Goss v Mount Lyell Mining and Railway Company Ltd
[1991] TASSC 100
•5 November 1991
94/1991
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Goss v Mount Lyell Mining and Railway Company Ltd [1991] TASSC 100; A94/1991
PARTIES: GOSS, Wayne Gordon
v
MOUNT LYELL MINING AND RAILWAY COMPANY LTD
FILE NO/S: 134/1988
DELIVERED ON: 5 November 1991
JUDGMENT OF: Zeeman J
Judgment Number: A94/1991
Number of paragraphs: 29
Serial No 94/1991
List "A"
File No 134/1988
WAYNE GORDON GOSS v MOUNT LYELL MINING
AND RAILWAY COMPANY LTD
REASONS FOR JUDGMENT ZEEMAN J
5 November 1991
INTRODUCTION
The plaintiff is, and was at the time of the events giving rise to this action, employed at the defendant's copper mine at Queenstown as the driver of a Wagner bogger, which is in the nature of a front end loader and which is used underground. On 30 June 1987 the plaintiff was driving the bogger along the main decline of the mine. The bogger's bucket contained a load of road metal. Whilst the plaintiff was so driving the bogger, it came into collision with a wall of the decline. As a result of that collision, and in circumstances which I examine in greater detail, the plaintiff left the driver's seat of the bogger and either fell or was pushed to the ground. The plaintiff claims that as a result he suffered a number of injuries, namely a Colles' fracture of the left radius with subsequent separation and displacement of fragments and shortening of the radius, and pain and bruising to the left leg. The plaintiff claims that his injuries were caused by the defendant's negligence and by breaches on the part of the defendant of a term of the plaintiff's contract of employment that the defendant take reasonable care for the safety of the plaintiff to provide and maintain a safe place of work, safe plant and equipment and a safe system of work. The defendant has denied liability and in the alternative has pleaded that the defendant was guilty of contributory negligence.
NEGLIGENCE ALLEGED
The plaintiff has pleaded extensive particulars of negligence and breaches of agreement. They appear in the statement of claim in the following terms:
"A Failed to provide a safe place of work.
(a)Permitted the drain at the edge of the main decline to become eroded.
(b)Failed to repair erosion in the drain at the edge of the decline.
(c)Failed to provide a warning to the Plaintiff of the existence of erosion in the drain at the edge of the main decline by the use of warning signs, lights, or instructions.
BFailed to provide safe and proper equipment and plant for the Plaintiff's use in that he or they:–
(a)Failed to erect warning signs in the vicinity of the area of the drain which was erroded (sic).
(b)Failed to install a pipe on the scrubber outlet of the bogger motor to carry steam away from the driver's position.
(c)Caused or permitted and/or required the Plaintiff to operate the bogger in circumstances where steam would be produced by the bogger motor which steam would obscure the driver's view of the main decline.
(d)Caused or permitted and/or required the Plaintiff to operate a bogger which produced steam in front of the driving position so that the driver's view of the road was obscured.
(e)Failed to provide adequate lights which would permit the Plaintiff to see the road ahead through the steam.
(f)Failed to provide a canopy or roll cage which was sufficiently strong to resist damage in the event of a collision between the bogger and the decline wall.
(g)Failed to provide a canopy or roll cage which was sufficiently strong to protect the Plaintiff from injury in the event that the bogger collided with the decline wall.
C Failed to provide a safe system of work in that it, he or they:–
(a)Failed to devise and have in operation a system whereby erosion in the drain on the main decline was repaired and/or prevented.
(b)Failed to devise and have in operation a system whereby the main decline was properly maintained and repaired to ensure that the entire surface could adequately support the weight of a loaded bogger.
(c)Failed to devise and have in operation a system whereby the Plaintiff was warned of the existence of erosion in the drain on the main decline by means of warning signs, warning lights and/or instructions.
(d)Caused or permitted and/or required the Plaintiff to operate the bogger while steam produced from the scrubber of the motor of the bogger obscured the view from the driver's position along the main decline.
(e)Caused or permitted and/or required the Plaintiff to operate the bogger when the canopy was not sufficiently strong:–
(i)to resist damage on impact with the wall of the main decline;
(ii)to protect the Plaintiff from injury in the event the bogger collided with the wall of the main decline;"
Those particulars require the examination of evidence relating to a number of discrete matters. The particulars numbered A, B(a) and C(a) (b) (c) relate to the evidence of the plaintiff that there had been a "washout" in the drain at the edge of the road surface of the decline and that he lost control of the bogger as it entered such washout. The inference sought to be drawn from that evidence was that the washout was causative of the plaintiff losing control of the bogger so that it collided with the wall of the decline. The particulars numbered B(b) (c) (d) (e) and C(d) require a consideration of the mechanics of the bogger itself, and in particular its production of steam whilst its engine was running, the effect of that steam on the safe operation of the bogger, and the extent to which any adverse effect of the steam upon safe operation was capable of being avoided by the plaintiff. The particulars numbered B(f) (g) and C(e) were substantially admitted by the defendant, and the real matter for consideration is whether defects in the construction of the canopy were productive of any of the plaintiff's injuries.
THE ALLEGATION OF EROSION
Shortly after 8.00am on 30 June 1987 the plaintiff was driving the bogger engine first, i.e. with the bucket at the rear, down the main decline into the defendant's mine. His purpose was to travel to a working area of the mine where the plaintiff would perform the day's shift. The main decline had a grade of 1 in 9. It was of varying width. At the relevant point it was about 6m. wide. The bogger was about 2.5m. wide. Along the right hand side of the road surface of the decline (looking in the plaintiff's direction of travel) was a drain some 25cm deep and of varying width. In the general area where the bogger collided with the wall, the drain varied in width from about 1m. to little more than 50cm. The variation in width was accounted for to some extent by reason of the decline itself being of varying width, and to some other extent by reason of the edge of the drain not running in a straight line.
There was a paucity of evidence as to precisely what was intended to be conveyed by the expression "washout". However, I infer that that expression was used as indicating that the edge of the roadway abutting the drain had eroded to such an extent that the drain had widened substantially beyond its normal width. As even in its normal state the drain was not of uniform width, a driver familiar with the main decline would have expected some variation in the width of the drain. The significance of a washout could only be that it resulted in the drain being wider than normal and that consequentially it constituted an unexpected hazard. The plaintiff was not asked whether the varying width of the drain as shown on the plan which went into evidence (and which apparently was prepared on the day of the plaintiff's accident) was the normal width of the drain. That plan depicts a perceptible widening of the drain in the area were it appears the accident occurred but that may represent the normal condition of the drain. The plaintiff's evidence as to the critical events was as follows:
"QDid you feel anything like that happen to the bogger immediately before your accident?
AYes.
QAre you able to say which of the wheels appeared to drop?
AWell the front ones went down, or the engine ones went down first. That's what pulled me off the road.
QAnd was it both of them, or just one?
AOne went in first up, then that's what pulled me off the road.
HIS HONOUR: So I understand, so that I understand you correctly, you felt something which suggested to you that one of the engine wheels if I can describe it that way, entered some depression in the road?
AWell, that's what I said. A washout.
HIS HONOUR: Yes, but it felt to you as though it went down into something?
AYeah, it was something deep.
HIS HONOUR: Yes.
QAt the time that that happened could you still see the wall from the drain side of the tunnel?
ANo there was sparks and dust and, I didn't worry about where it was going I tried to get out of the ditch.
QI think you misunderstood me – I'm talking about at the moment the wheel dropped?
AYeah.
QBefore you actually hit the wall?
AYes."
Shortly after his accident the plaintiff signed a report containing a description of the relevant occurrence. Although that description was not written by the plaintiff, I am satisfied that it effectively records the account which he gave shortly after the accident. That description was in the following terms:
"I was driving down the Main Decline, lost vision because of steam exhaust, ran into the drain on the side knocking the cab off the unit. I was forced out with the cab hurting my wrist and leg."
In answer to interrogatories delivered by the defendant, the plaintiff said that he "was unable to see that the drain at the side of the decline had become erroded (sic) and had soft edges", and further that the "drain was not eroded when I had last seen it during the shift which I worked immediately before the shift in which I was injured." I am satisfied that the plaintiff has assumed that erosion affecting the drain resulted in a washout but that that assumption is no more than an ex post facto rationalisation of the cause of his accident. There was no direct evidence that there was such erosion, and I am not satisfied that there was. It follows that none of the particulars of negligence and/or breach of contract relating to the alleged erosion of the drain have been made out.
THE RELEVANCE OF THE EMISSION OF STEAM
The second category of particulars relates to the production of steam by the bogger whilst in operation. The bogger was a diesel driven vehicle. The diesel motor was productive of fumes which could be hazardous underground. In order to reduce the emission of diesel fumes, the bogger was fitted with a scrubber system operating as a filter. Exhaust gases were blown through a tank of water thereby reducing the quantity of toxic substances emitted. By reason of that process the temperature of the water contained in the tank was raised so that steam was produced. The steam was released through a pipe which came out under the engine on the driver's side of the bogger. At some time after the plaintiff's accident the bogger was modified so that the steam exhaust pipe came out on the opposite side of the bogger and therefore at some distance from the driver's position.
The defendant's mine was fitted with a number of ventilation fans. The effect of the relevant ventilation fans was that the air in the main decline was sucked down the mine, i.e. in the same direction as the direction of the plaintiff's travel at the time of his accident. Mr Peter North, a senior mining engineer in the employ of the defendant, gave evidence about the ventilation system and as to the velocity of the air flow in the main decline. His evidence satisfies me that normally the velocity of air sucked down the main decline was about ten km/h or a little more. The plaintiff agreed that the ventilation system was working normally at the time of the accident. The significance of this evidence is that with air and the bogger both moving in the same direction at similar speeds, one might expect that the steam produced by the scrubber system would tend to envelop the bogger, seriously affecting the visibility available to the driver. On the other hand, if one moved significantly faster than the other, one would expect the steam to move ahead of the bogger or to be left behind by the bogger, depending on the relative velocities. The plaintiff agreed with the proposition that he was aware "that the steam will go ahead of you quicker the slower you go". Whilst claiming that his visibility was very seriously affected by the extensive amount of steam which surrounded him, he also agreed that he might have been going too fast or "over–revving" the motor. At the time of his accident, the plaintiff had been engaged as a bogger driver for some fourteen years and might be expected to have been very familiar with its operations and with the physical features of the main decline. I am not persuaded that the mere production of steam significantly would have affected the plaintiff's visibility, unless the bogger and the steam were moving at about the same velocity. I am satisfied that the plaintiff was driving the bogger at a speed approximately the same as the air velocity, and that as a result the steam emitted remained in the vicinity of the bogger. That resulted in the plaintiff's visibility being seriously reduced.
Whether or not those circumstances are sufficient to attract liability on the part of the defendant is to be determined in accordance with the principles laid down by Mason J in Wyong Shire Council v Shirt (1979–1980) 146 CLR 40, at pp47–48, where his Honour laid down the relevant principles in the following terms:
"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 plaintiff. 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 remain to be considered with other relevant factors."
The application of those principles leads me to the following conclusions. Requiring the plaintiff to drive a bogger, having the characteristics to which I have referred, down the main decline involved a risk of injury to the plaintiff if he drove it at such a speed that it became enveloped in a cloud of steam. That risk was easily capable of being avoided by the simple precaution of driving the bogger at a speed significantly less than the air velocity. The plaintiff was entirely aware of the risk and the precaution which could be taken against that risk. The standard of response to be expected of the defendant was one not extending beyond ensuring that the plaintiff was aware of the risk and the precaution to be taken to avoid that risk. Whether or not the defendant took that step, the fact is that the plaintiff was well aware of the appropriate precaution. I am not satisfied that the relocation of the steam exhaust pipe was something which materially affected the extent to which steam, once produced, would affect a bogger driver's visibility. The evidence does not enable me to conclude that requiring the plaintiff to drive a bogger which produced steam was in itself any breach of duty on the part of the defendant. I am not persuaded that the provision of any further lighting in the decline would have improved the visibility available to the plaintiff. I am not satisfied that any of the particulars which relate to the production of steam have been made out.
THE STATE OF THE CANOPY
I finally turn to those particulars which relate to the canopy. I am satisfied that the construction of the canopy was quite inadequate. It may be contrasted with the bull bar at the engine end of the bogger which was of much greater sturdiness. I am satisfied that upon impact with the wall of the main decline, part of the canopy became detached from the bogger and that occurred because of the inadequate construction of the canopy. I infer that the primary function of the canopy was to provide a measure of protection to drivers in the event that there were any falls of rock or other materials from the roof of the decline, or any other part of the mine in which the bogger was working. It has not been suggested that it was not perfectly adequate for that purpose. It might reasonably have been anticipated that a bogger working in the conditions of an underground mine might, from time to time, come into contact with other objects. The nature of the bogger was such that if the driver's side were to come into contact with the wall of the decline, the canopy was the likely initial point of contact. It was incumbent upon the defendant to provide the plaintiff with a bogger which was constructed in such a way that the canopy, or parts thereof, would not become detached easily from the bogger on impact. It ought to have been obvious to the defendant that such a detachment would give rise to the immediate risk of injury to the driver sitting in the driving compartment under the canopy. It would have been a relatively simple and inexpensive exercise to construct the canopy out of sturdier materials similar to those used for the bull bar and to have had the same attached very firmly to the body of the bogger. The defendant did neither. Those failures amounted to a breach of the defendant's duty of care. I find that the particulars numbered B(f) (g) and C(e) have been made out. However, those findings do not avail the plaintiff unless it can be said that that breach of duty on the part of the defendant was causative of the plaintiff's injuries. Two competing versions of the relevant facts were contended for. It was submitted for the plaintiff that I ought to be satisfied that upon portion of the canopy becoming detached, it pushed the plaintiff out of the driving compartment whereby he fell to the ground of the main decline, and that his injuries were caused either by the canopy coming into contact with his body, or by his fall. It was submitted for the defendant that I could not be so satisfied, and that I could not be satisfied that the piece of the canopy which became detached played any role in the plaintiff's injuries. I am satisfied that upon the bogger coming into contract with the wall of the main decline, the force of the impact caused portion of the canopy to become detached from the bogger and that that portion came into contact with the plaintiff's body, which in turn caused him to fall out of the bogger on to the ground of the decline with a piece of canopy on top of him. In making those findings I generally accept the plaintiff's evidence on this aspect of the matter. It is consistent with his report of the event made later on the day of the accident, to which I have already referred. The plaintiff's injuries were caused either by the canopy or the fall or both. I am unable to find the cause of all of the plaintiff's injuries with greater particularity but do not need to do so. On any view the defendant's breach of duty was productive of the plaintiff's injuries.
Accordingly, I find that the plaintiff has established liability on the part of the defendant.
CONTRIBUTORY NEGLIGENCE
The defendant has pleaded that the plaintiff was guilty of contributory negligence. The particulars alleged are as follows:
(a)that the plaintiff drove at a speed which was excessive in the circumstances;
(b)that the plaintiff failed to stop or slow down when his vision was obscured; and
(c)that the plaintiff failed to properly steer or control the bogger so as to prevent it from striking the wall.
The factual matters relevant to those particulars are closely interwoven. For reasons which I have already expressed, I am satisfied that the plaintiff was driving at a speed which was excessive. He came close to admitting that when he said that he might have been going too fast. It was reasonable to drive the bogger approximately down the centre of the main decline. Had the plaintiff done so, then the plaintiff would have had at least half a metre clearance from the edge of the drain. The plaintiff drove too close to the drain. He did so because he could not see where he was going. He could not do so because the steam being emitted from the bogger effectively enveloped the bogger. That was the product of his excessive speed. All of the particulars are made out, and constitute contributory negligence on the part of the plaintiff. The issue of contributory negligence is to be approached upon the basis that the defendant failed to provide safe plant and equipment, that is plant and equipment which fell short of being to a standard which would not expose the plaintiff to the risk of injury including any risk which might arise as a result of the plaintiff's own inadvertence or negligence. The circumstances in which the plaintiff was required to perform his work must be taken into account. The work was done underground in what effectively was a tunnel. The bogger was a machine which was somewhat difficult to control, not having conventional steering. There was present a drain which it has not been suggested ought not to have been there, but which nevertheless created a risk of injury should the driver of a bogger permit his machine to enter it. The production of steam required the plaintiff to exercise judgment so as to regulate his speed, taking into account the air velocity. Against those considerations other matters are to be balanced. The impeding effect of the steam was not of sudden onset. The plaintiff had driven the bogger for a distance of some 100m. from the point at which he entered the portal until the point at which he lost control of the bogger. Of that, the last 35m. had involved travelling down the decline. He had ample opportunity to judge what was an appropriate speed, having regard to the prevailing conditions and the way in which they affected the steam produced.
APPORTIONMENT OF LIABILITY
I am required to apportion liability. The statute requires me to have regard to the plaintiff's "share in the responsibility for the damage." This requires a comparison of culpability in the sense of the degree of departure from the standard of care required of the reasonable person (Pennington v Norris (1956) 96 CLR 10, at p16). In my view, the defendant ought to bear the bulk of the responsibility. As the plaintiff's employer, it had a duty to take reasonable steps to preserve his safety. Its departure from that duty was significant. Had it not departed from that duty the risk of injury to the plaintiff as a result of the collision would have been substantially reduced. I attribute responsibility for the damage done as to 80% to the defendant and as to 20% to the plaintiff.
THE PLAINTIFF'S INJURIES
I proceed to deal with the question of damages. The evidence satisfies me that as a result of his accident the plaintiff sustained a Colles' fracture of the left radius, which fracture was reduced on the day of his accident. Plaster was applied. On 31 July 1987 the plaster was removed, and the medical records record that there was a good union clinically. The plaintiff returned to work on 27 August 1987. Whilst I accept the plaintiff's evidence that the canopy came into contact with his left leg, I am not satisfied that the plaintiff suffered any significant injury as a result. I am satisfied that his leg was bruised but the resultant pain was of short duration. Whilst I am satisfied that the plaintiff has a disabling condition of the left leg (the precise nature of which was not made clear) it has not been suggested that this condition is a result of the plaintiff's accident. To the contrary it was accepted that the plaintiff suffered from this condition prior to his accident.
On 26 October 1987 the plaintiff consulted a surgeon, Mr Etheridge, with sensory loss of the left middle and ring fingers, and complaining of volar forearm pain at night. I find that the plaintiff did then suffer from those symptoms. On examination, Mr Etheridge found that the radial and ulnar styloid processes in the left wrist were level, indicating a gross shortening of the radius. An x–ray examination disclosed that the plaintiff had a healing comminuted fracture of the distal radius with separation and displacement of fragments and shortening. The volar bone was sitting up on the distal radius indicating a likelihood of median nerve involvement. Mr Etheridge described the fracture sustained by the plaintiff as one of the worst Colles' fractures that he had seen, with a poor union. On 3 November 1987 Mr Etheridge performed left carpal tunnel relief which substantially relieved the plaintiff's symptoms. The plaintiff had time off work as a result of his surgery and resumed his duties on 2 December 1987. Since then he has remained in the employ of the defendant as a bogger driver. Mr Etheridge again examined the plaintiff on 24 August 1988. He then found that the grip in each hand was good and that there was no longer any sensory loss in the fingers. Mr Etheridge expressed the view, which I accept, that in cold weather the plaintiff will continue to have aching in his injured wrist for two to three years and that he will continue to experience some swelling in the wrist for up to three years. Mr Etheridge thought that the wrist would gradually settle over a period of three years but that there was a likelihood of some permanent pain because of the malunion of the joint. Upon examination of the plaintiff very shortly prior to the trial, Mr Etheridge found a loss of muscle bulk in the left arm. He considered that the explanation for that loss was to be found in the plaintiff not getting full muscle power by reason of a disturbance in the forearm, the only disturbance to be found on clinical examination being the fracture sustained by the plaintiff in his accident. Whilst Mr Etheridge conceded in cross–examination that he had not previously measured Mr Goss' forearm and conceded that he was not able to say that the deficiency of muscle bulk had not existed prior to the plaintiff's injury, I consider that the probabilities are such that this loss of muscle bulk was caused by the existence of the fracture sustained in the accident. I accept Mr Etheridge's opinions. On the other hand, I do not consider the lack of effectiveness of grip with the left hand to be a major problem and the plaintiff did not suggest it to be such.
The plaintiff did not suggest that his wrist injury continues to affect him adversely to any substantial degree. He was fairly vague as to his periods of hospitalisation. He complained of lack of ability to sleep prior to Mr Etheridge performing surgery on 3 November 1987, but he did not recall whether he took any medication at that time. He complained of some aching in the arm when the weather is very cold. When asked if this affected his sleep, he responded by saying that he had not been a very good sleeper at any time. I accept that the plaintiff suffers pain from time to time in the wrist particularly in cold weather. I accept that the scar on the plaintiff's hand occasionally gives rise to pain when he is required to exert an unusual amount of exertion in the course of changing gears on the bogger. Whilst the plaintiff suffered a serious injury, he has achieved substantial recovery quite quickly. He is able to continue in his employment albeit with some intermittent discomfort as a result of his fracture. I do not consider that his general amenity of life has been significantly affected by his injury. His two leisure time activities of gathering wood and playing golf had already been affected by his earlier leg injury. I am not satisfied that his ability to engage in those activities has been significantly affected by the wrist fracture. I am satisfied that the wrist fracture exposes the plaintiff to the risk of osteoarthritis, although the degree of risk does not appear from the evidence beyond the fact that it is unlikely to occur prior to the plaintiff attaining the age of 55 years. All in all, I tentatively attribute the sum of $12,500.00 to the plaintiff's non–economic general damages.
LOSS OF EARNING CAPACITY
The plaintiff claims that his damages ought to be assessed by reference to inter alia loss of past and future earning capacity. The plaintiff was absent from work from 30 June 1987 to 27 August 1987, and again from 2 to 30 November 1987. I am satisfied that those absences from work were as the result of the plaintiff's injuries. He is entitled to be compensated for his loss of income. There was no direct evidence as to what the plaintiff would have earned during those periods had it not been for his injuries. The plaintiff was paid weekly payments of compensation totalling $6,374.70 during those periods of absence from work. It was common ground that his weekly rate of compensation was based upon his average weekly earnings during the preceding financial year. It was submitted for the plaintiff that upon the evidence, particularly the evidence as to the actual earnings of the plaintiff during that portion of the financial year ended 30 June 1988 when he was at work, the plaintiff would have earned substantially more than $6,374.70 during the periods of absence had he been at work during those periods. I am not persuaded that the plaintiff has made this out, particularly in the light of the plaintiff's evidence that after he returned to work, he worked longer hours than normal, giving as his explanation, "I was making up for what I had off". The defendant did not submit that the plaintiff would have earned less than what he was paid by way of weekly compensation during his absences. I am not persuaded that he would have earned more. Accordingly, the plaintiff's general damages ought to include an amount of $6,374.00 for loss of past earning capacity. In taking that view, I have made no allowance for the income tax payable on that amount. I express my reasons for that when I deal with the reduction to be made in the plaintiff's damages in the amount of workers' compensation payments made.
I turn to the loss of future earning capacity claimed by the plaintiff to have been suffered by him. I am satisfied that the plaintiff is able to continue working as a bogger driver. I am also satisfied that his employment in that capacity by the defendant is quite secure for so long as the defendant continues to operate its mine, at least upon a scale commensurate with that at which it is presently being operated. It is common ground that the life of the mine is such that the plaintiff's employment will not be available to him beyond 1996. The plaintiff's view was that should he no longer be employed by the defendant, his employment prospects would be bleak. Significantly, he did not attribute his lack of prospects to the injury suffered by him in his accident. The plaintiff had a carcinoma of the left tonsil which was treated with deep x–ray treatment in October 1979. In June 1980 he presented with an enlarging mass on the left side of the neck. It appears that he underwent major surgery to the neck to remove a cancerous growth. The plaintiff saw the fact that he had undergone very major surgery to the neck as the major impediment to his obtaining other employment in the future. The plaintiff's perception may well be correct, particularly in relation to any future employment requiring medical fitness ascertained by a medical examination. The plaintiff also suffers from some significant disability to the left leg, the precise nature of which was not explored in evidence, which disability was present prior to his accident. The plaintiff is an unsophisticated man who is obviously hard working. He tended to understate the disabling effect of his various injuries or disabilities. He is able to perform his work as a bogger driver notwithstanding his various disabilities. There is no reason to suppose that his wrist injury will affect the plaintiff's ability to drive a bogger for so long as such work is available to him. He is minded to continue in such work for so long as it is available to him. In the event that such work ceases to be available to him the plaintiff is likely to have difficulty in obtaining other employment. I am not persuaded that his wrist injury would play any part in such difficulty. The relevant factors would be the plaintiff's age, general economic conditions and his neck and leg conditions. I do not overlook the possibility of the onset of osteoarthritis which would accentuate the disabling effect of the wrist injury. Nevertheless the extent to which that possibility might be said to affect the plaintiff's future earning capacity is a matter of conjecture. I heard no evidence as to the degree of likelihood of the plaintiff being affected by osteoarthritis, when that might occur (except that it was unlikely to occur over the next ten years) or the effect of that condition upon his ability to perform manual work.
It may well be that the plaintiff's future employment prospects are bleak, but I am not persuaded that those prospects have been reduced by his wrist injury to any discernible extent.
FUTURE MEDICAL AND HOSPITAL EXPENSES
The only other head of general damages submitted to be relevant relate to the possibility of the plaintiff undergoing an arthrodesis to the wrist with resultant medical and hospital expenses, loss of earnings whilst in hospital and whilst convalescing, and some compensation for the permanent disability in the wrist resulting from the arthrodesis. The plaintiff expressed his intention of not undergoing that procedure. Mr Etheridge gave relevant evidence as follows:
"QNow you've referred to the risk of osteo–arthritis, is that risk caused by the fracture?
AYes, or the late result of the fracture, late result.
QRight, and you say in about ten years he's likely to be suffering from that?
AAt forty five it'd be unlikely before 55.
QAnd what effects does osteo–arthritis have on him, what effects will that have on his use of his wrist?
AThe effect it would have would limit the movement further and that's in a physical sense and increase his pain in the subjective sense. I suppose this would – the object of effect and subjective one – objective one would be limitation – more limitation of wrist movement, subjective one would be increase of pain particularly with use.
QAnd you have indicated you can offer him Feldene to relieve that sort of pain?
AFeldene is effective in chronic arthritic conditions of that traumatic type – yes, very effective.
QIt has other side–effects. What side–effects does it have?
AWell irritation to the stomach – it's like all of that group of anti–rheumatic drugs. They all cause gastric irritation and sometimes ulceration and bleeding from the stomach if used excessively. They have to be used with caution.
QNow there was mention of an arthrodesis. Would that be used to deal with pain, if the Feldene wasn't working?
AWell you would certainly try other drugs before going straight from Feldene to that. There's a lot of them – a lot of new ones still being discovered. He would be treated, conservatively, over quite a long period before arthrodesis would be considered.
QCan you exclude that as a possibility for Mr Goss?
AArthrodesis?
QYes?
AOh no, it could never be excluded in the long term.
QAnd that would leave him with a permanently stiff wrist?
AVery clear.
QAnd what position would it be stiffened?
ADorsiflexion, not an increased, but relative dorsiflexion of the wrist – not that much, but say about thirty degrees dorsiflexion.
QWhy do you set it in that position?
ATo make it so the grip will be adequate. If it was in that position the grip would be inadequate. In other words, he couldn't use his flexor muscles if he didn't have some dorsiflexion. That's called the rest position of the wrist which is when you make a fist roughly – near enough. Well, rest or functional position, that's a better word – the functional position of the wrist – arthrodesis would be in the functional position of the wrist joint, as it is in all joints."
I consider that the evidence leads to the conclusion that it is highly unlikely that the plaintiff will undergo an arthrodesis. The other difficulty I have with this head of damage is that the evidence falls far short of enabling me to quantify what damage might be suffered by the plaintiff if his condition called for that procedure to be performed and it was in fact performed. The evidence suggests that if the procedure is performed it will be at a time at least ten years into the future when the plaintiff may well have little or no earning capacity by reason of non–accident related conditions. At best, the evidence leads me to conclude that there is a risk of osteoarthritis occurring which would at least lead to the plaintiff requiring some medication, although there was no evidence of the cost of such medication. The way in which I propose dealing with this aspect of the matter is to make some allowance for this item, but to do so by somewhat rounding off upwards the total of the amounts which I have tentatively attributed to the heads of general damage.
DAMAGES
In the light of the reasons which I have expressed, I assess the plaintiff's general damages at $20,000.00. It is agreed that the plaintiff's special damages amount to $970.16.
EFFECT OF WORKERS' COMPENSATION PAYMENTS
I deal with the question of payments of workers' compensation. The special damages of $970.16 have all been paid by the defendant pursuant to the provisions of the Workers' Compensation Act 1927. It is agreed that gross payments of weekly compensation totalling $6,374.00 were paid to the plaintiff. Counsel for the defendant has submitted that s.8G of the Workers' Compensation Act requires me to treat the gross weekly payments as going towards the damages to which the plaintiff is entitled. In Harvey v Electrolytic Zinc Co of Australasia Ltd [1980] Tas R 167, at pp168–169, Everett J took the view that the net amount received by a worker, after the employer had deducted the income tax deductions required to be made, was the subject of s.8G(1). His Honour expressed his conclusions in these terms:
"... counsel for the defendant submitted that the amount to be deducted pursuant to s. 8G(1) of the Act should be the total amount of compensation paid by the company, including income tax of $3,528.00, which the plaintiff did not, of course, personally receive. I reject this argument, because, if it was accepted, the plaintiff would be in the position of having been debited with income tax referable to his total accrued economic loss up to the date of the judgment and then, in addition, with income tax paid in respect of compensation under the Act. There is neither logic nor justice in the argument. The sum which should be deducted under s. 8G(1) of the Act is the amount actually received by the plaintiff in accordance with the company's obligation under the Act – in other words the net amount received by the plaintiff after the company had paid the appropriate amount of tax to the Australian Taxation Office."
As a matter of judicial comity I should follow that approach unless I am convinced that it is plainly erroneous or has been affected by binding authority. With the greatest of respect to his Honour, I take the view that as a matter of logic and construction, the approach which he adopted was plainly erroneous, but that in any event it proceeded upon an invalid premise. That premise was that any other construction would be anomalous and would result in injustice. Harvey's case was decided prior to the decision of the High Court in Fox v Wood (1981) 148 CLR 438. That case was concerned with a provision in the Workmen's Compensation Act 1971 (SA) which required that a worker who received damages from a third party in respect of an injury as to which compensation had been paid under the Act to repay to the employer such amount of compensation as did not exceed the amount recovered from the third party. It was common ground before the High Court that the relevant provision required the employee to pay the gross amount of compensation paid. Contrary to the suggestion appearing in the head note of the report of this case at 35 ALR 607, there was no express reference to income tax in the relevant section. The court held that the plaintiff was entitled to recover damages representing the additional loss occasioned by her having to repay the gross amount of workers' compensation when she had had the benefit of only the net amount after tax. The basis for this was expressed by Gibbs CJ, at pp440–441, in the following terms:
"It is established by Cullen v Trappell (1980) 146 CLR 1 that in assessing damages for loss of earning capacity the tax which a plaintiff would have paid on the earnings of which he has been deprived must be taken into account. To assess damages on the basis that the plaintiff has lost his gross earnings, when in fact the earnings would have been subject to tax, and the award of damages is not subject to tax, would give the plaintiff more than he had really lost, and would depart from the fundamental principle referred to in British Transport Commission v Gourley [1956] AC 185, at p 197, 'that the tribunal should award the injured party such a sum of money as will put him in the same position as he would have been in if he had not sustained the injuries.' That general principle must of course govern the present case, but the particular application of it in Cullen v Trappell is not of assistance in determining the question that now arises.
A trial judge, in assessing damages in a case such as the present, must first determine what loss of earnings the plaintiff has suffered, using net earnings as the basis of the assessment. Then the effect of the receipt of the workers' compensation must be considered. The receipt of workers' compensation is not something too remote to be taken into consideration for this purpose. I have referred to this question in Batchelor v Burke (1981) 148 CLR 448 and need not repeat what I there said. If the legislation did not require a plaintiff who had been paid damages to repay the compensation which he had received, clearly the receipt of the compensation would reduce the damages otherwise payable. If, on the other hand, the plaintiff repaid to the employer the net amount of compensation which he had received, so that he neither gained nor lost anything by the receipt and repayment, the question of workers' compensation could for practical purposes be ignored in the assessment of damages. ...
... However, it is obvious that as a matter of fact the respondent received the workers' compensation because she had been injured. Moreover her conduct in accepting the compensation was reasonably foreseeable. Indeed it would be surprising and exceptional for a worker entitled to compensation to refuse it on the ground that he or she might later receive damages; the legislation provides that the worker may receive the compensation notwithstanding the existence of a right to damages, and generally speaking it would be imprudent of a worker not to accept it: for one thing, the claim for damages might fail. The receipt of the compensation was a natural and foreseeable consequence of the injuries, and the repayment is not, as was suggested in argument, a special loss due to the financial embarrassment of the respondent, within the principle of Liesbosch, Dredger v Edison, SS (Owners) [1933] AC 449. The act of the respondent in accepting the payments was not a superseding cause of the respondent's loss on repayment; see Chapman v Hearse (1961) 106 CLR 112, at pp124–125.
The Full Court took the view that the damages for that portion of the lost earnings which was replaced by the compensation should be assessed by having regard to the gross earnings lost, because if the respondent received damages 'assessed on a net after tax basis', but had to repay the equivalent in full, she would receive less than her true loss. Although I agree with their Honours' conclusion, it seems to me that it is not right to regard the question for decision as whether the respondent's loss of earnings is to be assessed after taking tax into account, notwithstanding her receipt of payments of workers' compensation. The question is rather whether the receipt and repayment of the compensation increased the respondent's loss, and if so whether that increased loss was caused by the appellant's negligence and was not too remote to be taken into account. For the reasons I have given I consider that the respondent should be compensated for this additional loss, and that if it were not taken into account the damages would provide inadequate compensation for the consequences of her injuries."
Whilst Fox v Wood (supra) was concerned with a case where a worker was required to repay compensation having received damages from a third party, the principle therein enunciated is capable of equal application to s.8G. The Full Court of the Supreme Court of South Australia had taken the view that to overcome injustice of the type also adverted to in Harvey v Electrolytic Zinc Co of Australasia Ltd (supra) the gross earnings lost ought to be recoverable by way of damages. Whilst the High Court did not agree that that was the correct approach, the result was correct for the reasons expressed by Gibbs CJ It was for those reasons that I assessed the plaintiff's loss of past earning capacity by reference to his loss of gross earnings, although in reality that amounted to two components, i.e. his net loss of earnings and an amount compensating him for his loss in having to allow credit for the gross amount of compensation received.
The approach adopted by Everett J having proceeded upon a premise which was incorrect as is demonstrated by Fox v Wood (supra) I do not feel constrained to follow it. As a matter of statutory construction, a proper meaning must be attributed to the expression "the payment to or to the benefit of that worker of compensation" appearing in s.8G. Plainly the whole amount of weekly compensation, whether paid direct to the worker or paid on his behalf by way of income tax deductions, falls within that expression. The scheme of pay–as–you–earn income tax is that an employer is required to pay over to the Commissioner of Taxation deductions of income tax from wages and salaries according to scales provided for in the relevant regulations. The amounts so deducted and paid over are not determinative of any liability on the part of the employee to pay income tax. They amount to instalments which ultimately will be credited against the employee's liability to pay income tax, if any. If in a particular year of income an employee does not have taxable income, the whole of the amounts deducted will be repaid. If on the other hand tax is assessed, it is assessed on the year's income and the liability to pay the tax comes into existence upon the issue of the assessment. Any deductions of income tax made during the relevant year of income are credited against that liability. Plainly, such deductions are made "for the benefit" of the person from whose earnings they are made.
CONCLUSIONS
In the result, the damages to which the plaintiff is entitled are as follows:
General damages $20,000.00
Special damages 970.16
$20,970.16
Less allowance for 20% contribution 4,194.03
$16,776.13
Less payments of workers' compensation 7,344.16
$ 9,431.97
Accordingly there will be judgment for the plaintiff in the sum of $9,431.97.
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