Gormley v Forrestania Gold Nl - [2004] WADC 132

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GORMLEY -v- FORRESTANIA GOLD NL [2004] WADC 132

CORAM: YEATS DCJ

HEARD: 1-5 SEPTEMBER 2003, 24-27 MAY 2004

DELIVERED : 29 JUNE 2004

FILE NO/S: CIV 2552 of 1999

BETWEEN: SHANE KEITH PATRICK GORMLEY
Plaintiff
AND
FORRESTANIA GOLD NL
Defendant

Catchwords:

Negligence - Personal injury - Employer's liability - Liability considered - Worker in underground gold mine - Employer's duty of care to protect from rock fall - 2 accidents - Whether injury in accident 2 aggravated the injury in accident 1 - Total award $40,171

Legislation:

Nil

Result:

Defendant liable for accident 1
Defendant not liable for accident 2

Representation:

Counsel:

Plaintiff: Mr I L K Marshall
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: Mullins Handcock

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

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Joslyn v Berryman; Wentworth Shire Council v Berryman (2003) 77 ALJR 1233
Kondis v State Transport Authority (1984) 154 CLR 672
New South Wales v Lepore (2003) 195 ALR 412
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Schellenberg v Tunnel Holdings (2000) 200 CLR 121
Wilsons & Clyde Coal Co Ltd v English [1938] AC 57

Case(s) also cited:

Brodie v Singleton Shire Council (2001) 206 CLR 512
Castro v Transfield (Qld) Pty Ltd (1983) 57 ALJR 619
Gondoline Pty Ltd v Hansford [2002] WASCA 214
Graham v Baker (1961) 106 CLR 340
Husher v Husher (1999) 197 CLR 138
Jones v Dunkel (1959) 101 CLR 298
Lewis v High Duty Alloys Ltd [1957] 1 All ER 740
McLean v Tedman (1984) 58 ALJR 541
Roads and Traffic Authority of New South Wales v McGuinness (2003) Aust Torts Reports 81-688
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
TA v Lucky Import and Export Co Pty Ltd [2002] WASCA 65
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Turner v State of South Australia (1982) 42 ALR 669
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Wagner v Midland Junction Abattoir Board [1963] WAR 84
Willis v CRA Exploration Pty Ltd (1984) Aust Torts Reports 80-521
Wyong Shire Council v Shirt (1980) 146 CLR 40

YEATS DCJ: The plaintiff claims damages in negligence for injuries he suffered in two accidents during his employment with the defendant in underground mining at the Bounty Gold Mine. The accidents took place on 18 June 1997 and 31 January 1998. Liability is in issue in each accident. The principal issues are:
(1)Whether the defendant was negligent in failing to mesh the hanging wall of the drive where the plaintiff was required to work.
(2)Whether the rock that hit the plaintiff fell from the unmeshed hanging wall.
(3)Whether the plaintiff suffered any lower back injury in accident 1.
(4)Whether accident 2 involved an aggravation of the injury suffered by the plaintiff in accident 1.

History

The plaintiff was born on 26 December 1963 in Western Australia. His family settled in Kalgoorlie where he lived from the age of 6 until he was 12 when the family moved in March 1976 to the United Kingdom. They returned in June 1979. The plaintiff had finished year 9 in England and that completed all of his formal schooling. He commenced employment with jobs at Kentucky Fried Chicken, Woolworths and Ezywalkin Shoes in Kalgoorlie. In 1980 when he was 18 years old he was a passenger in a motor vehicle involved in an accident and suffered an upper lumbar spine injury when he was thrown across the seat. He was treated with physiotherapy. Eventually he returned to work in March of 1981 and was employed in Kalgoorlie as a yard labourer. After that he worked for two years as a mechanical assistant at a service station in Kalgoorlie.
His first employment in underground mining commenced in 1983 when he was employed at Victory Decline in Kambalda as an underground truck driver. He held that position for about a year before taking employment with by the Kalgoorlie Miner newspaper as a delivery driver in 1984 and 1985. During that time period he also worked on a casual basis as a DJ at a roller‑skating rink in Kalgoorlie.
The plaintiff married his first wife in November of 1984 and their son David was born in September of 1985. From January 1985 until October 1985 the plaintiff again worked underground at the super pit as a water truck driver. However, in November 1985 he left the mining industry and worked as a delivery driver for Nite Road Transport for a few months. In December 1985 he and his wife separated.
The plaintiff's longest period of employment in underground mining was from 1986 to 1989 when he worked for Kalgoorlie Consolidated Gold Mines (KCGM) at the Cassidy shaft. He worked as a plat man, a skip man and a crusher. The plaintiff was divorced on 24 April 1987 and later that year his new partner gave birth to their daughter Sheree. He married his second wife in April 1988 and had two other daughters, one born in 1990 and the other in 1993.
From 1989 until 30 April 1990 the plaintiff was employed as a truck driver and later as a loader operator with Lime Industries. In July 1991 he obtained a certificate certifying competency and fitness to have charge of an underground diesel machine. On 30 April 1990 the plaintiff returned to working underground at KCGM, the Cassidy shaft, where he undertook various duties including water/dump truck driver, grader/loader operator and underground shotfirer. He left that employment in September 1994 and moved to Perth.
During 1994 the plaintiff was employed by Brambles Security Services as an armed security officer and for a couple of months as a general labourer with Hunts Pet Foods. He obtained further certificates of competency including a dangerous goods bulk licence course as a driver from the Road Traffic Training Council. In November 1994 he was employed with Brambles Manford as a leading hand forklift driver and bobcat operator and later promoted to leading hand. At that time he completed the advanced forklift course with the Road Traffic Training Council of Western Australia. Between July 1995 and August 1996 the plaintiff was employed by Brambles Security Services as an armed security officer and worked at various armed forces locations. During April, May and June of 1995 he was unemployed. During the first six months of 1995 he and his second wife separated.
The plaintiff again returned to work in the mines in August 1996 where he reconciled with his wife and worked at the Mt Gibson Gold Project on a drive‑in drive‑out basis from August 1996 to May 1997. In March 1997 the plaintiff underwent a pre‑employment medical examination and commenced work with the defendant as a service crew man at the Bounty Gold Mine in Kalgoorlie on 27 May 1997. He was employed on a fly‑in, fly‑out basis and he worked two weeks on, one week off. The plaintiff sustained injuries in the first accident on 18 June 1997, some three weeks after he commenced employment with the defendant.

The first accident

The first accident took place on 18 June 1997 at around 7.30 pm not long after the start of the 12 hour 6.00 pm to 6.00 am shift. The plaintiff was working as an offsider to the jumbo operator Christopher James Begley. The two of them had ridden on the personnel carrier from the entrance to the mine down to the 36 North level. Mr Begley remembered that their assignment was to complete the meshing of the backs at the end of that drive. The plaintiff did not recall their duties. He was to take instructions from Mr Begley. Both Mr Begley and the plaintiff were dressed in protective clothing including miner's helmet with light, work overalls, self‑rescuer, batteries for the helmet lamp and kitbags. They walked from where they were dropped off down 36 North level to where the jumbo was standing.
The Drive at 36 North level was approximately 4.2 to 4.8 metres tall and 4.2 metres wide. The left hand wall was described as the hanging wall where the ore body hung on the slant of the wall between the side wall and the backs. The backs had been rock bolted and meshed up to and including the area where the jumbo was standing. The mesh extended 20 to 30 centimetres onto the shoulder but the walls were not meshed. According to Mr Begley rock bolts were in place on the hanging wall but the plaintiff could not remember seeing any rock bolts on the walls. There was evidence that the opening in the mesh was 75 to 125 millimetres. Mr Lang indicated 10 centimetres (4 inch) openings was the most common size mesh made. The mesh was secured to the backs by split sets (rock bolts) holding butterfly plates.
The accident happened shortly after the plaintiff and Mr Begley arrived at the jumbo. The plaintiff thought they had been there for some five minutes before the accident happened. Mr Begley recalls that it was a matter of less than a minute. He recalled stepping up onto the jumbo and turning on the electric motor. He said he was only on the machine some 15 seconds when something caught his eye and he noticed the plaintiff crouching, holding onto the railings leading up to the jumbo and realised that the plaintiff had been hit by something. The plaintiff gave evidence that he did not know what struck him. He said he was standing with his back to the hanging wall some three or four feet from it facing the jumbo and the next thing he knew he was lying on the platform of the jumbo looking up at Mr Begley. At the time he was hit he had his hands on the handrails to climb up. Whatever hit him he said felt as if his whole left side had been crushed. He asked Mr Begley to get him out and he was half‑carried back up to the entrance to the drive.
Mr Begley said when he saw the plaintiff crouching down holding the handrails he reached down and helped him up onto the platform of the machine. Mr Begley saw small bits of rocks on the steps but saw no large rocks. The small rocks on the step had not been there when Mr Begley stepped onto the jumbo. There was also rock around the plaintiff where he was crouched. Mr Begley said he inspected the backs and the hanging wall and did not see anything out of the ordinary. He said there was mesh on the backs to the shoulders and rock bolts holding the wedges together. Despite his search he could not see where the rock came from. He never saw any large rock, only the small fragments. He said the hanging wall was still intact and the meshing above the area was still intact. Mr Begley said there were rock falls all the time in mines and that he had heard and seen plenty of them at the defendant's mine. He saw one or two unintentional rock falls during the three years he'd been at the mine. He said unintentional rock falls were not a real common occurrence.
Both Mr Begley and the plaintiff gave evidence of the position of the jumbo. Mr Begley said the jumbo was near the end of the heading in position to continue the meshing and that after the meshing the jumbo would be used to bore the rock face at the end of the drive. He said the end of the booms on the front of the jumbo would have been approximately three metres from the rock face. The meshing had been started but the backs were unmeshed where the end of the booms were. Both Mr Begley and the plaintiff gave evidence that the jumbo was parked under safe ground that had been meshed. The plaintiff remembered that the ends of the rods on the jumbo were some three metres from the supported area and that there was a five or six metre distance from the meshed areas to the face. The plaintiff said he had been standing seven metres from the face and about two metres from the front of the jumbo. The plaintiff said he was under the mesh some three or feet from the hanging wall when the accident happened.

The period between the first and second accident

The plaintiff relied on pages 6, 7 and 8 of the chronology (exhibit 2) for the events that occurred between the two accidents. The day after the accident, on 19 June 1997the plaintiff drove in to see the doctor and then came back to work on light duties. Initially he had a lot of pain in his shoulder, back and referred pain in his left leg. He said he had never previously had any lower limb pain. On 20 and 21 June he attended the occupational health unit at work as a result of his injuries. On 23 June he was unable to cope with light duties and returned to Perth for further physiotherapy and a follow‑up by Dr Syed. On 24 June Dr Syed prescribed the use of a sling, anti‑inflammatory medication and analgesia.
In July the plaintiff returned to work for a second swing of two weeks on restricted duties but due to pain was sent home after only one week. He was on lighter duties and could not do any heavy lifting or twisting. Ninety per cent of the work he did was driving underground. There was some work with the front end loader. He would lift men up on the loader basket. He had some trouble with his left arm at first but that improved. Likewise his left shoulder had a dull ache and a sharp grabbing pain if he tried to use it; the pain radiated halfway down. He also had pain on the left side of his neck and in the back of his left lower limb. As he improved, however, he noted that his shoulder area pains improved and lessened but his back pain got worse to where he limped. He experienced lower back pain radiating down his left leg.
The plaintiff was under the treatment of Dr Syed and also had daily physiotherapy when he was in Perth for his week off. The neck and shoulder pain went on for a month or so but then it resolved and had resolved completely after four months. The lower back and the leg got better doing hydrotherapy but the plaintiff claimed that the pain remained in his lower back and leg until January. He claimed he was managing at the time of the second accident but was not able to do any heavy work.
Under cross‑examination the plaintiff admitted that the first report he had made of any low back pain was on 5 August 1997 when he saw Dr Anne Choong. The plaintiff admitted that when he saw Dr Derham on 19 June his complaints were of concussion, left shoulder bruises and abrasions. It was not until seven weeks later that he first complained to Dr Choong of low back pain and pain in his left leg.
The plaintiff however did rely on the report of Dr Syed who saw him for the first time after the accident on 24 June 1997 and his complaints at that time were "Left loin pain which was stabbing in nature, intermittent and radiating down to the anterior thigh" as well as "Generalised low backache". At the time of his attendance the progress medical certificate, part of exhibit 13 mentioned "Left loin pain: probably referred pain from low thoracic spine".
The evidence showed that the plaintiff went through a process of treatment and work trial as his symptoms improved. He was placed on light duties for a period of time and on 23 October was placed on a two week trial at full‑time duties as an underground truck driver. At the end of that period on 6 November 1997 Dr Syed issued a final medical certificate and noted "That there was no further low back/loin last two weeks. Coping with all normal duties." There is no evidence before me and the plaintiff's own chronology, exhibit 2, clearly shows that his last attendance for actual symptoms was on 23 October 1997. He then did not attend any medical practitioner or obtain medications or visit the defendant's occupational health unit during the next three months leading up to the second accident on 31 January 1998. During that three‑month period the plaintiff was involved in full‑time duties as an underground truck driver for the defendant working two weeks on, one week off doing 12 hour shifts.

The second accident

The second accident was said to have occurred at about midnight or in the early hours of 31 January 1998 when the plaintiff was working the night shift from 6.00 pm until 6.00 am. The plaintiff's duties that night were to operate a Wagner dump truck underground carting ore from level 20 or 22 down to the "grizzly" on the 37 level. The Wagner truck was 12 to 14 years old and the driver's seat was pretty hard or solid according to the plaintiff. He admitted there was a spring base and some cushioning but he said that he was required to drive over some very rough ground. He did wear a lap style seat belt.
The plaintiff gave evidence that the decline was pretty smooth but when you hit the level there was a lot of water running across the road causing corrugation. The drives were also very rough and had a lot of large rock from the bogging. The grader did not work at night. The plaintiff described a difference from driving up the decline and driving down the decline. He explained that he could relax driving up the mine and simply accelerate and brace himself but on the way down, he had to both rev up the truck and keep his foot on the brake. During that he was leaning forward and he said he often felt the jolting in his lower back. On the Wagner truck the driver faced sideways and looked over his shoulder to the left to the road ahead (exhibit 15).
The accident took place after he had delivered a load to the grizzly at about midnight. As he was coming back up he noticed that fuel was pouring out of the back of the truck. The fuel nozzle had broken off. He drove to 37 workshop to contact the fitters and the other drivers to let them know there was fuel on the road. When the plaintiff arrived at the workshop he stopped the truck and sent his message on a two‑way radio. He put the two‑way back in the box and turned away when his back spasmed. The spasm was so severe that he described collapsing to the floor in pain. The spasm he described as grabbing on the left side of his back in his lower back, so that he could put no weight on his left leg. His left leg simply collapsed under him. He tried to relax in the workshop but was unable to do so. Then he went to the lunchroom. His shift boss noticed he was having trouble so he told his shift boss he had hurt his back but it would subside. When he tried to get into the truck he could not do so. The shift boss arranged to have him taken up to the surface for medical attention. He went to the first aid room and tried to have a shower but found it very difficult. When the nurse checked him over he collapsed on the floor and had to be carried and put in the sick bed where he stayed the night. The next morning he was taken to Southern Cross Hospital and admitted for three days.
The plaintiff's evidence about the rough corrugated roads and his jolts and bouncing to his lower back as part of his driving was challenged under cross‑examination. The plaintiff admitted having signed an accident report, Exhibit 14, for his employer. In that accident report he described the occurrence as: "Standing near truck, I turned around and felt sharp pain in back." In answer to the question of what events or hazards contributed to the incident the plaintiff said: "Nothing. I just turned around." In answer to the question of what steps could be taken to prevent accident recurrence the plaintiff answered: "Nothing. It just happened."
The plaintiff admitted under cross‑examination that the technical specifications of the seat as found in Exhibit 15 were correct and that it was a "Grammer seat" with features including spring and hydraulic suspension, dependable and maintenance free, easily and quickly adjustable. The seat was described in exhibit 15 as having "foam cushioning with fold‑up arm rests", being fully adjustable for the type of ride, the height, the tilt angle of the seat and back, fore and aft seat and back location and height of the arm rest.
It was also suggested to the plaintiff that from the time he was cleared for work by Dr Syed on 6 November 1997 until the time of the accident on 31 January 1998, a period of nearly three months, that the plaintiff had not visited the nurse or suffered any back problems despite being employed full‑time by the defendant as an underground truck driver. The plaintiff said that he was unable to recall if he had visited the nurse's station during that time. He said he could not recall back that far. In re‑examination the plaintiff gave evidence that the period 6 November 1997 to 31 January 1998 was a long time ago. He said if he needed any medication he would go to see the nurse to get some and see the doctors but he could not recall if he had been to see anyone at that time.

Under cross‑examination the plaintiff was unable to recall when he had first complained of the rough corrugated roads and the bouncing in the truck aggravating his back. It was suggested that he had not complained about that until some 13 months after the second accident when he saw Dr Schaeffer in March of 1999. The plaintiff could not recall.

Plaintiff's history after the second accident

Several days after the second accident, on 3 February 1998 the plaintiff was released from hospital and returned to Perth where he consulted Dr Gee for treatment. He also saw Mr Ponchard, an exercise physiologist. After 16 days absence the plaintiff returned to work on 17 February 1998 and was put to work on a hydraulic rock breaker. He said it was not too bad for his back. He would lift people up and down in a basket and also operated the tool carrier. He continued to attend the occupational health unit from time to time if he needed medication. The plaintiff described his symptoms as low back pain radiating down his left leg. He said the pain had not resolved. He was assigned light clerical duties. Between 10 March and 19 March 1998 he was again on sick leave due to the pain from his injuries and from 20 to 24 March he was put on light duties. On 31 March 1998 the plaintiff was advised that he would not be allowed on site until he was given a fitness clearance to resume his pre‑accident duties. The plaintiff did not return to site and his employment was terminated on 14 September 1998.
At the time he was banned from the site the plaintiff had a wife and four children to support. He spoke to the defendant about a security position or a clerical job but nothing developed. The plaintiff did however commence employment on 5 December 1998 at Baxendale Securities as a security officer. He worked at that job for some 10 months before he was retrenched. His supervisor was concerned that due to his injuries if he was attacked he would be an easy target for a criminal to take his keys and gain access to premises.
The plaintiff and his family moved to Warnbro. The plaintiff commenced a course at TAFE in computer technology paid for by the Commonwealth Rehabilitation Service but he never finished the course. He also began doing some voluntary work for the Warnbro Primary School at the invitation of his daughter's teacher. Eventually he was offered employment at the North Mandurah Primary School for one term as a teacher's aide. In the job he was employed by the Education Department for half the day and by the Family and Children's Services for the other half and worked about a six hour day five days a week. Since then the plaintiff said he had sent resumés to a number of schools in Kalgoorlie seeking employment as a teacher's aide. Those were sent after November 2001 when the plaintiff and his wife separated and he moved back to Kalgoorlie and began living with his brother. The plaintiff said that he was able to do a teacher's aide job other than assisting at sporting events. That was too demanding for his back.
The plaintiff gave evidence that he had intended to keep working in the mining industry before his injuries. His father had retired at the age of 65 so he assumed that was about when he would have retired. He aspired ultimately to be a shift boss. He agreed he would have to go to the School of Mines to do the shift boss course.

The plaintiff's credibility

The plaintiff initially gave evidence in September 2003 but the trial had to be adjourned and the final hearing was nine months later in May 2004. Initially in his evidence the plaintiff was asked if he did any work in Kalgoorlie and he replied: "No work other than just around the home." (T31) When asked how he spent his days in Kalgoorlie on a daily basis he replied, "If my brother's got anything he needs doing I'll go to the bank for him or I'll go to the post office. I go and see my sister and my brother." (T76) Later the plaintiff said his brother "was actually talking about trying to help me push on to do some computer work" (T80). Under cross‑examination the plaintiff said he'd just had a bit of hands on computer work with a friend of his in Kalgoorlie. He said the friend did not have a business and just helped him with a few more details (T235). The plaintiff said he did this occasionally – not on a daily basis (T236). Under cross‑examination the plaintiff said he had been seeking work as a computer technician at Harvey Norman without success. The implication of all of that evidence by the plaintiff was that he had never been employed during the time he was in Kalgoorlie other than going to the bank or post office for his brother.
During the May 2004 hearing the defendant challenged this evidence by calling Mr Mark Braham, the proprietor of Sign Power in Kalgoorlie. Mr Braham gave evidence that the plaintiff did some 39 hours of computer installation and repair for Sign Power between 10 October 2002 and 9 August 2003. Mr Braham produced a bundle of invoices for that work, exhibit 32, which show that Global Outdoor Services (the business operated by the plaintiff's brother) provided the computer services under the trade name of Global Computer Services.
The plaintiff gave further evidence in May 2004. He admitted doing all of the computer work for Mr Braham's company. And he admitted that it was his own personal mobile telephone number which appeared on the invoices exhibit 32. But the plaintiff claimed he was never paid for that work by his brother. He said he did not receive wages from his brother. The plaintiff admitted he did all the computer work for Global Computer Services. It was his brother's company but his brother was only a tree lopper and knew nothing of computers. The plaintiff also admitted that he did clerical work in his brother's business but he denied again ever doing any paid work for his brother.
The plaintiff's admissions concerning his work with Global Computer Services damaged his credibility. His answers in both evidence‑in‑chief and cross‑examination on the first occasion when he gave evidence can now be seen to be untruthful and misleading. Mr Braham's description of the work the plaintiff did to deliver and install three computers at Mr Braham's business premises included evidence of the plaintiff carrying the computers into the premises without assistance. Mr Braham said he thought each computer weighed 30 kilograms. The plaintiff claimed that the heaviest component of each computer weighed only 10 to 15 kilograms but, given the plaintiff's earlier misleading evidence, it is difficult to accept what he says about the weight of each computer.
The defence learned of Mr Braham quite by accident during the adjournment of the trial. Mr Braham said he offered to help the plaintiff carry the three computers into his premises but the plaintiff did not want any assistance. According to Mr Braham the plaintiff said: "… KCGM have their spies out. I hope they don't see me. I won't get a payout". The evidence showed that the plaintiff had no claim against KCGM although he had worked there between 1986 and 1989. At trial the plaintiff wore a KCGM jacket.
The defendant concedes Mr Braham may have made an error about KCGM but suggests the plaintiff's remark related to his claims in this case. I accept the defendant's submission about that. It clearly shows that the plaintiff was performing heavy lifting work and providing extensive computer services for his brother's business in 2002 and 2003 and the evidence shows that the plaintiff knew he must conceal that work from the defendant in order to get a payout. The defendant only learned of this because KCGM was a client of Mr Braham and Mr Braham mentioned the plaintiff's remarks to a KCGM employee. Word soon reached the insurers.
There is another aspect of Mr Braham's evidence that emerges from the face of the invoices comprising exhibit 32. The invoice numbers are not consecutive. The extensive gaps in those numbers give rise to the compelling inference that the computer work for Mr Braham was not the only computer work the plaintiff was doing for Global Computer Services during this period. The plaintiff admitted he did all of Global Computer Services computer work but he was very evasive under cross‑examination about the extent of that computer work. That evasiveness and the plaintiff's failure to provide full details of the extent of his work for Global Computer Services leaves me to draw the inference that his work during this period was considerable. It is apparent from the invoice numbers and I am satisfied that the plaintiff was involved in virtually full time work in computer sales, installation and services for Global Computer Services during the period he was in Kalgoorlie.
His brother, the tree lopper, has now left Kalgoorlie and no longer operates his business Global Outdoor Services. The plaintiff now claims his work with Global Computer Services has ended as well. I have no confirmation of the plaintiff's evidence about that.
The plaintiff gave evidence that Mr Braham had a motive to tell lies against him. The plaintiff admitted he has been living with Mr Braham's estranged wife for six months and continues to live with her. The plaintiff further claimed that in August 2003 he spoke with Mr Braham who told him he would "destroy" anyone dating his missus. The plaintiff suggests Mr Braham has not been truthful in his evidence about what the plaintiff said concerning KCGM.
In considering that submission I bear in mind two matters. Firstly, it is for the plaintiff to prove his case. And, secondly, the plaintiff has admitted doing the computer work for Global Computer Services. The plaintiff's credibility is seriously compromised. I found Mr Braham to be a very believable witness. Most of Mr Braham's evidence was fully corroborated by documents and by the plaintiff's admissions. For these reasons I accept Mr Braham's evidence about what the plaintiff said to him about spies being out and that he might not get his payout.
Mr Braham also gave evidence of visiting the premises of Global Outdoor Services on a number of occasions and finding the plaintiff there, the only person minding the business. The plaintiff admitted doing clerical work for his brother and admitted being at the premises when his brother and other employees were making deliveries. But the plaintiff claimed other family members were employed at Global Outdoor Services and he denied he worked there all the time. The plaintiff said his brother employed his 30‑year‑old daughter, her 26‑year‑old boyfriend and his nephew in the business. Neither the plaintiff's brother nor any of those witnesses were called to confirm the extent of their involvement in the business.
Mr Braham gave further evidence of seeing the plaintiff recently in Kalgoorlie loading Karaoke equipment into a vehicle outside the Palace Hotel. The plaintiff admitted he was there but said another man was lifting and moving the equipment.
There was one aspect of the plaintiff's evidence in September 2003 that had puzzled me. Under cross‑examination he admitted that several weeks prior to the trial in July 2003 he had been offered a teacher's assistant's job in Bunbury. He said he did not take the job because he lives in Kalgoorlie. He refused the employment because he didn't live in the area. The offer was from Eaton Community College a few kilometres out of Bunbury. It is a high school. Now it seems obvious to me that the reason the plaintiff declined the Eaton employment was because he was already fully employed with Global Computer Services in Kalgoorlie. He did not need that work.

Current symptoms

The plaintiff described his current symptoms. He claimed to suffer pain in his lower back which goes down behind his knee and on a bad day goes down to his foot. He experiences a sensation in his left foot and walks with a limp. He described the pain as a steel pole down the middle of his leg. His current medication is two 100 milligram tablets of Endep at night in order to sleep. He also takes a fifth milligram of Tramal sometimes four times each day. Both of those are prescription medications and he tries to see his family doctor, Dr Joseph, every couple of weeks but doesn't always see him that often. He also uses Panadeine or Panadol for pain relief. He previously took 10 milligrams of Temazepam at the same time he took his Endep at night before he slept but he no longer takes Temazepam.
In his evidence‑in‑chief the plaintiff asserted that he had had to give up ten pin bowling and pistol shooting because of his injuries but under cross‑examination he admitted that he had discontinued both of those sports before he was employed by the defendant.
As part of his history under cross‑examination the plaintiff admitted that his wife was ill on two occasions after she had moved to Bunbury with the four children and from February until May in 2003 he did all the chores for the four children ages 10, 13, 16 and 18 although the plaintiff claimed the children helped him.

Medical evidence

There are three issues in dispute between the plaintiff and the defendant requiring careful consideration of the evidence of expert medical witnesses whose opinions differed.

Did the plaintiff suffer any lower back injury in accident number 1?

I accept, based on the bundle of progress/fitness medical certificates exhibit 13, that on 24 June 1997 the clinical findings and diagnosis involved neck strain, soft tissue injury to the left shoulder, and left loin pain – probably referred pain from low thoracic spine. I accept that it was not until 5 August 1997 some seven weeks after accident 1 that there is a reference to "lumbar pain radiating to left leg" in the progress/fitness medical certificate of that day. However, in his report Dr Syed, the treating general practitioner who first examined the plaintiff on 24 June 1997, noted a generalised low back ache at that time. Dr Syed noted that the plaintiff's principal symptoms related to the pain in his left shoulder, in the left side of his neck and his left loin pain. In his report dated 3 November 1998 Dr Syed noted that on 30 June 1997 the plaintiff continued to complain of low back pain and loin pain. On 7 July 1997 the plaintiff's shoulder felt fully recovered and he continued to have residual left loin and back pain. On 28 July 1997 Dr Syed noted that the plaintiff continued to complain of left‑sided lumbar and groin pain. Professor Harper considered these issues and said:
"It's very consistent with his history in this case that shoulder pain would be his – a predominant symptom, and if he had some back injury, it is quite reasonable to think that he would not draw as much attention to it as he were to the shoulder." (T224)
Professor Harper went on to say:
"I think that the symptoms that he presented initially are going to be due to some mechanisms which may not be operating later. So if he has an acute injury he may well have had a muscular sprain in his back and that would engender pain and could sent pain down the anterior part of his thigh and could be unrelated to an intrinsic injury at the level of discs in the lumbar spine which have subsequently been responsible for symptoms. So we could be looking at two different injuries, biologically speaking two different injuries." (T225)
Dr Brian Galton‑Fenzi, a specialist in occupational medicine, struggled in his cross‑examination to take account of the suggestions put to him by defence counsel. I finally had to intervene at T130 to ensure that he answered the question of whether a seven week period without symptoms affected his diagnosis. Dr Brian Galton‑Fenzi denied that it affected his diagnosis but he said he would wonder if accident 1 was the cause of the lower back pain.
Mr Soni Narula, a neurosurgeon saw the plaintiff on five occasions both for medical/legal review and as his treating neurosurgeon. When questioned about the apparent seven week gap in reporting serious low back pain Mr Narula's evidence supported Professor Harper to some extent when he said that anterior thigh pain in the groin area is quite common in facetal injuries in discal injuries. Mr Narula went on to say that: "Quite often in the natural history it is not commonly seen that the full florid symptomatology results. It may just start as a simple back pain and with time, it can develop into all the full characteristics of a facetal injury." (T296) Mr Narula diagnosed the plaintiff as suffering from facetal injury.
While Professor Harper only saw the plaintiff on one occasion in 2000, his qualifications and his capacity to provide well reasoned responses to questions gave me considerable confidence in his report and his evidence. Professor Harper did not back away from cross‑examination that raised factual issues which differed from the instructions received from the plaintiff. Professor Harper addressed those issues and was of considerable assistance to me. I am prepared to rely on his evidence and to find that the initial injury in accident 1 involved not only the neck, shoulder and loin but an underlying injury to the lumbar spine which became more symptomatic to the plaintiff as his other symptoms receded and disappeared. I also rely on Professor Harper's opinion that he was not overly concerned about the seven week delay from the date of the initial injury until 5 August 1997 when the plaintiff was clearly complaining of low back symptoms. Professor Harper referred to the "smouldering symptoms" suffered by the plaintiff (T226). I accept and rely on the evidence of Professor Harper and Dr Syed. I am satisfied that the plaintiff did injure his lower back in accident number 1.

What is the cause of the plaintiff's lower back pain symptoms?

There was some divergence of view among the medical experts as to the cause of the plaintiff's ongoing pain symptoms in his lower back and radiating down his left leg. Dr Brian Galton‑Fenzi said that the plaintiff has a disc injury and referred to the disc annular tear although he conceded that a tear can be asymptomatic. The general practitioner Dr Syed diagnosed a "soft tissue injury". Dr Goodheart, the consultant neurologist, also diagnosed a soft tissue injury or what could be two soft tissue injuries to the lower back. Dr Goodheart certainly confirmed that there was no evidence of any radiculopathy despite the plaintiff having radicular symptoms. Professor Harper also diagnosed a soft tissue injury to the plaintiff's lumbar spine. Mr Narula, the neurosurgeon, believed his symptoms were typical of facet joint pain, particularly his need for Endep and Temazepam at night to allow him to sleep. Mr Narula said that facet joint pain increases in the night when the muscles relax and allow facet joint movement. Dr Robert Warner, an occupational physician, believes the disc bulge is the cause of the plaintiff's pain and does not believe there is any facet joint injury. Dr Marsden, also an occupational physician, found an indication of facet joint involvement but he found it very difficult to determine what the pain generator was. He considered it was either a facet joint or soft tissue injury and rejected any involvement of the disc. Dr Steven Clarke, an occupational physician, had difficulty identifying the injury and what caused the plaintiff's pain but he was prepared to accept that the mid-line annular tear would be one cause for ongoing back pain.
Initially I was impressed with Mr Narula's reasoned diagnosis of facet joint pain being the pain generator but that opinion depended on whether the plaintiff was truthful in his account that he needs Endep and Temazepam in order to sleep. The plaintiff's capacity to carry computers and install them seems to me quite inconsistent with a man suffering such serious back pain that he needs drugs of this nature in order to sleep. That evidence leads me to accept the evidence of Dr Syed, Dr Goodheart and Professor Harper that the plaintiff suffered a soft tissue injury to his back. I am satisfied a soft tissue injury is the source of his lower back pain symptoms if any.

Did accident 2 involve an aggravation of the injury suffered by the plaintiff in accident 1?

The plaintiff's case is that the injury suffered in the second accident was an aggravation of the pre‑existing injury to his back caused by the first accident. There are factual issues relied upon by the defendant in its submission that the two accidents are unrelated. The defence submits that the plaintiff recovered fully from accident 1 and that accident 2 is a separate and unrelated event.
The plaintiff underwent a two week work trial commencing on 23 October 1997 in which he took on full‑time duties as a driver in the underground mining operations. That involved working 12 hour shifts on a two week on, one week off basis. After his initial two week trial the plaintiff reported that he had no ill effects and no further pain problems. The final medical certificate was issued on 6 November 1997 by Dr Syed. Dr Syed noted that the plaintiff had no further low back pain during the previous two weeks and was coping with all normal duties. That situation continued from 6 November 1997until the second accident on 31 January 1998, a period of nearly three months.
Dr Brian Galton‑Fenzi was of the opinion that even if the plaintiff was symptom free for three months it did not alter the diagnosis and his finding that the second accident aggravated the injury suffered in the first accident because of what Dr Brian Galton‑Fenzi described as "underlying pathology". Dr Goodheart, the consultant neurologist, was unable to determine whether the injury suffered in the second accident was an exacerbation of the injury suffered in the first accident. However, he remained of his opinion as stated in his report that the first injury was a material contributing factor to the second injury.
Professor Harper's opinion in his written report was based on the plaintiff's evidence of ongoing low back pain from accident 1 continuing until accident 2. Professor Harper's opinion was that accident 2 was an exacerbation of the pain from accident 1 resulting from aggravation from truck driving (exhibit 17, p 48). But Professor Harper was prepared to concede in his cross‑examination that if the plaintiff drove a truck for three months underground without symptoms prior to the second accident it would put a caveat on his opinion that the second injury was an aggravation of the injury suffered in the first accident (T230). Under re‑examination Professor Harper said that his opinion that the injury sustained on 18 June 1997was a material contributing factor to the incident on 31 January 1998 was based on the evidence he had in front of him when he prepared his report. The evidence Professor Harper referred to was the history given to him by the plaintiff. That history was not supported by evidence at trial. There was no evidence of any back symptoms from 23 October 1997 when he commenced the work trial until the date of the second accident.
Mr Narula the neurosurgeon remained of the view that the second accident aggravated the injury suffered in the first accident. Dr Warner, the occupational physician, seemed to agree that if the plaintiff was symptom free for three months while working full time as an underground driver it would be unlikely that the second accident simply amounted to an aggravation of the injury suffered in the first accident.
Dr Marsden, the occupational physician who saw the plaintiff in April 1998 some two and a half months after the second accident reported in October 1999 that in his opinion the first accident was not related to the second accident. Dr Marsden formed the view that the plaintiff had recovered after accident 1.. He had been doing three months of hard labour underground without any symptoms. Dr Marsden's opinion was that the injury suffered in accident 2 was a separate injury. Dr Marsden agreed that the same area of tissue may be involved in both accidents but three months is a significant period of work. He reiterated his opinion that people do recover, they do go back to work and this plaintiff did that.
Dr Steven Clarke on the other hand, an occupational physician, was of the view that the ongoing incapacity suffered by the plaintiff was a result of his original injury. Under re‑examination however he conceded that the second injury could be a new injury and unrelated to the first injury.
It is for the plaintiff to satisfy me on the balance of probabilities that the injury he suffered in accident 2 was an aggravation of the injury he suffered in accident 1. I have already found that the plaintiff suffered a soft tissue injury to his lower back. In this case based on the factual history and relying in particular on the opinions of Professor Harper, Dr Warner and Dr Marsden I am not satisfied on the balance of probabilities that the second accident did aggravate the injury in accident 1. The defendant has satisfied me that the plaintiff recovered from the initial soft tissue injury and worked driving trucks underground for some three months without problems with pain. I consider his capacity to do that to be quite inconsistent with ongoing injury. For these reasons the plaintiff has failed to satisfy me that the injury he suffered in accident 2 was an aggravation of the injury he suffered in accident 1.

Liability accident 1

The defendant owed a non‑delegable duty of care to the plaintiff as its employee. Its duty is that of a reasonably prudent employer to take reasonable care to avoid exposing its employees to unnecessary risks of injury (Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 per Mason, Wilson and Dawson JJ at 307 – 308; Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 per Dixon CJ and Kitto at 25).
The standard of care is not a low one (O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 230). Whether the standard of care has been satisfied is a question of fact to be determined in the light of the circumstances of each case (Bankstown Foundry at 308). The question in every case is whether the employer failed to take those precautions which an employer acting reasonably would be required to take (Bankstown Foundry at 309). As the tribunal of fact I must take account of community standards current at the time of the accident. Importantly in this case, I must avoid being wise in hindsight.
An employer's duty is not one of strict liability. The duty remains that of reasonable care. But an employer's duty of care is a continuous duty, demanding vigilance and attention to the needs of accident prevention (Schellenberg v Tunnel Holdings (2000) 200 CLR 121 per Kirby J at 161). To say that the duty is non‑delegable means that it is a personal duty. The employer must either perform the duty or see that it is performed. The duty cannot be discharged by entrusting its performance to another (New South Wales v Lepore (2003) 195 ALR 412 per Gleeson CJ at [19], [20] and [35]; Kondis v State Transport Authority (1984) 154 CLR 672 at 687; Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 at 84).
The issue in this case is what level of ground support should a reasonably prudent employer have been using in the Bounty Gold Mine in June 1997 prior to the plaintiff's accident and prior to the fatality involving Mr Knot which occurred several weeks later on 12 July 1997 as the result of a rock fall from the hanging wall on 22 level at the mine. The evidence established that after Mr Knot's death Mr Dawes, the mine manager for the defendant, changed the level of ground support in all drives at the mine. At that time he implemented the meshing of all the hanging walls and foot walls from the backs down to 1.5 metres from the floor of the drives. A diagram of this meshing can be seen in exhibit 31 at p 16.
Prior to the fatality the backs were meshed and the shoulders were meshed a further 20 to 30 centimetres. The hanging walls and foot walls were rock bolted if needed but were not normally meshed. The decision whether to mesh the hanging walls and foot walls had been left by Mr Dawes to the foremen on the ground working in the drives.
The hanging wall in 36 North drive was not meshed on the day of the plaintiff's accident. Mr Dawes admitted that it was possible that given the dimensions of the drive (4.2 metres wide x 4.8/4.2 metres high) rock could fall from about 2.7 metres of the unmeshed hanging wall onto the head of a worker standing in the drive (T539). But Mr Dawes explained that a range of people including consultants considered what was going on in the mine and made recommendations that he adhered to. Based on such information he believed prior to Mr Knot's death that the system of meshing the back and shoulders was adequate so long as the foreman on the ground was free to mesh hanging walls when they saw a need.
A number of factual matters need first to be considered. The plaintiff's evidence was that he was standing under the meshing on what he believed was safe ground when the accident occurred (T95). The Jumbo was parked under safe ground (plaintiff T48 – T49: Begley T199). Neither Mr Begley nor the plaintiff could identify the area where the rock came from. The defendant submits that the rock must have come through the 100 millimetre (4 inch) opening in the mesh and not from the unmeshed hanging wall. For the plaintiff it is contended that the rock that hit him was too large to have come through the mesh. The plaintiff relies on the evidence that the impact felt as if his whole left side had been crushed. His helmet was knocked off and he temporarily lost consciousness. He suffered immediate and prolonged neck and shoulder and then back pain radiating down his left leg. The plaintiff contends that such extensive injuries are inconsistent with being hit by a rock small enough to fall through the mesh.
I was not assisted by any expert evidence on the likely speed and impact of a rock falling from a 4.8 metre height and hitting a man on the head and shoulder. The size of the rock is unknown. But Mr Begley did notice small rocks on the Jumbo steps and other rocks on the drive around where the plaintiff was crouched when he was struck. Although Mr Begley could not see where any rock broke off the hanging wall he thought it might have just snapped off that wall (T173).
After considering all of the evidence I accept the plaintiff's contentions. Doing the best I can I am satisfied that the rock which hit the plaintiff was too large to have come through the mesh on the backs and shoulders. I am satisfied the rock snapped off the hanging wall. Although the plaintiff thought he was standing under safe ground I am satisfied that he was below the hanging wall and was injured when a rock from that wall fell on him. Because of the angle of the hanging wall I believe the plaintiff and Mr Begley could easily have been mistaken about being under the mesh.
I received a good deal of evidence about the seismicity of the mine. The record of seismic events recorded in the Bounty Gold Mine between January and June 1997 was tendered as exhibit 22. The twenty eight events included rock bursts, movement in the rocks and a range of sounds including bangs, grunts, pops and thumps. Bounty Mine has no seismic monitoring system. Seismic monitoring was available and in use in other Western Australian mines at the time. These recorded events were seen, heard or felt by employees in the mine. Mr Dawes commenced as manager of the Bounty Gold Mine in February 1997 and was aware of the seismic events in exhibit 22. Prior to that time the defendant had approximately a one third interest in the gold mine. In his evidence Mr Dawes admitted that he was aware of events at the mine prior to his taking over as mine manager including a rock fall from the backs on 19 November 1996 seriously injuring an employee, an 8 to 10 tonne rock burst on 20 level on 30 November 1996 due to increased seismic activity and deterioration of ground support, and a large rock fall on level 15 on 3 December 1996. Mr Dawes admitted that by May 1997 the seismic event history in the mine continued to constrain production to an extent (T567 – T568).
The evidence of Mr Adrian Lang, a geotechnical engineer and special inspector of mines, employed by the Department of Industry and Resources was of considerable assistance to me. Mr Lang had visited the Bounty Gold Mine on 12 occasions between 1994 and 1997. He explained that the mine was initially an open pit excavation to about 60 ‑ 80 metres below the ground's surface. The ore vein then dipped down fairly steeply at roughly 70 to 80 degrees extending down to below 1000 metres. There was a circular 4 metre diameter shaft sunk in the hanging wall used to heist the ore up out of the mine. Initially a ramp or decline was used for this purpose zigzagging down the hanging wall. From there they were able to access the ore body. Mr Lang said that the ground control problems in the decline got progressively worse at depth. The primary problem was due to high rock stress levels increasing with depth. Spalling occurred – small pieces of rock falling off or being ejected off the walls as the stresses exceeded the strength of the rock. Ground conditions became progressively worse so that it became necessary to move the decline to the foot wall. Mr Lang said L36 north where the plaintiff's accident occurred was a fair way down in the mine. Mr Lang agreed that the Bounty Gold Mine had a history of seismic activity (T428). In such a mine Mr Lang said that meshing the backs would not be sufficient ground support. He believed it would have been appropriate to look at additional forms of support on the walls. Mesh or shotcrete could have been supplied. Both were available in early 1997 and had been used in other WA mines. Meshing could have been used on the hanging wall or the foot wall (T429). Mr Lang mentioned, however, that right at the time of this accident in 1997 the WA Mining Industry was having a problem getting its head around the fact that it needed to put mesh in some areas of the mine. The techniques were available but there seemed a reluctance in some quarters to recognise that meshing was an appropriate technique (T435). Mr Lang's opinion was:
"Given the events that had taken place in the mine I think, I believe, it would have been reasonable for the management of the mine to look at additional forms of ground support, but this is best judged by the people involved with the actual mining operation." (T443).
He was able to say that additional precautions were needed in the mine at the 20 and 24 levels where Mr Knott was killed. But Mr Lang did not know the detail on 36 level and could not say what was appropriate ground support at that level. However, given the history of seismic activity at the Bounty Mine, Mr Lang believed the owners were required to take more care (T447). Given the history of the Bounty Mine Mr Lang believed it would have been appropriate for the defendant to have been more pro‑active in the area of rock support and reinforcement techniques they were using in the mine (T450). Mr Lang believed a number of things could be done and said a blanket approach for meshing was one way of approaching it (T451).
Mr Lang visited the mine in November 1996 after the rock fall at 33 level injured a miner and, following his inspection, made recommendations (exhibit 20). Under cross‑examination Mr Lang admitted that at that time he was aware of the rock stresses and seismicity in the mine but did not recommend meshing of all the hanging walls because he believed ground control needed to be assessed on an ongoing developmental basis (T453).
The plaintiff also called an expert mining engineer Mr Errol McDonald. Mr McDonald never visited the mine site. He based his opinions on Mr Lang's GE006 geotechnical engineering report and annexures, but, that report was not tendered in evidence and therefore any opinion based upon it is not admissible (Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370). Mr McDonald also based his opinion on information from an interview with the plaintiff; some of that information appears to be quite different from the plaintiff's evidence in court.
However, Mr McDonald was a very experienced and highly qualified mining engineer (exhibit 23). He had been working in the goldfields area since 1985 and had extensive experience in ground control in underground gold mines. I accept his evidence that as early as 1992 meshing side walls was becoming common and by 1995 it was common practice in many WA gold mines (T472).
I have found that the rock that hit the plaintiff came from the hanging wall on level 36 North. Given the seismicity of this mine and given the nature of an employer's continuous duty to take reasonable care and to be vigilant and to give attention to the needs of accident prevention, I am satisfied that the defendant breached its duty of care to the plaintiff by not meshing the hanging wall to a level where a miner working in the drive would not be at risk of a rock falling or bursting or spalling from the wall and striking him on the head or shoulders. Given the seismicity of this mine I am satisfied that defendant should have taken greater care in ground control. Meshing the backs and shoulders was not enough; given the height of the drive I am satisfied that by leaving 2.7 metres of the hanging wall unmeshed above miners working in the drive created a foreseeable risk of injury to those miners. Mr Dawes was aware of that risk. The risk was a very serious one. Rock falls can lead to very serious injury or death.
Mr Dawes was well aware of the rock stresses, particularly in the deeper parts of the mine such as level 36 North. He was aware of seismic events on the 37 level South, the 36 level, the 36 level South, the 33 level South and the 34 level South during March, April and May 1997 prior to this accident (exhibit 22). Mr Dawes also knew that there was no seismic monitoring in the mine. I accept that there is no record of any seismic event at level 36 North around 18 June 1997. But without seismic monitoring equipment operating there is no assurance that there had not been such an event.
Meshing the hanging wall would have prevented this accident. Meshing of the hanging walls was implemented shortly afterwards at the Bounty Mine. There is no evidence that the process is particularly expensive or difficult. I accept that it was becoming common practice in underground gold mines in the goldfields as early as 1995.
Balancing all of these factors I am satisfied that the defendant breached its duty of care owed to the plaintiff by failing to take reasonable care to avoid an unnecessary risk of injury to miners. I am also satisfied the breach of the defendant's duty of care caused the injury the plaintiff suffered in accident 1. Therefore the defendant is liable to compensate the plaintiff in damages for those accident caused injuries.

Contributory negligence

"At common law a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed." (Joslyn v Berryman; Wentworth Shire Council v Berryman (2003) 77 ALJR 1233 at [16] per McHugh J.)
"… the issue of contributory negligence had to be approached on the footing that the respondent had failed to discharge its obligation to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant, the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances an under those conditions the appellant's conduct amounted to mere inadvertence, inattention or misjudgment, or to negligence." (Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493.)

The defendant relies on the plaintiff's evidence that the plaintiff arrived at the jumbo and stood by it for some five minutes before he was hit by the rock and the defendant submits that the plaintiff thereby exposed himself to this risk of injury and should reasonably have avoided it by climbing up under the protection of the jumbo canopy without delay. I do not accept the plaintiff's evidence about that. I found Mr Begley to be a more reliable witness. Mr Begley's evidence was that the accident happened within less than a minute after they arrived at the jumbo. Mr Begley remembered that he had only been on the machine for some 15 seconds when the rock hit the plaintiff. Therefore I do not accept the plaintiff was negligent by standing beside the jumbo for five minutes.
There was also a suggestion in Mr Lang's evidence that the miners should have made their workplace safe by scaling the hanging wall with scaling bars. This was not done by the plaintiff but I do not accept that he was in any way negligent in failing to do that. The plaintiff was in the process of moving down the drive and preparing to climb up onto the jumbo when he was struck by the rock. Both the plaintiff and Mr Begley believed the jumbo was under the meshed backs and shoulders on safe ground. It was the height of the drive and the angle of the hanging wall that misled them both. I am satisfied that the plaintiff did not in any way unreasonably expose himself to this risk. If the hanging wall had been meshed as it should have been he would have been protected. That was the responsibility of the defendant, not the plaintiff.
For these reasons the defendant's contention of contributory negligence on the part of the plaintiff fails.

Liability for accident 2

The plaintiff contends the defendant was negligent by requiring him to carry out truck driving duties underground on a 12‑hour shift, 14 days on and seven days off when the defendant knew the plaintiff had sustained a back injury in the first accident and was predisposed to aggravation of his back condition.
I again consider what a reasonably prudent employer would do to take reasonable care to avoid exposing this plaintiff to unnecessary risks of injury. I have already recounted the plaintiff's history of return to work after accident 1 when he went through a process of treatment and work trial and light duties. He began a two week trial on full time duties on 23 October 1997 as an underground truck driver and successfully completed it. During that two week trial I assume he drove Wagner trucks on declines and rough levels in the mine for 12‑hour shifts without any back problems. Dr Syed issued a final medical certificate on 6 November 1997 and the plaintiff began regular full time duties. I am satisfied he successfully fulfilled those duties over the next three months working 12‑hour shifts for 14 days on at a time.
Dr Ian Gibson, a human physiologist called as an expert witness by the defendant, expressed his personal dislike for such a system of work involving long hours. Professor Milo Nedved, a safety engineer called by the plaintiff, also disapproved of 12‑hour shifts: he would never have permitted longer than 8‑hour shifts because of the stress on the lower back from the whole body vibrations caused by the Wagner truck.
It was Professor Nedved's opinion that given the plaintiff's previous back injury the defendant should have insisted on a full functional assessment parallel with the work trial before taking him back on full time duties. I do not accept Professor Nedved's opinion about that. I prefer Dr Marsden's opinion as an experienced occupational physician that injured people do recover and this plaintiff had recovered. He had been doing full time duties for three months prior to the accident. Dr Marsden considered that to be quite a long time.
Dr Robert Warner, another occupational physician, accepted everything in the plaintiff's history provided to him by the plaintiff. On the basis of the plaintiff's instructions that the plaintiff was never symptom free between accident 1 and accident 2, Dr Warner formed the opinion that to return to work in a truck over uneven ground for a 12‑hour shift was inappropriate to the plaintiff's medical condition. But the evidence at trial did not support the plaintiff's instructions about never being symptom free. Under cross‑examination Dr Warner properly conceded that after a two week work trial and then being symptom free for three months it would have been reasonable to allow the plaintiff to continue full time underground truck driving on a 12‑hour shift.
I accept Dr Warner's opinion. Given the plaintiff's opportunity for a gradual return to full time duties and a work trial, I do not accept that the defendant was in breach of its duty of care by not requiring the plaintiff to undergo a full functional assessment. Nor do I find any breach of the defendant's duty of care in requiring the plaintiff to work 12‑hour shifts on rough underground levels. That is what his job entailed. He had his work trial and his three months of work and never complained of any back pain. It would not be reasonable in these circumstances for the defendant employer to have done anything further.
The plaintiff further contends that with the knowledge that the plaintiff had sustained a back injury as a result of accident 1 and was predisposed to aggravation of his back condition, the defendant failed to provide a suitable driver's seat such as an air‑cushioned driver's seat on the truck in order to minimise vibrations. The plaintiff's evidence does not support his own case on this issue. Under cross‑examination the plaintiff admitted the specifications of the "Grammer seat" in exhibit 15 were correct and that the seat included "spring and hydraulic suspension", was fully adjustable and had "foam cushioning with fold up arm rests". That evidence was confirmed by Mr Groombridge the defendant's maintenance planner.
A further particular of negligence alleging failure to install a seatbelt need not be considered. The plaintiff admitted there was a seatbelt installed.
There was a considerable amount of evidence about the Wagner trucks and the seat the plaintiff sat upon while driving that truck. I am satisfied based on the evidence of Mr Groombridge that the seats on both Wagner trucks were replaced in December 1997 within six weeks of accident 2. I am also satisfied that the seats were regularly repaired and replaced by the defendant. It is obvious from the extensive repair and replacement of seats that the seats wear out quickly with rough use in the mine. There is nothing about the seats or their maintenance by the defendant that shows any want of reasonable care on the part of the defendant.
I have already found that the back spasm the plaintiff suffered in the second accident was not an aggravation of the injury suffered in accident 1. I am satisfied the plaintiff had fully recovered from the soft tissue injury to his lower back suffered in accident 1. In these circumstances, having recovered and having produced a final medical certificate after completion of two week work trial, I am not satisfied that a reasonable employer in the position of this defendant should have done anything further to protect this plaintiff's back. It would be different if the plaintiff had complained of back pain at any time during the three months preceding the accident. The plaintiff's initial response to accident 2 was that no event or hazard contributed to the accident; he said he just turned around. The plaintiff failed to complain for 13 months after the accident of any aggravation to his back from the truck seat or the vibrations or the corrugations. Those factors confirm me in my view that accident 2 was a new injury and that the defendant employer did not breach his duty of care to the plaintiff by employing him as an underground truck driver after he recovered from his injuries in accident 1. To find otherwise would put an unreasonable burden on an employer and would prevent the re‑employment of workers who recover from their injuries.
For these reasons the plaintiff has failed to satisfy me that the defendant was liable in negligence for any injury suffered by the plaintiff on 31 January 1998 in accident 2.

Assessment of damages

I assess damages for injuries the plaintiff suffered in accident 1. He was able to return to full time employment on 23 October 1997. Therefore his loss of earning capacity covered the period 18 June 1997 to 23 October 1997, a period of approximately 18 weeks. At the time of accident 1 the plaintiff was earning $840 net per week. $840 x 18 = $15,120. Interest for 6.17 years at 4 per cent = $3,731.62.
Loss of superannuation benefits are calculated at .07 per cent = $1,058.40 plus interest of $261.61 = $1,319.61.
There is no future economic loss. The plaintiff recovered and returned to full time work after accident 1.
The plaintiff seeks compensation for past and future services but there was no evidence given of any past or future services needed by him or provided to him.
There are no future medical expenses.
The amount of special damages was agreed but the plaintiff is only entitled to recover special damages arising from accident 1. I am unable to find any such damages on the schedule provided to me.

General damages for pain, suffering and loss of amenity

The plaintiff suffered considerable pain during the first six or seven weeks as a result of the crushing injury to his neck and left shoulder. As he recovered from that injury his lower back pain radiating down into his left leg caused him further pain. There is no doubt that these injuries interfered with his enjoyment of life although the evidence showed that he had discontinued ten pin bowling and pistol shooting before he commenced employment with the defendant. Taking account of the length of time before he recovered and the degree of pain he suffered I award general damages of $20,000.

Summary of award

Past loss of earning capacity  $15,120.00
Interest at 4 per cent  $ 3,732.00
Past loss of superannuation benefits                   $ 1,058.00
Interest at 4 per cent  $     261.00
General damages  $20,000.00
Total award  $40,171.00