Hann v Clarence Colliery
[2012] NSWSC 475
•11 May 2012
Supreme Court
New South Wales
Medium Neutral Citation: HANN v CLARENCE COLLIERY [2012] NSWSC 475 Hearing dates: 25-29 July, 4-5 August 2011 Decision date: 11 May 2012 Jurisdiction: Common Law Before: RS HULME J Decision: Verdict and judgment for the Defendant
Catchwords: Negligence - air-lock in coal mine Legislation Cited: Workers Compensation Act 1987 Category: Principal judgment Parties: Russell Noel HANN (Plaintiff)
Clarence Colliery (Defendant)Representation: P: DGT Nock SC/M Vesper
D: M Joseph SC/D Stanton
P: Barry F Cosier & Associates
D: Sparke Helmore
File Number(s): 2010/60690
Judgment
RS HULME J: On 16 June 2007, the Plaintiff in these proceedings was injured in the course of his employment in a coalmine when his wrist became jammed between two doors of an airlock in one of the shafts.
The airlock was formed by placing, some metres apart, two pairs of doors and their frame across the shaft and sealing by bricks or some other building materials between the frame and the boundaries of the shaft. The purpose of the airlock was to minimise the passage of air through the shaft, a pair of doors when shut being roughly airtight. One pair of doors - the "in-bye doors" - opened into the airlock. The other pair - the "out-bye doors" - opened in the same direction, ie, out of the airlock. Differences in air pressure meant that there was a tendency for air to flow from upstream of the out-bye doors through the airlock or any gaps in the sealing and thence downstream of the in-bye doors. At the time of the Plaintiff's injury, he and a co-worker driving a front-end loader were attempting to negotiate the airlock, proceeding upstream in the air-flow. The normal method whereby this would be done would be to open the in-bye doors, enter the airlock, close the in-bye doors, open the out-bye doors, leave the airlock, and then close the out-bye doors.
The evidence indicates that each of the four doors is 2 metres wide. There is some conflict in the evidence as to the length and width of the airlock. I shall refer below to this evidence but it appears that the length of the airlock was at least 8.9 metres and its width something over 4 metres. The evidence as to the width of the doors and of the returns or walls between the door frame and the sides of the shaft so indicates.
The front-end loader referred to was by brand an "Eimco" and was so referred to generally in the evidence. Because the size of the Eimco relative to the size of the airlock undoubtedly contributed to the Plaintiff being injured, I should refer to it. A plan included in the report of Professor Thomas indicates the Eimco in standard configuration was 8.4 metres long although that length could be reduced somewhat by movement of the bucket. The machine width varied between 1830 mm and 1990 mm and the bucket was 2100 mm wide. The evidence indicated that probably a larger than standard bucket was on the machine at the time but I do not regard the evidence as to the extent to which this increased the length as, on its own, sufficiently firm to be relied on. I accept however that it is probable that this larger bucket increased the length of the machine to some extent. There is also, in the form of a Minute referred to below, further evidence of the actual length.
The Eimco is an articulated vehicle. Its rear is not in one plane and does not meet the sides of the vehicle at right angles; the outside thirds of the rear of the vehicle are angled. The result of these two factors is that, as Professor Thomas said, given space to the side of the vehicle its length can be further reduced to some extent.
On the day in question, according to the Plaintiff, the Eimco was driven close to the in-bye set of doors by a co-worker, Mr Troy Cameron. The vehicle stopped. The Plaintiff, then on foot, removed some items out of the bucket of the Eimco. The Plaintiff then opened the doors which opened into the airlock and away from the Eimco. The Plaintiff then placed the items he had removed from the bucket in an area to the side of the shaft and outside the airlock. While he was doing this, Mr Cameron drove the Eimco into the airlock and again stopped.
The Plaintiff then walked into the airlock and reached a position near the left rear corner of the machine. He said that he grabbed the nearby door with his right hand to close it, pulled the door and it hit the back of the Eimco. He asked Mr Cameron to move forward. He said that he thought his "instruction" to Mr Cameron was, "I need an inch, mate."
The Plaintiff was challenged in respect to the measurement, it being put to him that the lengths of the airlock and Eimco were both 8.9 metres and that the machine therefore had to move more than a metre in order for there to be clearance for the in-bye doors to close. The Plaintiff was firm in his denial of this.
The Plaintiff said that as soon as the Eimco moved, he felt a current of air and the door he was near swung at him. He put his hands on it to stop it from knocking him over, skipped back with it, trying to control its closing until it hit the door frame. The Plaintiff said that he feared that it would knock the airlock out - by which I understand him to mean damage the in-bye doors or supporting structure. At that stage and while the Plaintiff's arm or hand was still on the door, the other door of the pair slammed on the Plaintiff's right wrist jamming it between the doors.
The Plaintiff screamed, Mr Cameron came and tried to pull the doors apart but could not. Mr Cameron then returned to the Eimco, drove it through the upstream doors and closed them. He then returned to the downstream doors which he was then able to open and help the Plaintiff.
It was suggested to the Plaintiff that he should have walked between the Eimco and the side of the shaft. However for some distance that would have entailed the Plaintiff walking between one of the open doors and the Eimco and while the Plaintiff agreed that if he had walked far enough in that would have placed him out of any risk associated with the doors, he said that there was a greater risk walking between the Eimco and the open door. He added that the hydraulics on the Eimco were not very good and the miners had been told not to go near the back of those vehicles because of the hydraulics. Where he was, he was out of the articulate swing. (I note that Professor Thomas' evidence as to the manoeuvrability of the Eimco provides some support for the Plaintiff's evidence of instructions.)
It was also put to the Plaintiff that he could have positioned himself immediately behind the Eimco and moved forward with it. He agreed but added also that he did not do this because he had to go to the door to grab it to shut it.
The Plaintiff denied that he knew when he was standing near the door he intended to close that Mr Cameron was going to crack open the upstream set of doors. He said that he did not know before the accident that the bucket was going to hit the upstream doors.
There are lights on the front of the Eimco. The Plaintiff said that he could not see where the bucket was in relation to the upstream doors nor whether those doors were open or closed but he also agreed that he did not look. He said that he did not know when he asked Mr Cameron to move forward how close to the upstream doors the bucket of the Eimco was or that the bucket would hit those doors or that Mr Cameron was going to open those doors.
He denied that there was a risk of the upstream doors being opened if Mr Cameron drove forward. Although his evidence in this regard did not come through as clearly as it might have, the tenor of it was that he believed that there was space in the airlock for the Eimco. The Plaintiff also said that he had never seen doors cracked (open) as occurred on the occasion of his injury.
Asked why he could not see in the lights of the Eimco whether the far doors were open or closed, the Plaintiff said that the vehicle was in front of him and he could not see over it.
The Plaintiff also said that he had no idea that the cracking of the front doors would impact on the back doors. I take his answer three questions later to be a recognition now of the possibility that such could occur.
The area where the accident happened was not one where the Plaintiff usually worked. He and Mr Cameron had passed trough the airlock earlier that night in a much smaller vehicle but the Plaintiff had not taken the Eimco to this airlock previously.
There were also admitted into evidence some business records. The Defendant's Incident Report Form, Exhibit F, records under the heading "Immediate Actions taken by Deputy/Supervisor/Person":-
WHY DON'T EIMCO FIT THROUGH DOUBLE DOORS!!!
Under the heading "Action Required" it is noted, "Doors repositioned to enable adequate space for Eimco + trailer".
The Defendant's "Notifiable Incident Information Form", Exhibit G, records:-
Route (sic) cause was the double doors not far enough apart to allow passage of Eimco
And, under a heading of actions taken to prevent the incident from happening again,
Stopping erected and doors moved farther apart. Adequate air lock now created.
A "Coal Notification of Incident Form" from either the Department of Primary Industries or Department of Mineral Resources, Exhibit H, contains similar entries. A minute annexed indicates that the mine standard required doors to be set apart to "allow passage of an Eimco and trailer". It described that "apparent cause of the incident" as "Double doors not installed far enough apart to allow passage or Eimco" and was signed by the Production Superintendent. One document annexed indicates that the mine standard required doors to be set apart to allow passage of an Eimco and trailer. The document went on to say that the doors where the Plaintiff was injured were rectified on 17 June 2007 and the mine conducted an audit on all other machine doors and developed a work list to ensure all doors are to standard. An attached Memorandum on the letterhead of the Defendant said that the current standard requires sufficient distance between sets of doors to allow an Eimco towing a trailer to park between the doors and allow the return side doors to be open and that the total minimum clearance required between door sets is 22 metres. An annexed Mine Safety Operations Investigation Decision Form contains the notation "mine history (for this event) - rare".
The Minute referred to also recorded that the double doors were set 8.9 metres apart and the Eimco (with a bucket and no trailer) was 8.9 metres long.
It is clear from these documentary records that airlocks were a common feature of the mine. It is clear also that, if airlocks were to achieve their purpose yet allow the passage of vehicles or persons, that they needed two sets of doors. It is an elementary aspect of the airlocks' use that only one set of doors should be open at a time and that this could be achieved only if the length of the airlock was sufficient to accommodate any vehicle using it with sufficient additional room to allow the in-bye doors to be shut.
It is elementary also that unrestrained doors, open to roughly 90 degrees (as these were) in any situation are liable to be blown shut quickly and with considerable force if there is a significant current of air blowing through the doorway. I have no doubt that the standard for airlocks referred to in the documents reflect a recognition of these matters.
It may well be that prior to the Plaintiff's accident, the Defendant had been accustomed to move smaller items of equipment through the airlock in which the Plaintiff was injured, but, be that as it may, once a decision was made to use the Eimco in that area, the Defendant did not ensure that it had a safe system and place of work. Indeed, given the tenor of the post-accident reports as to the alteration of this and other air locks, including the absence of any suggestion of difficulty or undue cost in altering them, I am satisfied that the Defendant did not take reasonable care prior to the Plaintiff's accident to have a safe system and place of work or of the Plaintiff.
In totality the evidence makes it clear that the principal cause of the Plaintiff's injury was that the airlock was, in practical terms, too short for the Eimco. Probably the airlock was in absolute terms too short for the Eimco to fit in leaving sufficient room for the in-bye doors to be shut. Given that Mr Cameron was not called, and the evidence as to the lengths of the Eimco and airlock was not precise, one should recognise the possibility that the vehicle might have fitted in and that the cause of the out-bye doors being opened was that Mr Cameron drove into them as the result of misjudgement as to precisely how much room he had. It is of course theoretically possible that there was adequate room and that Mr Cameron simply drove into them due to an inability or failure to stop the vehicle prior to it hitting the doors. However, this was not suggested either in evidence or more importantly, in the Defendant's records as to the cause(s) of the accident and accordingly I am persuaded that the cause of the Plaintiff's injury so far as the Defendant was concerned was that the airlock was too short for the Eimco.
Was the Plaintiff guilty of contributory negligence? In my view he was not. The relativity between the height of the Plaintiff and the Eimco as depicted on the plan of it included in Professor Thomas' report leads to the view that if the Plaintiff had looked he could have seen the top of the out-bye doors. However, there was no reason why he should have looked. Mr Cameron was driving the Eimco, not the Plaintiff. There was no occasion for the Plaintiff to check that Mr Cameron was doing his job properly. And even if the Plaintiff had looked, the Plaintiff was some 8 metres or so away from the doors, about twice as far away as Mr Cameron. He was in a dark coal mine and it is by no means apparent to me that the little lighting available - which would seem to be the headlights of the Eimco and head lamps of the Plaintiff and possibly Mr Cameron would have lit up such portion of the doors as were visible to the Plaintiff from the rear of the machine to such a degree as to inspire doubt on the Plaintiff's part as to whether the Eimco would fit. The Plaintiff had never come across this problem before and the Defendant's own documents lead to the conclusion that it was unexpected.
Nor do I see any fault on the part of the Plaintiff in asking Mr Cameron to move the Eimco without the Plaintiff himself going to the front of a machine to see if there was space available. And although his request to Mr Cameron to move the Eimco has been referred to as an "instruction", given the respective tasks upon each was engaged, it is impossible to regard what the Plaintiff said as in any way an "order". I see no fault either on the part of the Plaintiff in positioning himself as he did near the rear of the machine. He had no reason not to place himself where he did, nor to foresee the risk of the front doors being opened and the rear doors closing in the way they did. The Plaintiff had at some stage to close the doors and, indeed he had commenced on that task prior to Mr Cameron being asked to, and then moving the Eimco. It was also not unreasonable, if in retrospect unwise, for the Plaintiff to attempt to stop the door he was near from slamming.
It was further submitted on behalf of the Defendant that I should infer that the cause of the accident was that the Eimco was taken through the two sets of doors in one continuous motion. Mr Joseph sought to support the this submission by selective references to various statements or documents but I am satisfied that the events did not occur in any such fashion. I should add to what I have said that, with the exception of his evidence as to not being able to see over the Eimco and notwithstanding an attack on his credibility referred to below, I accept what the Plaintiff said in respect of the circumstances of the accident.
I should add that, in arriving at the conclusions I have, I have not disregarded various Occupational Health and Safety provisions to which I was referred, nor various statements in the report of the opinions of Dr Thomas. To the extent to which they support my conclusions I have not found it necessary to rely on them and I am satisfied that in no significant respect do they argue against my conclusions.
Post-injury working
Following the accident, the Plaintiff was off work until 27 June 2007. He then returned, carried out restricted work or light duties until he resumed normal duties on 13 August 2007. Thereafter, albeit with some time off and some periods when he carried out restricted work or light duties, he continued, subject to a qualification I make below, with his normal duties up until 26 July 2009. He said that he was able to do this by taking a lot of Panadol, Panadeine and, when he got home, beer. While in the carrying out of the work he preferred to use his left wrist, he said that at the end of each shift his right wrist was swollen.
He did during this period work significantly more overtime than he had before the accident. He said that he tried to do as much overtime as he could because he had a number of accounts to meet including a mortgage for a home purchased in 2008 and car payments. Indeed in evidence he said that the mortgage in part motivated him to keep working.
The qualification referred to above is that, during the period when the Plaintiff was allocated normal duties, he was, according to his evidence which I accept, being in part carried by his fellow workers including by allowing him to perform the lighter tasks during overtime shifts.
The Plaintiff's employment records tend to indicate that after mid-2007, his condition worsened as time went on. Immediately prior to the week ending 17 May 2009, he had three weeks off work. He then worked for three weeks and was then off work until and including the week ending 19 July 2009. He then worked for four days. He did no further work for the Defendant.
On 19 August 2009, he participated in a meeting with the Manager of the Defendant colliery and his treating doctor, Dr Haran, a physiotherapist and a Union representative. The Manager was asked if there were any permanent alternate duties available and the Manager indicated there were not. The Coal Industry Workers Compensation arrangements provide for 78 weeks of continued employment while an employee is away receiving workers compensation. After that time, a person's employment can be terminated. The Plaintiff's employment was terminated after the 78 week period which expired on 22 October 2010. It seems that during the first 39 of these weeks, the Plaintiff was paid more highly than in the last 39.
The Plaintiff commenced working at Mitchell's Security Services in the week ending 21 October 2010 - see Exhibit 21.
The Plaintiff's Injury and Degree of Incapacity
In the years since 2007, the plaintiff has visited a number of medical practitioners, both treating and engaged in connection with the litigation. Although there is not complete unanimity, there is little dispute between them. The Plaintiff's right wrist was crushed between the doors. Radiographic examination has showed he suffered an undisplaced fracture of the distal radius into the distal radius ulna joint. Some of the doctors, Dr Smith and Dr Millions (who examined the Plaintiff on behalf of the Defendant) and at least one MRI scan suggest that there were in addition other injuries to the wrist and I find it probable that there were. It does not seem to me that the Plaintiff's symptoms and what was observed by various of the doctors is adequately explained by Dr Yee's diagnosis. There have been some arthritic and other degenerative changes in the joint that I am satisfied are a consequence of the injury. These injuries and changes have manifested themselves in some limitation of movement, and a degree of weakness and pain, the latter made significantly worse by use of the wrist, in particular, bending or twisting of it.
So far as the future is concerned, it seems to me that particularly relevant is evidence of Dr Yee that the problem he saw in the Plaintiff could possibly last for life notwithstanding that he has seen patients with the same injury who have recovered, and Dr Smith's evidence that he thought the Plaintiff's symptoms would continue, there was unlikely to be any further improvement in this condition, unlikely that further treatment would change things and his disability would include inability to use the right arm normally; he would have limitation of grip power, pain with repetitive activities and the possibility of intermittent sleep deprivation because of pain.
It was not in dispute that the injury has rendered the Plaintiff unfit for full-time duties as a coal miner he is unlikely to be able to return to heavy duties. I find that he won't.
However, three of the issues that arise are whether the Plaintiff is as incapacitated as he says, the extent of the impact of the accident on the Plaintiff's life and whether, following the cessation of work at the colliery, his working capacity is fairly reflected in the monies he actually earned. In the context of cross-examination on certificates he had presented to the Defendant the Plaintiff agreed that he was fit for full time permanently modified duties. A question is, "how modified?".
In that connection, Mr Joseph points out that the Plaintiff managed to keep working and increased his overtime in what may be thought to be an arduous occupation for something of the order of two years after the accident. He submitted that the impact of the accident on the Plaintiff would probably be greatest soon after it occurred, though accepted that the amount of time the Plaintiff had off increased in 2008 and 2009.
The evidence as to the extent of the pain that the Plaintiff suffers and has suffered comes almost exclusively from the Plaintiff. In an evidentiary statement of March 2010, he said he still had a lot of pain in his wrist together with restriction, loss of strength and swelling and that he struggled to lift anything over five kilograms. He said that, "these problems prevent me from pursuing many of my hobbies, including jogging which I particularly enjoyed. The jarring in my wrist when I try to jog makes this too unpleasant. My wrist remains quite deformed".
In that statement he said also, "I have difficulty with domestic activities such as mowing the lawn, trimming trees, washing his car, opening cans with a can opener, opening glass jars, cleaning the swimming pool, vacuuming or mopping floors making beds and taking out the garbage. I endeavour to carry out as much domestic work as I can and rely upon painkillers to keep my discomfort under control". In the witness box he said that the pain, which radiates to his little and ring fingers, sometimes disturbs his sleep.
The Plaintiff said that he relied upon pain killers to keep his discomfort under control. He said he spent $12 a fortnight on Panadol and $50 each six months on wrist guards. When he last saw Dr Haran, the latter prescribed Panadeine Forte ($16 per month) and Celebrex (later discontinued as ineffective).
Counsel for the Defendant queried the Plaintiff's claim as to the extent of medication he had needed. The Plaintiff agreed that he had forwarded chemist accounts to the Defendant's workers compensation insurer. Counsel suggested that the total of the bills was only $208 to which the Plaintiff responded that he had stopped sending the account in because they were only $15. The Plaintiff agreed that he produced none in response to a Notice to Produce and had no record of what he had paid since he stopped sending them.
Pain was certainly a recurrent theme in what the Plaintiff told the various doctors whose reports were in evidence.
Dr Yee
Dr Yee was cross-examined. He said that patients with distal radioulnar joint arthritis tend to have no pain at rest, their pain is mechanical, ie, under load, rotation or lifting or in full supination. The pain can be variable and difficult to objectively assess. Lack of activity would be likely to cause reduction, not resolution, of pain. The doctor would expect minimal pain in the absence of activity.
Dr Yee recorded complaints of pain in June 2008 but said that the wrist was normal to inspection. A technetium bone scan of 8 July 2008 showed uptake at the distal radioulnar joint indicating arthritic changes in the joint. In August 2008, Dr Yee told the Plaintiff he should work within his pain limits. There were more complaints of pain in March and April 2009 at which time the doctor noted tenderness on examination. There was further complaint in June 2009 when the Plaintiff said that a cortisone injection had not made much difference.
On 23 June 2009, another bone scan probably showed some improvement but in September 2009, Dr Yee recommended an arthroscopy and considered a partial wrist fusion. In September 2009, the arthroscopy was carried out when a significant amount of synovitis was debrided.
Technetium bone scans of August 2008 and June 2009 indicated that, on the latter date, the uptake was diminished, probably due to the healing of the facture.
According to Dr Yee, degenerative changes found in the Plaintiff's distal radioulnar joint are causative of the Plaintiff's symptoms. Any wrist problem will come from the synovitis, the lining of the joint. That was why some of the synovitis was removed in the arthroscopy. However, Dr Yee's report of 1 September 2009 indicated that the synovitis removed seems to have been in the radio-carpal joint. Dr Yee said at T140 that the distal radioulnar joint was not seen in the arthroscopy.
In October 2009, Dr Yee raised an outside possibility that an ulnar shortening osteotomy - shortening the bone to change the mechanics of the distal radioulnar joint might help. However, the doctor could not guarantee an osteotomy would enable the Plaintiff to resume coalmining. In November 2009, Dr Yee reported the Plaintiff was still getting significant pain.
On 3 August 2010, Dr Yee observed that there was an increased range of motion compared with December 2009. The MRI scan at that stage was the same as an earlier one and nothing in the scan explains any worsening of his condition. Dr Yee said that by August 2010, the Plaintiff's condition had not changed a great deal. There was still wrist pain and tightness in his fingers.
Dr Yee's letter of 15 February 2011 includes the comment that the pain is getting worse. In March 2011, a recent MRI scan suggests degenerative changes in the distal radioulnar joint, something that Dr Yee said was consistent with clinical signs and the technetium bone scan of March 2011 indicated a worsening of the Plaintiff's condition compared with the scan of about April 2009.
In August 2010, Dr Yee expressed the view that the Plaintiff's work should be limited to sedentary duties and he prefers the Plaintiff not doing hands-on and repetitive work. A security officer job is appropriate for the Plaintiff but picking up bundles of newspapers will probably induce pain. Easy work will reduce the likelihood of the Plaintiff requiring surgery.
Dr Smith
Sometime between April and June 2009, Dr Smith gave the Plaintiff an injection into one part of his wrist which improved the Plaintiff's pain temporarily, but the "ulnar" sided pain and the volar forearm pain did not improve implying there were multiple pathologies.
In February 2010, Dr Smith reported the Plaintiff had a reasonably well-preserved range of motion of the forearm and wrist and some tenderness. The Plaintiff was then complaining of pain primarily around the dorsal forearm with radiation through to the volar and ulnar side of the forearm; also of thumb pain; also of pain at night time which interfered with his sleep.
Dr Millons
He saw the plaintiff in October 2008. He said then that some degenerative changes in a radioulnar joint had been demonstrated and there was probably some damage to a terminal branch of the radial nerve. The wrist problem should be treated conservatively and a brace might help.
He said the Plaintiff would need help with lifting more than 10 kilograms and was likely to have ongoing pain and stiffness. If pain and stiffness continued, and arthroscopy or localised treatment of the inferior radioulnar joint were possibilities but these would carry no guarantees of great improvement.
Dr Rea
In July 2009, Dr Rea records complaints of pain, worse with any physical activity and that the Plaintiff's sleep was disturbed by right wrist discomfort. The doctor noted some sensitivity at one point in the wrist, some limitation in extension and ongoing weakness in the right hand and arm. He diagnosed injury to the ligaments between the carpal bones and a possible sprain of a ligament which might require surgery in an attempt to repair or by way of joint replacement. Dr Rea thought it unlikely the Plaintiff would be able to return to pre-injury duties in the then foreseeable future and said he was not fit for full duties.
In March 2010, Dr Rea said the Plaintiff complained of pain, sometimes at rest and sometimes during sleep and experienced discomfort after any strenuous use of the right wrist and hand. The Plaintiff told him that he had to give up touch football as he couldn't pass the ball easily.
On examination, Dr Rea said there was no evident swelling but a groove apparent, running across the dorsal aspect of the right forearm, four to five centimetres above the wrist joint. He noted tenderness in a couple of areas and reduced strength and grip. Consistently, the forearm circumference on the right was less than on the left. He also noted some limitation in movement. This and the tenderness could indicate some ongoing injury or problem. Dr Rea thought him capable of doing work as an unarmed security guard.
In another report of March 2010, he considered the Plaintiff had a percentage loss of use of the right arm below the elbow equivalent to 15%.
The Plaintiff
Returning to the Plaintiff's own evidence, he left school in 1980 at the end of Year 9 when he was 15. He has had a variety of jobs including seven years at the Portland Cement Works until they closed, and 5½ years from 1999 at Apex Belting in Wallerawang, and began working for the Defendant in May 2005 as a Federation miner.
He agreed that he preferred not to work week-ends although said that he would do so if necessary to obtain an income. He agreed that he rarely worked Saturday of Sunday whilst employed by the Defendant.
In his statement of 5 March 2010, the Plaintiff said that since being put off at the mine he had begun looking for alternate employment but, at that time, without success. In evidence, he nominated as jobs he had sought one with JR Richards, one as a storeman or forklift driver with Lithgow Valley Springs and jobs at Wallerawang and Mt Piper power stations. At least in part his efforts concerning these places seem to have been made through the Central West Community College.
He also applied on one occasion to the local Council, saying that the practice was for the Council to hold such applications for three months and if positions became available in that time, the applicant would be notified. He never was.
He nominated as places he had sought employment subsequent to his statement, a BP garage, a Caltex garage and as a Control Room Operator. A feature of most of the Plaintiff's attempts at other employment was that they were made through persons he knew at the various places rather than through employment officers there or in response to job advertisements.
The Plaintiff said that he had the relevant qualifications and thought that he could drive a forklift as he had before. Despite this evidence, my impression is that many forklift drivers have to manually move some of the items they deal with and I incline to the view that the Plaintiff's prospects of finding such a job that does not impose undue strain on his wrist are low. As has been said, on about 25 October 2010 he obtained employment as a security patrolman with Mitchell's Security. At the time of trial he remained employed with that organisation.
The Plaintiff said that the work there has cause difficulty for him, leading to his wrist becoming very sore. The shifts are from 6.00 pm to 6.00 am and particular difficulty occurred when the Plaintiff has been required to work Friday and Saturday nights because the work involved bringing bundles of papers off the footpath into a number of newsagents. On those nights or early mornings the bundles are heavier than on other nights and at two of the newsagencies there are commonly about 14 to 18 bundles. The Plaintiff accepted that he could effect all the lifting using his left arm but not if he was to finish his shift on time and deal with an alarm if one occurred.
The Plaintiff said that he thought that he could physically lift 10 kg, but in the context in which the question was asked, I did not understand this answer to talk of lifting on a regular basis. The Plaintiff requested that he be not rostered on Friday and Saturday nights. It was suggested that the Plaintiff had also asked to be not rostered on Sunday nights but I am satisfied that he did not.
Questions were asked whether the Plaintiff could use a trolley. He had raised this with the operations manager of Mitchell's Security, Mrs Deith who gave evidence. On this topic she said:-
It's very hard to get a trolley that can cope with newspapers or bundles of newspapers. In the interests of our patrolman I elected not to use it, for the simple reason the gutters and the footpaths in Lithgow are jutted everywhere. If he turns that trolley a certain way he's going to rip his wrist and he is going to have more problems, plus we have got a flying object in the vehicle if something happens.
I confess I do not find this evidence persuasive. While I acknowledge I am relying on common experience, two wheel trolleys are commonly used to carry large household items such as refrigerators and washing machines and bundles of newspapers do not have a footprint larger than such items. Furthermore, common experience shows that fairly light folding two wheel trolleys are available and I am unpersuaded that the Plaintiff could not load and pull one of these using only his left hand for the short distances involved, even if there are some steps involved. It may be that more than one trip would be required but there is no reason to think that the number of trips per newsagent would exceed what would be required with a bundle of newspapers in each hand. Mrs Deith instanced as vehicles provided to patrolmen an RAV and a Vitara, both of which vehicles have a luggage carrying capacity and I am not persuaded that the possibility of a trolley, even if unrestrained, becoming a missile in the event of an accident provides a good reason not to have one. Of course, luggage restraints are not uncommon.
That said, it is of course Mrs Deith's decision as to how she conducts her business but I would not assume that every employer would take her view.
The Plaintiff said that the more shifts he did, the more pain he was in. He attributed this to the unlocking of locks, opening and closing of the car door, hopping into the vehicle and putting the seat belt on. He said that to the best of his knowledge he got in and out of the vehicle 200 times (a shift). When at work at about the time of trial the Plaintiff opens his car with is right hand but limits the use of his hand in that activity.
Mrs Deith said that the company expected all patrolmen to work every second week-end. A week-end is normally Friday, Saturday and Sunday nights, 6.00 pm to 6.00 am. However, there are regular and casual patrolmen, a fact that, I infer, gives Mrs Deith some flexibility. In December 2010 or January 2011, the Plaintiff approached Mrs Deith and told her he was having problems dealing with the newspapers, and with locks on gates and was experiencing quite a bit of pain. He told her that he had increased his medication but that was not assisting. She tried to accommodate him by rostering him on Monday, Tuesday and Wednesday nights for the first three weeks of January 2011 but then reduced this to Monday and Tuesday because he wasn't coping with the work. Mrs Deith was not asked to identify the respects in which the Plaintiff was not coping.
The Plaintiff had also indicated that he did not want to work on Christmas or Boxing Day. He was rostered on 24 December and because of his request, Mrs Deith chose not to roster him again until 29 December.
In March 2011, the Plaintiff worked eight days. He was not rostered for more because Mrs Deith thought he had some issues about which he needed to prepare. In April 2011, he worked two days during each of the first and last weeks. He had said he was not available from 6th to 24th of that month, a period during at least part of which these proceedings were listed for hearing.
In May 2011, he worked seven nights. He was not included in the roster for more nights because he had some issues and Mrs Deith also had some issues, including the fact that other patrolmen were seeing, and I infer, resentful that the Plaintiff was receiving privileges that they were not. He was rostered for 30 May and it was on that night that he wrote off one of the security vehicles by driving the car into a light pole resulting in the bumper bar being pushed in 1.5 metres. Although the Plaintiff braced himself for the impact with both hands on the steering wheel, the accident caused no increase in pain in his wrist.
Mrs Deith chose not to roster the Plaintiff in June or July because she knew he had a case to prepare and she herself had some issues to deal with, including the training of new patrolmen. However, though not rostered, he worked on 18th and 19th to help out when another patrolman had difficulties.
Mrs Deith also said that the Plaintiff had said the he could not work Valentine's Day and on the occasion of a birthday and during two weeks when he was away on holidays.
Mrs Deith also gave some evidence concerning the deliveries to the newsagents but in a number of respects, its clarity leaves a lot to be desired. One example is that she appeared to say that each bundle of newspapers on Thursday, Friday and Saturday nights could be 6 or 8 kilograms heavier than on Monday mornings although it is possible that she was talking of the total weight of a bundle on the three nominated days. Mrs Deith did say that all of the vehicles used in the business had remote access keys.
When dealing with his non-working activities, the Plaintiff said that in 2007, 2008 (and possibly 2009) he was playing touch football but gave this up about 2½ years before the trial in part because of the difficulty in passing a football. He accepted that in 2007 and 2008 he continued to do things around the house including lawn mowing and "a bit" of gardening and maintenance work. He said that his daughter carried out most of the latter. When he carried out these activities he wore the same brace he wore to work, this limiting the twisting and jarring. Since 2009, he has used a small angle grinder on a few occasions and to an extent not stated, a drill and a vacuum cleaner and works on his car. He drives to Canberra nearly every year.
I do not find in this evidence anything inconsistent with most of what the Plaintiff said in his evidentiary statement of March 2010 as to the impact of his pain on many household activities. However, somewhat inconsistent with what he previously said - see [43] above - was evidence he gave in the witness box that he still jogs on about every second day and that an above ground swimming pool at home has not been used for nearly two years (prior to July 2011) due to changes in the fencing requirements for pools. It is to be noted also that the assertion in that Evidentiary Statement that his wrist remained "quite deformed" derived no support from any of the doctors whose reports came into evidence.
Findings
What conclusions should be drawn from all this? So far as one can judge from demeanour and his manner of answering questions, the Plaintiff stuck me as genuine and honest. Against this are the references in his evidentiary statement to having to cease jogging and cleaning the swimming pool when compared with his oral evidence. It is difficult to think that his reference to getting in and out of a vehicle 200 times a shift was other than a, conscious or unconscious exaggeration, even if one took the view that he was talking of a total number of movements. In any event, while to some extent inconvenient, it is possible for a driver to put a seat belt on, and place and turn a key in an ignition switch to the right of a steering column with one's left hand and not using one's right. The Plaintiff's complaints of pain are high when compared with the evidence of Dr Yee. On the other hand Dr Rea's observations of tenderness (probably) and reduced forearm circumference (certainly) are objective signs tending to support the Plaintiff's complaints about his wrist.
He has a good work history both before working for the Defendant and after the accident but prior to his ceasing to do so. I accept his evidence that he made efforts to obtain work earlier but the coincidence of him finding employment at the time his payments from the Defendant ceased and not in the 12 or 18 months earlier tends to suggest that the event was at least in part inspired by necessity. The number of shifts he has not done while working with Mitchell Security, without apparent complaint that there were not more, also tends to argue against him being much motivated in the last few years to work full time.
In the result, I am disposed to accept most of the Plaintiff's complaints of pain, that in consequence he has much modified the use of his right wrist and therefore arm, I am not inclined to accept that his condition is as disabling as he says. In short, the Plaintiff, who bears the onus, has not persuaded me that he is as incapacitated as his case asserts.
That said, his working capacity is appreciably less than it was. Not only can he not carry out the work of a coal miner or other heavy duties but I accept that he cannot do any job that requires significant use of his right hand. He did not suggest, and there is no other evidence, that he could not do the work of a console operator in a service station but I have some doubt whether, given the extent of use of his right arm that would probably be required in that occupation, he could carry it on for five normal shifts a week.
Damages - Non-economic Loss
The parties agree that these fall to be assessed pursuant to the provisions of s 151G and s 151H of the Workers Compensation Act 1987. Section 151G relevantly provides. (In quoting this and s 151H, I have incorporated in lieu of the original figures included when the sections were enacted, the updated ones on which the parties were agreed):-
151G(2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.
(3) The maximum amount which may be awarded for non-economic loss is $256,900, but the maximum amount may be awarded only in a most extreme case.
(4) If the amount of non-economic loss is assessed to be $43,350 or less, no damages for non-economic loss are to be awarded.
(5)If the amount of non-economic loss is assessed to be between $43,350 and $60,450, the amount of damages to be awarded for non-economic loss is as follows:
Damages = (amount so assessed - $43,350) x 4
The Plaintiff's physical injury - to one wrist and resulting in but partial loss of free use of the wrist, while undoubtedly a significant handicap, can only be regarded as relatively slight when compared with quadriplegia or substantial brain damage or other lesser forms of injury that might come within the description "a most extreme case". Of course, a relatively slight physical injury can, for a variety of reasons, including the circumstances or other physical or psychological state of the person injured, and even the reaction of others, eg, a wife who can no longer tolerate her husband's appearance or changed psychological state, have a major impact on their life and as the cases make clear, it is not only the injury but its impact that has to be taken into account in this area.
But even when those other matters are taken into account, it is impossible to regard the Plaintiff's loss as other than low on the scale of severity of those the Court not uncommonly sees. He was aged 42½ at the time of his accident. From then his life expectancy was something of the order of 38 years. He has had reduced companionship of those with whom he worked (at least since 2009), he has had to give up touch football, he is restricted in his physical activity and in the work he can do around the house and, although he did not say so, he probably has lost some satisfaction in being able to work a full time remunerative week. He does not have the freedom to undertake many forms of employment. Not infrequently he has suffered and continues to suffer pain, at times severe, and has his sleep disturbed by it. He did not say that the reason he no longer plays golf was the injury but even if it was, I am unable to see that the Plaintiff's non-economic loss reaches, in round figures, one-sixth or 17% of a most extreme case. While I have no doubt that, but for the terms of s 151G or a similar provision, I would assess the Plaintiff's non-economic loss as well in excess of $43,350, forced to value and compare his loss with the figure of $256,900 for a most extreme case, an assessment of the Plaintiff's non-economic loss does not result in a figure as great as $43,350. Accordingly, s 151G(4) requires that I award the Plaintiff nothing for his non-economic loss.
Damages - Economic Loss
Section 151H of the Workers Compensation Act relevantly provides:-
151H (1) No damages are to be awarded for economic loss unless the injured worker has received a serious injury or dies as a result of the injury.
(2A) A serious injury is, ...
(a) An injury for which the compensation otherwise payable under s 66 for the loss or losses resulting from that injury is, in the opinion of the Court, not less than 25% of the maximum amount from time to time referred to in s 66(1), or
(b) An injury for which damages for non-economic loss of not less than $60,450 are to be awarded in accordance with the division (whether or not compensation is payable under s 66).
In light of the conclusions reached in the last paragraph of the immediately preceding section of these reasons, the terms of this section mean that the Plaintiff can recover nothing for economic loss. Clearly there is much to be said for the view that the result is unfair but that is what Parliament has enacted. However, because if there is any appeal from my decision, an appeal court may take a different view, I should add the following remarks.
The periods for which the Plaintiff claims past economic loss are those set out in paragraph 26 of Exhibit B. Mr Joseph did not dispute the weeks within this period for which the Plaintiff said he was receiving workers compensation. Mr Joseph also said he accepted paragraph 26. However, although Mr Joseph was not as clear as he might have been, he seems to have objected to the Plaintiff recovering anything for those periods when he was on restricted or light duties.
However, consideration of Exhibit 1 and a comparison of that and paragraph 26 shows that the Plaintiff was not paid by the Defendant for those weeks when he was on light duties. Thus, I am satisfied that, leaving aside other factors, in principle any damages for economic loss should include lost income for those weeks.
The Plaintiff submitted that his loss of income should be calculated upon the assumption that, but for the accident, his weekly earnings for the relevant periods would have been the figures in the final column of the following table.
Period
Plaintiff's net weekly earnings
Net weekly earnings of Mr Cameron
Net weekly earnings of Mr Kearney
Average of Kearney & Cameron
97% of Av. of Kearney & Cameron
2006/2007
1,280
1,420
1,219
1,320
1,280
2007/2008
1,407
1,461
1,385
1,423
1,380
2008/2009
1,644
1,692
1,532
1,612
1,564
2009/2010
Nil
1,666
1,508
1,587
1,539
2010/2011
1,645
1,663
1,654
1,604
Mr Cameron and Mr Kearney were persons who were working on the same shift at the time of the Plaintiff's injury. The 97% was chosen because in the 2006-2007 year, the Plaintiff's earnings were 97% of the average earnings of the two other employees for that year.
While the Defendant accepted the accuracy of the figures advanced by the Plaintiff (and contained in Exhibit J) and it was the Defendant who had supplied the earning figures for Messrs Kearney and Cameron, the Defendant denied that the two employees were comparable. Whatever may have been the position earlier, in a letter of 19 July 2011, which became part of Exhibit K, the Defendant's stance in this regard was made clear. In that letter, the Defendant contended that the appropriate adjustment should be achieved by applying the current enterprise agreement to the Plaintiff's pre-injury earnings. In the Defendant's response referred to, it ignored a request by the Plaintiff that "pursuant to s 43(2A) of the Workers Compensation Act, you supply details of the earnings of at least two" comparable workers.
At the time the Defendant tendered a bundle of documents most of which were admitted as Exhibit 9, the bundle appears to have included the 2006 and 2010 enterprise agreements of the Defendant. Counsel for the Plaintiff objected to the tender on a couple of grounds and I excluded these two documents from the bundle I would allow into evidence at that time. The document was never re-tendered and the matter left.
Details of their classification and some details of the hours and days worked by Messrs Cameron and Kearney, the rate - it may have been a base rate - per hour that they were paid during the 2006/2007 year appear in Exhibit 22 and Exhibit L which documents also contain details of their gross and net pay for each week. However, it is not possible to derive any useful information from a comparison of the hours worked and rate per hour, on the one hand, and their gross or net pay, on the other, from those exhibits. Thus, for each of the weeks ending 16 and 23 July 2006, Mr Kearney is said to have worked five, eight-hour shifts at a rate of $25 per hour but his gross pay in those weeks is said to have been, respectively, $2,136.49 and $1,849.90. In the week ending 10 December 2006, Mr Kearney is recorded as having worked 10 hours per day on Monday to Thursday at a rate of $25 per hour and his gross pay was $1,621.76. Mr Cameron is recorded as having worked the same number of hours on the same days and his gross pay is recorded as $1,640.50. Exhibit 22 records that Mr Cameron worked the same hours on the same days in the week ending 3 December 2006 at the same $25 per hour but his gross pay is recorded as $2,042.90.
The exhibit which records the Plaintiff's working hours throughout 2006-2007 and other years and which otherwise contains similar details to Exhibit 22 and Exhibit L, contains no information as to the Plaintiff's hourly rate or the weekly amount earned.
The exhibits to which reference has been made do record all three persons as having a "PMWK" classification and the location of the work being "UGD" but otherwise there is no evidence upon which one can conclude that, in fact, Messrs Cameron and Kearney are comparable workers to the Plaintiff. It may be that they were, but there is just insufficient information to draw that conclusion. For example, one matter about which the evidence is silent is the extent to which the earnings of each were affected by payments for overtime or loadings for particular shifts.
How then should I go about quantifying the earnings the Plaintiff could be expected to have made but for the accident? Inflation is a notorious fact of modern life and, if not notorious, equally well known is the fact that employee base wages, particularly if those employees are members of unions as Exhibit 1 shows the Plaintiff to have been, increase at a rate generally more but certainly no less than the rate of inflation. I may take judicial notice of the Consumer Price Index. In the years from 2006 to 2011, it increased at annual rates of approximately 2.33%, 4.35%, 1.82%, 2.84% and 3.42%. The average of these is, in round figures, 3% and had it been necessary to calculate the Plaintiff's economic loss, I would have used an increase of 3½% per annum in calculating the wages that, but for the accident, the Plaintiff would probably have earned. The results, rounded, are:-
2006 - 07 $1,280 (Actual)
2007 - 08 $1,325
2008 - 09 $1,371
2009 - 10 $1,419
1010 - 11 $1,469
I should add that subsequent to the hearing I was sent some supplementary submissions and information by agreement of counsel. In that supplementary material while addressing the topic of the Plaintiff's superannuation entitlement, counsel for the Defendant said:-
The current ordinary wage rate pursuant to the Enterprise Agreement on a gross basis per hour is $28.96. The Enterprise Agreement provides for 35 hours as being the ordinary hours of employment. This amounts to gross earnings of $1,013.60 and not the average of gross earnings of Messrs Kearney and Cameron. 9% of $1,013.60 is $91.24.
Counsel for the Defendant said that he accepted the submissions by the Plaintiff's counsel in respect of the superannuation loss. Of course, the figures quoted provide, of themselves, but a partial guide to the Plaintiff's weekly income loss. They may - though the lack of information about dates argues against this - if combined with a detailed analysis of the actual earnings of the Plaintiff and Messrs Kearney and Cameron provide a better basis for the calculation of damages than the figures I have set out in [104] but in the circumstances, I need not take the matter further.
Details of the period when the Plaintiff worked normally, or was on light duties or was on Workers Compensation are set out in paragraph 26 of Exhibit B. Subject to the issue of light duties, Mr Joseph said he accepted these details. Summarised, the periods for which the Plaintiff claims he lost income following the accident and up to the time of trial are:-
2006-2007 2 weeks @ $1,280
2007-2008 9.5 weeks @ $1,380
2008-2009 11 weeks @ $1,564
2009-2010 3 weeks @ $1,539 (to 23/7/09)
26/7/09-24/8/10 (less 6 weeks for hernia)
50 weeks @ $1,539
24/8/10-29/7/11 (less 3 weeks for car accident)
45 weeks @ $946
Based on these figures, the total claim for past wage loss to 29 July 2011 was $157,011. The date 26 July 2009 referred to in the penultimate entry of the immediately preceding paragraph was that last day when the Plaintiff actually worked for the Defendant. As has been said, the 78 week period referred to above expired on 22 October 2010 and the Plaintiff commenced working for Mitchell's Security Services in the week ending 21 October 2010.
In light of the conclusion expressed above it is unnecessary that I proceed to quantify what, in other circumstances, I would have awarded the Plaintiff for economic loss. However, it is appropriate to say that while I am generally disposed to accept the Plaintiff, I am not persuaded that the Plaintiff could not have obtained work somewhat earlier than the commencement of his employment with Mitchell's - say 1/4 of the 78 weeks earlier. Mrs Deith's evidence tends to indicate that the Plaintiff was having some unspecified difficulties with his work there, additional to the Friday and Saturday night shifts but I am not persuaded that (subject to his car accident, and hernia operation and Mrs Deith making the work available) he could not work at least three shifts a week since he commenced working at Mitchell's.
So far as the future is concerned, I expect that if ever the Plaintiff becomes unemployed he will have some difficulty in finding a suitable job. As I have indicated, there are many jobs he is not fit for and even for those where he may be fit, he will be at some disadvantage compared with those who have no physical difficulties at all. Were I assessing damages for future loss, I would probably have done so by way of the provision of a cushion, albeit a substantial cushion.
There were, of course, claims under other heads of damage. I do not understand there to have been any additional dispute concerning those matters which require fact finding by me and given that I do not regard the Plaintiff as entitled to succeed, it is unnecessary that I say more about these further heads.
In summary, while I have found that the injury that the Plaintiff suffered on 16 June 2007 was caused by the Defendant's negligence and that there was no contributory negligence, I am precluded from awarding any damages by reason of my conclusions as to the extent of the damage and the terms of the Workers Compensation Act. It follows that there should be a verdict and judgment for the Defendant.
Decision last updated: 14 May 2012
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