 1997 and 15 May 1998. When he was seen he complained of a painful back which made it difficult for him to work and to sleep. Dr Faigenbaum referred the plaintiff to the Cambridge Pain Management Centre where he was seen by Dr Gee and recommended for an education program as well as psychological counselling and exercise sessions.
In relation to the knee injury Dr Faigenbaum told me that in his view it was aggravating his back injury.
The prognosis in his view was guarded and the plaintiff may be best suited to work such as administration or clerical duties. His impression was that it was extremely unlikely that the plaintiff would return to his pre-accident occupation as an underground labourer, let alone a maintenance technician.
Dr Faigenbaum agreed that the plaintiff was overweight during the time he was seeing him. His records indicated a weight ranging between 103.5 kilograms to 108 kilograms. In his view a weight of between 80 and 90 kilograms was optimum and he was hoping for a weight at that level. In his opinion being significantly overweight was likely to exacerbate the pain that the plaintiff was experiencing both in his back and his knee. Dr Faigenbaum gave evidence that he encouraged the plaintiff to exercise and to lose weight but that nothing happened. In relation to exercise he referred the plaintiff to the Cambridge Pain Management Centre and also to see Mr P Bannon, neurosurgeon. He considered the plaintiff had a fair prognosis.
Anthony James Robinson is a Specialist Orthopaedic Surgeon who first saw the plaintiff on 29 April 1998 upon referral from Dr J Faigenbaum. Upon presentation the plaintiff complained to him of generalised left knee pain which was constant and increased with walking, sitting and twisting. Mr Robinson noted that upon examination there was wasting of the quadriceps and a small effusion. In Mr Robinson's opinion the wasting of the quadriceps meant that the muscle was not being used as it should be resulting in the plaintiff favouring his right leg and not stretching the muscles in the left leg.
Mr Robinson formed the view that the plaintiff had some ongoing synovitis and organised for an MRI scan and technetium bone scan to be performed. The bone scan revealed diffuse synovitis which in Mr Robinson's opinion attracts symptomatology. The MRI scan revealed thinning of the anterior cruciate graft, degeneration of the medial and patella-femoral compartments and possible tearing of the lateral meniscus. In his view the graft was non-functional and he recommended that the plaintiff have further left knee arthroscopy to remove the screws.
The bone scan revealed increased uptake of radioisotope. There was also inflammation of the right sacro-iliac joint and Mr Robinson suspected a condition known as ankylosing spondylitis which he explained was a form of arthritis which usually is detected in young people but can occur in middle age. For this reason he arranged for a HBLAB 27 antigen test.
The thinning revealed on the MRI in Mr Robinson's view was indicative of the graft which had initially been put in, probably having been put in slightly more forward than would be ideal and over a period of time it may have stretched. The degeneration and possible tearing of the lateral meniscus was in Mr Robinson's view necessarily associated with pain on the inner side of the knee and also in front of the knee especially when trying to kneel. There would also be difficulty in walking generally and walking downstairs in particular. A slight limp was consistent.
The prognosis was in Mr Robinson's view guarded because of the presence of the arthritis. As the arthritis got worse there would basically be more pain and probably some swelling. Because of the ligament damage he anticipated that the arthritis would get worse. Pain and swelling were associated with the arthritis getting worse.
In relation to future treatment in a report of 8 May 1998 to the State Government Insurance Office, Mr Robinson outlined further treatment in the following terms:
"I would recommend that he would be considered for further funding as he needs to undergo a further left arthroscopy, chondroplasty, and removal of screws from his left knee. Furthermore he may need to undergo a revision of the anterior cruciate procedure in 3-6 months …".
Having seen the surveillance video taken of the plaintiff on 21 May 1998 he considered the revision procedure of the anterior cruciate was not indicated.
Soni Narula is a Neurosurgeon who examined the plaintiff on 13 August 1999. He took a detailed history during which the plaintiff made no direct reference to back pain associated with the 1994 accident. Mr Narula told me that the preponderance of his report that refers to pain was noting what the plaintiff had told him in consultation. Mr Narula testified that where a knee is favoured there is bound to be compensatory changes in the pelvis which will reflect on the lower back.
It was Mr Narula's opinion that the plaintiff suffers from at least a 10 per cent permanent disability with respect to full function of the thoracicolumbar spine and a 10 per cent permanent loss of function of the cervical spine. In his view the prognosis was guarded. He considered the plaintiff should be able to maintain light clerical work on a full time basis.
The necessity for treatment in the form of analgesics and anti-inflammatories would in Mr Narula's opinion depend upon the frequency and severity of pain.
Mr Narula told me that the MRI scan of the lumbar spine indicated multi level degenerative change the worst of it being at the level of L5 S1. The MRI scan of the thoracic spine showed long-standing degenerative change. The x-rays of the cervical spine whilst showing degenerative changes were in Mr Narula's opinion essentially normal. In relation to the question of objective signs Mr Narula told me that he did not find any significant non-organic signs.
Mr Narula told me that upon examination of the plaintiff he had difficulty in movements of his lumbosacral spine. He said that he had fairly gross limitations given his weight and he took the plaintiff's weight into account. In cross-examination Mr Narula agreed that it was possible for a patient to limit his response to a request made at examination.
John David Hamilton Bell is an Orthopaedic Surgeon who first saw the plaintiff on 10 June 1999. In his view the plaintiff had a permanent disability in his left knee which did not help his spinal problems. As to work capacity he considered the plaintiff was unable to return to his pre-injury occupation as a maintenance technician but that office work, such as a purchasing officer, would be possible for him to perform. In his view the plaintiff was restricted to clerical duties. In cross-examination he told me that the plaintiff was obese and that his muscle tone was not good. In his view the combination of being obese and having poor muscle tone had a considerable impact upon the plaintiff’s problems. He considered that in his view the nature of the injuries suffered by the plaintiff in February 1997 was a soft tissue injury to his back. His view as to the nature of the problems in the plaintiff’s spine was based upon an acceptance of what the plaintiff told him the level of pain was that he suffered.
Andrew Craig Harper is a Specialist Occupational Physician who saw the plaintiff on 5 July 1999. He was asked about the plaintiff’s capacity for work and considered that although the plaintiff was capable of full-time non-manual work, he required retraining in order to facilitate re-entry into the workforce. Mr Harper told me that at the plaintiff’s age and with his past experience, with his level of skills, his competitiveness in the workforce was extremely low and perhaps at the present time he was unemployable in a clerical position in terms of being unable to compete with others.
Mr Harper agreed that the plaintiff was overweight. He told me that the probability of people getting problems in their knees with long-standing excess weight is increased. In relation to problems with the back Mr Harper told me that it was difficult to maintain muscles in good condition if a person is overweight. He did not consider that the severity of the plaintiff’s complaint was such that it could be said with confidence that the knee had been made worse because of the back. In cross-examination Mr Harper told me that the plaintiff’s abnormal gate prior to the 1997 incident aggravated the back pain but agreed that this was premised on the assumption that the plaintiff had an abnormal gait at that time.
Paul Elliott Bannan is a Neurosurgeon and reviewed the plaintiff on 15 August 1997 and 22 August 1997. He was the only medical witness called by the defendant. The plaintiff told him that his main problem was low back pain but that he had diffuse pain from top to bottom. Mr Bannan reviewed a lumbar MRI scan which did not demonstrate any cause for the pain. He also noted that the plaintiff had multi-level degenerative changes particularly at the L4/L5 level.
Mr Bannan provided a report to Dr Faigenbaum on 22 August 1997 in which he stated:
"… there is nothing in the thoracic MR spine to explain his upper pain.
There is no indication for surgery in this patient as he has multi‑level degenerative changes and the multiple non‑organic signs on examination would make one wary."
Mr Bannan was asked to explain the reference to multiple non-organic signs and said that he had performed a number of tests on the plaintiff which were indicative of functional overlay. He noted that the plaintiff was tender to touch on the back extending down to the low back area. In Mr Bannan’s view this was significant as all he was doing was touching the skin on an area of subcutaneous fat so he therefore considered that complaints of pain were not based on any organic pathology. He further told me that when the plaintiff was lying on his back he could lift his legs to about 30 degrees and that such lifting was accompanied by facial grimacing and complaints of pain. When the plaintiff was seated and exactly the same manoeuvre was performed he could lift his legs to 90 degrees. In his view there was an apparent limitation in lifting his legs, which was not based on organic pathology. In describing functional overlay Mr Bannan said:
"The interpretation is in the meaning. We don't know whether it is conscious or a subconscious thing, which represents underlying depression or anxiety or whether he is consciously trying to amplify his symptoms and I never try and make a judgement, I just record it, but it makes me very wary about operating on someone who has got these signs, because by experience, if you operate on people who are exaggerating their symptoms they never do well …"
In his view it was almost impossible to accurately assess the complaints of pain because of the psychological overlay to the presentation. Mr Bannon agreed that soft tissue injuries were not revealed upon plain x-rays, MRI scans or CT scans and that a soft tissue injury was a clinical diagnosis. He agreed with Mr John Bell's opinion that the man's injuries were most likely of a soft tissue nature.

Other witnesses called by the plaintiff

Francine Yolande Gloux

Mrs Francine Yolande Gloux is the wife of the plaintiff. Following the accident in 1994 the plaintiff looked tired to her and he would often sit down. She told me that prior to the accident the plaintiff was a strong man and thereafter he was quite miserable. She told me that before the accident he was involved in a number of activities including running and abseiling. She gave evidence that following the accident the plaintiff had become worse and argued with their two children.

Paul Crane

Paul Crane is a Senior Mining Surveyor employed by the defendant and has been so employed since August 1994. He gave evidence that he certified a plan of the North Royal Mine on 10 August 1999. He gave evidence that the plan was the most up to date survey plan of the mine which was available.

Observations as to witnesses

The plaintiff gave evidence by written statement dated 9 December 1999 which was supplemented by oral evidence. I was not impressed with the plaintiff’s evidence and I am not prepared to act generally upon what he told me. In my view his evidence was unreliable and I gained the distinct impression that he was concerned to ensure that anything he said did not damage his case. In my view he demonstrated marked caution in answering questions concerning prior injuries. His evidence was altogether unsatisfactory. There are a number of factors which have caused me to come to the view which I have concerning the plaintiff’s evidence.
1.The plaintiff’s memory concerning his complaints of back pain before the date of the first accident was very poor. He told me that he had never had problems with his back before April 1994 and did not have to see a doctor concerning his back and had never had time off work as a result. The plaintiff was cross-examined at length in relation to his prior back injury.
The plaintiff was seen by Mr Colin Hooker an Orthopaedic Surgeon in July 1997. The plaintiff gave a history to him that for several years he had experienced pain in his lower back with heavy work, that he had consulted a doctor on several occasions over the years and that he was off work on one occasion for about six days with the pain. The plaintiff was pressed in cross-examination to identify when it was that he had the period off work. The plaintiff told me that the occasion was not in 1995. When pressed he agreed that it was before 1994.
The result of this part of the cross-examination was that the plaintiff accepted that he had suffered back pain before the date of the first accident.
2.In or about early 1995 the plaintiff returned to his employment working underground with the defendant. In his statement the plaintiff said:
"In early 1995 I went underground to work as a scraper operator but I could not continue for more than a few days both physically as well as emotionally …".
Further in his evidence the plaintiff told me that he was overcome by nightmares and "couldn’t hack to do underground any more."
In cross-examination it was revealed that the plaintiff had in fact been involved in an accident underground in January 1995. The evidence establishes that the plaintiff suffered a soft tissue injury to his right elbow when he was struck by a scraper pin whilst working underground. The plaintiff told me that he was unable to recall the incident.
He was unable to recall the incident involving the scraper pin and denied that the problem with the right elbow was the reason he ceased to work underground.
In cross-examination the following exchange occurred concerning the incident:
"What, are you saying you don’t recall the incident?---Not really.
Sorry?---No I don’t.
You don’t recall the incident?---No."
Dr Gann’s evidence was that on 19 January 1995 the plaintiff attended upon him with a swollen and tender right elbow. Dr Gann issued a first medical certificate dated 19 January 1995 in which he certified the plaintiff fit for light duties only as a result of an incident which occurred on 19 January 1995. The description provided was that the plaintiff’s right elbow was hit by a scraper pin at work.
The plaintiff had given evidence that working underground was the job that he loved. I find it altogether unconvincing that he was unable to recall the incident of 19 January 1995 particularly in circumstances when this was the last occasion when he worked underground.
The plaintiff had signed an accident report concerning the incident on the 19 January 1995 but could not recall the incident notwithstanding that his signature appeared on the report.
3.The plaintiff’s evidence essentially was that he was in the sub-level and was in the process of shifting the scraper block to a different pin when he heard a noise above him. There was dust, some small rocks fell, hitting him on his hard hat. He turned and started to run back to where the scraper was located and had run only a few metres when he slipped, fell and injured his knee. He then saw about 15 tonnes of loose rock fall from the rill above. It was Mr Carr’s evidence which Mr McDonald agreed with that 15 tonnes of rock would occupy approximately 8 cubic metres. There was clearly other rock in the sub-level. The sub-level was about 1.2 metres wide. However Messrs Allan, McEwan and Scott all gave evidence that there was no rock fall of that size or fall at all. I prefer the evidence of Messrs Allan, McEwan and Scott to that of the plaintiff.
4.The plaintiff in his statement of 9 December 1999 made no reference to Adrian Scott by name. There is however reference to another scraper operator working at the stope with the miner at the same time when the plaintiff was required to scrap broken rocks at the sub-level. The plaintiff’s written statement was no doubt prepared by his solicitor and it clearly is not controversial that Mr Scott was working at the upper level on the day of the accident. However, the detail as to the conversation on the day of accident with Mr Scott did not come out in evidence until cross-examination. This was clearly an important conversation in the plaintiff’s case. In the plaintiff’s opening reference was made to the conversation with Mr Allen but not to any discussion with Mr Scott. It is clear from the evidence of Mr Allan, Mr Scott and Mr McEwan that Mr Scott was present and working on the upper level on the morning. I prefer the evidence of Mr Scott to that of the plaintiff as to what was said. Given the serious accident which occurred I would have thought Mr Scott would recall if he had told the plaintiff that he would not be in the stope for two hours.
5.In the report of the plaintiff’s expert Mr McDonald he states:
"… He called to the other scraper operator, Adrian Scott but he got no reply. Mr Scott told him he would not start scraping to the lower position for two hours …"
This version was not consistent with what the plaintiff told me occurred. Further in the experts report reference is made to the plaintiff crawling 10 metres after the rock fall. Again this was not the subject of evidence before me.
As well as the above matters I take into account my general impression obtained in seeing the plaintiff give his evidence, his presentation to the various medical practitioners and what is depicted on the video surveillance evidence. The video of 21 May 1998 shows the plaintiff performing a range of physical activities including carrying a television set and a microwave oven. In this regard I note the observations of Mr Robinson and his view as to the necessity for further treatment given the tasks he had seen the plaintiff perform.
The witnesses called by the defendant as to the accident were either employees or had been employees of the defendant. I have no hesitation in accepting that each of the witnesses were objective and were doing their best to accurately recall the facts. They were in my view truthful. They were prepared to make concessions which supported the plaintiff’s case. As examples Mr Allen readily conceded in cross-examination that the plaintiff had communicated with him before the accident and that he had given the okay for him to proceed. Ms McBride told me that the plaintiff soldiered on despite complaints. I would prefer the evidence of each of the defendant’s witnesses wherever there was any departure or inconsistency with the evidence given by the plaintiff.
The expert evidence was generally not controversial. However I am not prepared to accept the evidence of Mr McDonald in relation to alternate methods of communication which he said were available. He accepted that he was not an expert in radio communication. Similarly his evidence in relation to lighting and other methods of communication was not sufficiently precise for me to rely upon. I would prefer Mr Carr’s evidence in this respect and his evidence that a combination of verbal contact and the use of cap lights was the only reasonably practicable method of communication. I similarly would prefer his evidence in relation to the inappropriateness of filling the sub-level. His reasons in relation thereto were logical and reasonable.

Principles applicable to employer’s liability

The applicable legal principles were not in dispute in this action. The duty of an employer is to take reasonable care to avoid exposing its employees to unnecessary risk of injury (Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307-8; Hamilton v Nuroof WA Pty Ltd (1956) 96 CLR 18 at 25). The employer is not the insurer of the safety of the employee and the duty is not an absolute one (Bankstown Foundry Pty Ltd v Braistina (supra) at 307 and 314).
In order to establish liability there are four elements which need to be proved:
"1.That there was a risk of injury which was reasonably foreseeable. (The foreseeability issue).
2.That there were reasonably practicable means of obviating the risk. (The preventability issue).
3.That the employee's injury belonged to the class of injuries to which the risk exposed him. (The causation issue).
4.That the defendant's failure to eliminate the risk showed a want of reasonable care for the employee's safety. (The issue of reasonableness)."
(See Glass, McHugh and Douglas: The Liability of Employers in Damages for Personal Injury (2nd Ed at p14).
In McLean v Tedman (1984) 155 CLR 306 it was made clear that the standard of care expected of a reasonable man required him to take account of the possibility of inadvertent and negligent conduct on the part of others, and so also, an employer is required to take account of such a possibility in the conduct of his employees. At p312 it was said that:
"The employer's obligations in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle, the employer is bound to take care to avoid such a risk. ... The employer's obligation is not merely to provide a safe system of work: it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer ... and in deciding whether an employer has discharged his common law duty to his employee, the court must take account of the power of an employer to prescribe, warn, command and enforce obedience to his commands."
In Council of the Shire of Wyong v Shireand Others (1979-1980) 146 CLR 40, Mason J at p47 considered the question of whether a defendant had breached its duty of care and said:
"In deciding whether there has been a breach of the duty of care the Tribunal of Fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the person. If the answer be in the affirmative, it is then for the Tribunal of Fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the Tribunal of Fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable but, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remained to be considered with other relevant factors."
In March v Stramare (1990-1991) 171 CLR 605 at 622 Deane J said:
"For the purposes of the law of negligence, the question of causation arises in the context of the attribution of fault or responsibility: whether an identified negligent act or omission of the defendant was so connected with the plaintiff's loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it."

Findings and conclusions as to liability in relation to first accident

On the basis of the assessment which I have made of the witnesses called I make the following findings:
1.On the day of the accident the plaintiff commenced work in the mine at 8.00 am.
2.The plaintiff reported to his shift boss Mr McEwan and foreman Mr Jackson. He was given a plod card (time sheet) and asked to continue scraping at the sub-level between the levels 7 and 9 at stope 310. He had been given directions not to proceed beyond the ore pass without first establishing contact with the workers above. The instructions given were adequate.
3.Peter Allen and Adrian Scott were working in the level above that of the plaintiff. They were all experienced mine workers. No instruction was required to be given to them in relation to working on the sub-level. The danger of rocks and other material falling from above when work was being carried out on that upper level was obvious.
4.After about an hour of scraping the plaintiff walked forward 40-50 metres from the scraper operating position passed the ore chute and manoeuvring to change the position of the scraper pulley by moving the pin.
5.Before moving forward the plaintiff called out to Mr Allen "It’s okay?" to which Mr Allen responded "Yes".
6.There was no communication between the plaintiff and Mr Scott on the day of the accident. I reject the plaintiff’s evidence that Mr Scott told him on that morning that he (Scott) would not be working in the upper level for a few hours.
7.There is no way that the plaintiff would see the workers on the level above unless he climbed the ladders to the position at which the inclination of the ore body changed. Until he reached such a position the standard light signals could not be used. Voice communication was the only alternative.
8.The plaintiff injured his knee and then called out to Mr Allen who went down to the sub-level with Mr McEwan.
9.The change to the utilisation of two scraper operators was necessitated by the defendant’s desire to increase productivity. In this way simultaneous scraping at both locations was possible. This was the evidence of Mr McEwan.
10.The plaintiff was in no danger at the sub-level so long as he did not move forward from the scraper operating position. Both experts were agreed on this. However the nature of the scraping method required the pulley to be moved from time to time. Further, rope breakage could occur and in both situations the plaintiff would have been required to move forward from his operating position to attend to the requirement.
11.Fifteen tonnes of rock did not fall as alleged by the plaintiff. The area was quiet before the plaintiff called out. There was no noise of a rock fall heard by the defendant’s witnesses.
12.The plaintiff was taken by stretcher from the sub-level and then by ambulance to Norseman Hospital.
In my view the plaintiff should not have been required to work on the sub-level in circumstances where two men were working above him. The risk of injury from rocks falling from above was obvious. In this case the system adopted of two scraper operators operating at different levels introduced a hazard which was unacceptable. This is particularly so given that the only effective means of communication was by voice or by use of light signals. Both of these systems had their problems. There were noisy machines and the workers concerned all wore earmuffs. Light signalling necessarily depended upon there being no obstruction between the parties seeking to communicate. It was in my view foreseeable that a worker could be injured given the system in place. It was simply altogether a very dangerous situation.
The risk was altogether to great to require a man to work in the sub-level with men above. This was the evidence of Mr McDonald which I accept. Mr Carr said it was safe provided procedures were in place but told me he had never seen a similar system before. I make my finding as to the safety hazard conscious that a scraper operator was safe provided he did not move forward from his operating position. However as soon as he did so the situation was clearly hazardous and dangerous.
I am not satisfied that the injuries sustained by the plaintiff on the date of accident were caused in the manner described by him. I simply do not accept his description of the accident and am not prepared to act on his evidence alone. I have specifically found there was no rock fall as alleged. I am not satisfied that the plaintiff was a truthful or reliable witness. In the circumstances the plaintiff’s claim in relation to the first action is dismissed.

Conclusions and findings in relation to the second accident

The way in which the claim in relation to the second accident proceeds is that the plaintiff experienced severe back pain and lost his balance causing him to fall to the ground. The plaintiff’s evidence was that he felt dizzy, passed out and fell to the ground. There was no evidence of severe back pain being experienced as pleaded.
I accept the submission that the only finding open is that on 19 February 1997 the plaintiff felt dizzy, passed out, fell to the ground and in falling injured his back and neck. The plaintiff described the incident in similar terms to Professor Harper, Mr Narula and Mr Bell. In the circumstance I am prepared to act upon this part of the plaintiff’s evidence. The description of the incident given in evidence by the plaintiff was not the pleaded description of what occurred on 19 April 1997.
The evidence establishes that the temperature on 19 February 1997 was no greater than 35.5C with a temperature ranging between 25.7C at 9.00 am and 31.8C at 12.00 pm. There is no evidence that the temperature was excessive. In any event I do not consider a temperature in that range to be excessive.
I accept the evidence of Ms McBride as to the dealings which she had with the plaintiff between February 1996 and March 1997 whilst she was the Human Resources Manager for the defendant. Ms McBride was clearly sympathetic to the plaintiff’s position and considered that he was well motivated. She impressed me as a truthful witness. The defendant was aware of the problem that the plaintiff had with his knee and attempted to accommodate his return to full time employment.

Sometime towards the end of 1994 the plaintiff was referred for assessment by the Commonwealth Rehabilitation Service which provided reports and recommendations to the defendant concerning the plaintiff’s work capacity. In 1996 the plaintiff was assessed by Brian Edwards & Associates who reported to the defendant on 9 July 1996 that the plaintiff was capable of performing light gardening and maintenance duties.
Whilst Ms McBride did not perform a functional capacity assessment she did indirectly (through SGIO) seek advice from Mr Croser who was in the circumstances probably best qualified to express an opinion being the plaintiff’s treating orthopaedic surgeon. Given the description of the work to be performed I do not consider the omission of loading and unloading mowers from Ms McBrides letter to be of any significance. I consider the defendant’s conduct in this respect to be entirely reasonable and do not accept that there has been in the circumstances any breach of duty in failing to carry out a functional capacity assessment. There was no evidence that such an assessment should in the circumstances have been carried out. I am similarly not persuaded that in requiring the plaintiff to perform lawnmowing duties as particularised in paragraph 12.5.1 of the statement of claim that there was any breach of duty by the defendant. There was no evidence upon which I am prepared to act to make that finding.
I accept that as the date of the second accident the defendant provided a suitable method for loading and unloading the mowers in the form of ramps. This was the evidence of Ms McBride.
I am not satisfied that the plaintiff was being required to work in circumstances giving rise to a claim against the defendant. I am satisfied that a proper functional capacity assessment had been performed and in all the circumstances the plaintiff has not made out his claim in relation to the second accident.
I am not satisfied that any of the alleged breaches have any relationship to what occurred on 19 February 1997. There was no evidence connecting the breaches to the incident. In the circumstances the plaintiff’s claim must be dismissed.

Provisional assessment of damages

In the event I am wrong in dismissing the plaintiff’s claim it is necessary to make a provisional assessment of the damages to which the plaintiff would have been entitled had I concluded the defendant was liable. The approach I take to the assessment of the injuries sustained in the two accidents is that essentially I do not accept that the plaintiff has any significant residual disability arising out of the second accident. I approach the assessment of past and future loss of earning capacity on the basis that loss is attributable to the second accident. My finding in this respect is based upon my non-acceptance of the plaintiff’s evidence. The medical evidence in relation to his back injury essentially was dependent upon an acceptance by the medical practitioners concerning of what the plaintiff told them as to the effects of the injury upon him. I am not prepared to act on that evidence. I am however prepared to act upon the evidence of Mr Croser in relation to the injury to the left knee and the effect of that injury upon the plaintiff’s back. I would assess damages provisionally as follows:

Loss of amenities

I repeat my findings in relation to the plaintiff’s evidence.
In the first accident the plaintiff suffered a severe left knee injury with secondary low back pain. In consequence thereof a number of operative procedures were performed as described by Mr Croser and as referred to in his evidence recited above. The plaintiff is left with a crunching sensation in the left knee with associated pain. He is now able to walk up to two kilometres. The plaintiff’s evidence was that he now has pain in both legs particularly in the left leg and left knee and this severely restricts him.
All medical practitioners agree that weight and lack of exercise are significant factors in the prolongation of the plaintiff’s symptoms. It is the plaintiff’s failure to address the problems that has lad to a maintenance of symptoms.
Mr Croser has identified that the plaintiff suffered a complete tear of the anterior cruciate ligament on 15 April 1994. I accept and find that the plaintiff would have suffered pain as a result and is left with chondromalacia patella. The left knee injury has caused an altered gait which is in the presence of spondylitic changes has aggravated the plaintiff’s previously symptomatic back condition. He is left with a 25 per cent loss of effective use of the left lower limb. As Mr Croser has said the plaintiff has suffered pain and this clearly would have impacted upon his enjoyment of life.
I consider that for pain, suffering, inconvenience, distress and other items generally referred to as loss of amenities the plaintiff would be entitled to an award of $35,000.
The injury sustained to the plaintiff’s lumbar spine in the second accident was essentially of a soft tissue nature. He had problems with his spine before the accident. The evidence of the practitioners who have seen the plaintiff was dependent upon what the plaintiff has told them. I am not satisfied that he continues to suffer any significant degree of disability from the back injury sustained in the second accident. In the circumstances I consider the plaintiff entitled to a modest award of $10,000 in relation to the back injuries sustained in the second accident.

Past Loss of earning capacity

The plaintiff’s claim for past loss is premised on the basis of a net weekly income of approximately $705 as at 15 April 1994. That figure is agreed.
The claim in relation to past loss is made on the following basis:
"3.The plaintiff has received the following net income since the date of the accident:
(a)for the period 15 April 1994 to the 30 June 1994 a period of 11 weeks the sum of $425.00 x 11 = $44,675.00
(b)for the financial year 1 July 1994 to the 30 June 1995 $38,935.00 - $10,305.00 = $28,630.00
(c)for the financial year 1 July 1995 to the 30 June 1996 $31,515.00 - $7,358.00 = $24,157.00
(d)for the financial year 1 July 1996 to the 30 June 1997 $37,651.00 - $9,648.00 = $28,003.00
(e)for the financial year 1 July 1997 to the 30 June 1998 $28,549.00 - $7,269.00 = $21,280.00
(f)for the financial year 1 July 1998 to the 30 June 1999 $28,468.00 - $6,2850.00 = $22,183.00
(g)for the period 1 July 1999 to the 13 December 1999 - a period of 23 weeks and 4 days $377.53 -$81.91 = $296.62
4.The plaintiff’s past economic loss from 15 April 1994 to the 13 December 1999 being the difference between his net income at the time of the accident and his actual net income is as follows:
(a)for the period 15 April 1994 to the 30 June 1994 $705.00 x 11 = $7,755.00 - $4,675.00 = $3,080.00
(b)for the financial year ended the 30 June 1995 $36,660.00 - $28,630.00 = $8,030.00
(c)for the financial year ended the 30 June 1996 $36,660.00 - $24,157.00 = $12,503.00
(d)for the financial year ended the 30 June 1997 $36,660.00 - $28,003.00 = $8,657.00
(e)for the financial year ended the 30 June 1998 $36,660.00 - $21,280.00 = $15,380
(f)for the financial year ended the 30 June 1999 $36,660.00 - $22,183.00 = $14,477.00
(g)for the period 1 July 1999 to the 13 December 1999 - a period of 23 weeks and 4 days $16,617.85 - $296.62 = $16,321.23 rounding it off to $16,321.00
Total economic loss = $78,448.00."
I consider the plaintiff’s calculations in relation to past loss of earnings to be reasonable. Essentially there was no dispute by the defendant as to what the plaintiff’s income has been since the accident and what the tax deducted has been as particularised above. I would assess past loss in the sum of $78,448 as claimed and allow interest on that sum at the rate of 4 per cent per annum in the claimed same of $17,779 resulting in an award for total past economic loss inclusive of interest in the sum of $96,227.
There is also a claim for past loss of superannuation entitlements. There was no evidence in relation to this head of damage. In the circumstances I propose to assess the claim made on a global basis. I would allow past loss of superannuation in the sum of $4,000 inclusive of interest.

Future loss of earning capacity

The plaintiff put his claim in relation to future economic loss as follows:
"1.The plaintiff is 49 years old having been born on the 13 August 1950 and has a future employment life of 16 years.
2.The plaintiff is unemployed and is in receipt of sickness benefits due to the injuries sustained by him in the course of his employment with the defendant on the 15 April 1994 and on the 19 February 1997.
3.At the time of the accident on the 15 April 1994 the plaintiff was in receipt of a net weekly income of an estimated $705.00 net per week.
4.The plaintiff claims that he intended to work in the mining industry until the age of 65 years and would have obtained employment as an underground shift boss, truck driver or bogger driver at the age of 55 years, which jobs do not require heavy duties and would have earned an income at the same level as at the date of the first accident on the 15 April 1994.
5.The plaintiff’s present loss of income is $705.00 net per week.
6.The plaintiff claims future economic loss at the rate of $705.00 net per week for a period of 16 years until the age of 65 years. The multiplier on 6% weekly table of multipliers for 16 years is 543.0.
=$705.00 x 543.0 = $382,815.00."
In my view the plaintiff has a significant retained earning capacity. The evidence of Mr Croser that I accept is that there was a capacity for light duties. Whilst the plaintiff has limited educational qualifications I consider he is an intelligent man who could cope with clerical duties. Indeed his evidence was to that effect. He said he could work for about 20 hours per week in a suitable job that allows him to stand as needed and does not require any lifting, prolonged standing or walking. I do not accept that is the extent of the incapacity. His capacity is greater than that.
I do not accept that he would have continued his employment in the mining industry to age 65. I consider it reasonable to assess loss to age 60 and by when the plaintiff would have left heavier work to an underground miner. The evidence of Debbie Larson who is a Labour Market Economist is to the effect that a Security Officer earns $619 per week and that a general clerk earns approximately $580 per week. Each of these vocations are within the plaintiff’s capacity. Job availability for clerical officers is competitive to good. The availability of security officer work is more limited. At P & O where the plaintiff undertook a trial the weekly rate of pay varied from $576 to $730 per week. I consider in all the circumstances I should approach the matter on the basis that the plaintiff’s net earning capacity would be in the vicinity of $400 per week resulting in a net loss of $300 per week. The figure of $400 per week is the approximate net figure for a general clerk. I would allow the loss for 10.5 years to age 60. The multiplier on the 6 per cent weekly table of multipliers for 10.5 years is 404.65. The calculation is as follows:
404.65 x $300 = $121,395
In view of the plaintiff’s pre-existing degenerative changes to the spine and to take account of the usual contingencies I would further discount the sum by 10 per cent resulting in a net figure of $109,255. To that sum I would add a global sum of $10,000 for loss of superannuation benefits resulting in a total past loss of $119,255.

Past and future gratuitous services

The hourly rate for gratuitous services was agreed in sum of $12 per hour. There was no evidence from the plaintiff concerning same I would make no allowance in relation to past and future gratuitous services. There was no evidence in relation to the necessity for such services to be rendered or that they had been rendered in the past. Accordingly I make no allowance.

Schedule of future medical expenses

I would make a small allowance of $1,500 to cover future medical treatment including medication and the possibility of attendances upon practitioners.

Fox v Wood

The Fox v Wood component was agreed in the sum of $14,209.70.

Special damages

These were agreed in the sum of $24,693.72 in relation to the first accident and $25,138.10 in relation to the second accident.
For the reasons previously stated the claim is dismissed.