Hawkins v Donaldson Coal Pty Limited
[2010] NSWDC 196
•9 September 2010
CITATION: Hawkins v Donaldson Coal Pty Limited & Ors [2010] NSWDC 196 HEARING DATE(S): 15-18 March 2010
JUDGMENT DATE:
9 September 2010JURISDICTION: District Court - Civil JUDGMENT OF: Sidis DCJ DECISION: 1) Verdict for the defendant.
2) The plaintiff is to pay the defendant’s costs of the proceedings. This order is suspended for a period of seven days to allow either party to list the matter for further argument on the issue of costs.
3) The exhibits will be retained for 28 days.
4) My reasons are published.CATCHWORDS: MOTOR VEHICLE ACCIDENT - Haulage truck exceeding speed limit of which certified to travel on mine site - Responsibility of certifier to ensure limits imposed were observed - Scope of service provided by certifier - Contributory negligence in lighting cigarette while driving fully laden coal truck at speed - Assessment of damages - Whether buffer against income loss warranted where no current decrease in income - Care Needs LEGISLATION CITED: Coal Mine Health & Safety Act 2002
Coal Mines Regulation Act 1982
Civil Liability Act 2002CASES CITED: Fox v Wood (1981) 148 CLR 438 TEXTS CITED: NSW Department of Primary Industries, Guideline for Mobile and Transportable Equipment for Use in Mines (1992) PARTIES: Andrew Hawkins (Plaintiff)
Donaldson Coal Pty Limited (First Defendant)
Allianz Australia Insurance Limited (Second Defendant)
WBW Haulage Pty Limited (Third Defendant)
Zurich Australian Insurance Limited (Forth Defendant)
R K Findlay Pty Limited (Fifth Defendant)
Bloomfield Collieries Pty Limited (Sixth Defendant)FILE NUMBER(S): 2006/00291419 (Previously 396/06) COUNSEL: Mr D Nock SC and Mr C Hart (For the Plaintiff)
Mr A T S Dawson (For the Fifth Defendant)SOLICITORS: Bale Boshev Lawyers (For the Plaintiff)
Colin Biggers & Paisley (For the Fifth Defendant)
JUDGMENT
1 Andrew Hawkins instituted proceedings against a number of defendants claiming damages for injuries he suffered in a motor vehicle accident that occurred on 31 January 2005. At the time of the accident he was employed to drive a loaded coal haulage truck on a haul road between the open cut and coal washery areas of the Bloomfield/Donaldson coal mines north of Newcastle.
2 The proceedings were initially directed at six defendants who were involved in the operation of the mine or responsible for the manner in which the plaintiff was permitted or directed to drive the coal haulage truck. At the commencement of the hearing the Court was informed that claims and cross claims involving all defendants were resolved, with the exception of the plaintiff’s claim against the fifth defendant, R K Findlay Pty Limited.
3 The defendant issued certificates that rated the load and speed limits for the truck driven by the plaintiff at the time of the accident. It denied that it was negligent in the issue of those certificates and rejected the plaintiff’s claims of loss and damage.
4 The issues were:
- 1 The circumstances in which the accident occurred.
- 2 It being conceded that the defendant owed the plaintiff a duty of care:
- (a) the scope of the services the defendant was contracted to perform;
- (b) if within the scope of its services, whether there was a breach of the duty of care;
- (c) if a breach occurred, whether it was causative of the accident.
- 3 The extent of any contributory negligence on the part of the plaintiff.
- 4 The compensation, if any, to be awarded for non-economic loss; loss of income earning capacity; out of pocket expenses and domestic and attendant care.
BACKGROUND
5 The certificates provided by the defendant were issued against a background of the practices adopted by the coal mining industry in New South Wales to haul coal from the mine itself to other parts of a mine site for onwards processing and transport.
6 Mr Findlay, the principal of the defendant, provided a lengthy affidavit in which he set out the circumstances in which he developed the regime under which the defendant issued its certificates. The requirement for the certificates arose out of the practice adopted by the mining industry of using haulage trucks that were rated by the Roads and Traffic Authority for use on public roads. The use of these trucks avoided the cost of acquiring very large and expensive vehicles that were specifically designed for off road coal haulage.
7 Unsafe practices resulted in a number of accidents in which drivers of coal haulage vehicles suffered injury or death. In response to a fatal accident at the Howick Coal Mine in 1995, Mr Findlay was requested by the mine operators to develop a uniform set of standards for coal haulage trucks against which they could be certified as fit for the work that they were required to perform.
8 In addition, mine operators were provided with standards as set out in a document published by the NSW Department of Primary Industries in 1992 titled Guideline for Mobile and Transportable Equipment for Use in Minesi and referred to in evidence as MDG 15.
9 Mr Findlay explained the need to address the tension that arose between the safety of truck drivers and the commercial pressure to move coal from a mine to other areas of a mine site for onward processing in the fastest possible time. One such pressure arose because haulage companies were paid according to the number of loads delivered.
10 The regime that was implemented required Mr Findlay to inspect haulage trucks before they were permitted to work on a mine site. His inspection was directed at components of the truck to confirm that it complied with applicable standards. He then issued a certificate that specified the maximum load and maximum speed under which the truck could be operated when loaded. Mr Findlay explained that load and speed limits were balanced so that the maximum load was increased above that which would be permitted if the truck were to be used on a public road provided that the maximum speed at which it travelled was reduced.
11 Mr Findlay said it was standard practice on all engagements to inspect the mine site by driving over the haul roads. The purpose of this inspection was to identify any specific site feature, such as corners or long gradients, that would affect his certificate. He said the topography of the site affected the speed at which a vehicle was rated to travel safely. He then inspected the vehicle itself. He inspected its turntable, hoist, axles and braking systems and its certification. He took into account Australian design rules and standards.
12 Mr Findlay checked for the following:
1 A Federal Department of Transport compliance plate covering the prime mover and trailer.
2 A gross combination rating (GCM) of more than 115,000 kg.
3 A turntable with vertical capacity between 24 and 28 tonnes so that it could carry the additional weight and provide stability for the trailer when tipping the coal.
4 A hoist with a rating of not less than 50 tonnes.
5 A trailer fitted with dual wheels, that is 4 wheels per axle to increase stability during tipping.
13 In 1996 he reached agreement with the operator of the Howick coal mine to audit the condition and specifications of the haulage trucks operating at Howick.
14 He said that from 1996 the certification system that he devised was adopted throughout the coal mining industry in New South Wales with the result that he was certifying all haulage vehicles used in that industry for on site coal haulage.
ISSUE 1 – The circumstances of the accident
15 At the time of the accident the plaintiff was a truck driver with more than 20 years experience. He was employed by the third defendant, WBW Haulage Pty Ltd, to deliver coal from the Donaldson open cut mine to the Bloomfield coal washery. This involved a 20 minute round trip, excluding loading times, on a haul road that was not sealed. The plaintiff described the centre of the road as compacted and the edges of the road as soft and covered in loose gravel. According to Mr Jamieson, the road alignment was undulating curvilinearii.
16 The haulage trucks operated on a 24 hour basis. The plaintiff’s conditions of employment required that he perform 12 hour shifts, alternating between day and night shifts. No breaks were provided for during the shifts, although truck drivers had the opportunity to take unofficial breaks while waiting to load their vehicles. The plaintiff had driven the truck for a period of five months prior to the accident.
17 On 31 January 2005 he commenced his shift at 4 am. The accident occurred at about 11 am. Shortly prior to the journey on which the accident occurred a water truck sprayed water on the clay based road and it was wet. The truck was loaded but the weight of the load at the time of the accident was not known because the haulage trucks were not weighed until they reached the washery.
18 The plaintiff said he drove from the open cut mine in accordance with the speed limits set by the mine operators. These limits were 40 km/h within the open cut and washery areas of the mine and on the downhill approach to the intersection between the haul road and a mine access road. On some parts of the haul road the limit was 60 km/h. On that part of the road where the accident occurrent the limit was 80 km/h. The plaintiff claimed that truck drivers were directed to travel at 80 km/h on the section of the haul road where that limit was sign posted and that they were admonished if they did not maintain that speed.
19 After he crossed the access road the plaintiff lit a cigarette that he took from a packet that was on the dashboard of the truck. He conceded that he took his eyes momentarily from the road. At that point the truck veered further to the left-hand side on the road than he wished it to be. His attempts to steer the truck back onto the compacted area of the road were unsuccessful. He did not attempt to apply the brakes because he was aware that this was not a recommended procedure for a heavily laden truck. He took his foot from the accelerator but he was unable to steer the truck from loose gravel at the side of the road and it ran into a depression at the road side described by Mr Jamieson as a steep sided table drainiii. The truck then overturned and travelled for a distance along the road.
20 The plaintiff claimed that he lost consciousness twice during the accident. He said he remembered nothing of the period from when the truck left the road until it hit the ground. By this time he had been thrown from his seat.
21 Cigarette Smoking: There were two issues that arose out of the evidence that the plaintiff lit a cigarette shortly before the accident.
22 It appeared that there was a no smoking policy in operation at the mine at the time of the accident. The plaintiff said that the policy was enforced in the area of the mine itself and he did not smoke there. He claimed that no effort was made to enforce the policy in other areas of the mine and that he and other drivers smoked openly and with impunity when driving outside the mine itself. Before starting work at the mine he was taken on a familiarisation run in the truck in the company of a supervisor of the mine. He claimed that they both smoked during that journey.
23 There were a number of documents that recorded that, at the time of the accident, the plaintiff was reaching for his cigarettes or that he dropped his lighter and was reaching to retrieve it. The plaintiff denied both of these suggestions.
24 The report of the ambulance officers who assisted the plaintiff after the accident recorded the plaintiff as having said that he was leaning over for a cigarette and truck went off road. The plaintiff denied having said this. He agreed that other parts of the ambulance report were accurate as to what he said or what occurred and, ultimately, conceded that he might have said words to this effect. He claimed that he was suffering from significant injury at the time and that he was under the influence of painkilling medication so that, if he said those words, they did not record what in fact occurred.
25 The admission form completed at John Hunter Hospital immediately after the accident recorded: bend down to pick up lighter. The plaintiff could not explain this record. He said he had little recollection of the admission procedures at the hospital, remembering nothing until he was woken by his wife when he was lying on a bed in the emergency ward.
26 An investigation report prepared by Bloomfield Mining Operations recorded:
· While driving along the road Andrew said that he reached across to his left to gather his cigarettes and lighter;
· He said he dropped the lighter and attempted to retrieve it.
· Andrew said that in his attempt to retrieve the lighter his truck left the road and drove into the table drain running alongside the edge of the road;
27 The plaintiff said he remembered that someone spoke to him about the accident while he was at the hospital. He did not know who that was. He denied making the statement recorded in the report. He said the configuration of the cabin of the truck was such that it would not have been possible to lean down to retrieve a dropped item.
28 No evidence was called from the ambulance officers, the author of the Bloomfield Mining Operations report or the plaintiff’s employer to contradict the evidence of the plaintiff on this topic.
29 Seat Belt: The plaintiff was not wearing his seat belt at the time of the accident. He said this was because it was defective. The buckle was incorrectly fitted and the belt was not long enough to extend over his significant size to clip into the anchor point to his left. He said he reported this defect to his employer but the belt was not repaired. He accepted that the mine supervisor might have cautioned him about not wearing the seat belt but said he told the supervisor that it was inoperative. The supervisor’s response was that he should report the defect and he did so.
30 No evidence was called to contradict the plaintiff’s evidence on this topic.
31 Mr Simmons, the proprietor of WBW Haulage, provided a statementiv in which he confirmed that the plaintiff reported to him that the seat belt did not fit him because he was a big man. The response to this report, according to Mr Simmons’ statement, was that the plaintiff was instructed to wear the seat belt but that it was known that, when he was out of sight, he removed the belt.
32 Shoes: The plaintiff was wearing thongs at the time of the accident. He said he arrived for work late that morning and did not have time to change into work boots. There was no evidence to suggest that the inappropriate footwear caused or contributed to the accident.
33 Defective tyres: The investigation undertaken after the accident disclosed that eight of the 22 tyres on the truck at the time of the accident were defective. The plaintiff agreed that he was responsible for checking the condition of the truck prior the commencement of every shift and for reporting defects to his employer. He agreed that he did not report the condition of these tyres. This was because he was told to drive the truck until the tyres fell off or until they were no longer driveable. He therefore claimed that he had no control over the condition of the tyres. There was no evidence to contradict these claims by the plaintiff or to suggest that the defective tyres caused or contributed to the accident.
34 Fatigue/boredom: Although suggested by Dr Macleanv at 11 that the conditions under which the plaintiff worked were likely to induce fatigue or boredom leading to errors on the part of truck drivers, the plaintiff denied that at the time of the accident either of these conditions affected his capacity to drive his truck.
35 Speed of travel: The plaintiff said he was travelling at about 70 km/h at the time of the accident. At most the evidence indicated that he was travelling at a speed between 70 and 80 km/h. The plaintiff claimed that this was a speed at which he was directed to travel and that it accorded with speed signs that were displayed on the section of the road on which the accident occurred.
36 Expert Evidence: Mr Jamieson considered that, as a professional driver, the plaintiff’s reaction time could be assessed at 1.5 seconds. If the plaintiff was momentarily distracted, by the time he responded the double tyre width of the wheels on the truck would divert it onto the road shoulder where the presence of a steep graded table drain close of the edge of the carriageway left the plaintiff without options for recovery. Further, the loose surface of the road, the weight distribution of the load and its affect on the centre of gravity of the vehicle resulted in there being insufficient traction in the steered wheels to allow the plaintiff to regain control.
37 Mr Jamieson said the issue ultimately went to the operational speed of the vehicle, although load distribution and an unsealed pavement could affect the capacity of the driver to steer the vehicle in an emergency. At a speed of 40 km/h a driver would have greater period of warning of a deviation and more time to initiate a gentle recovery because there would be a lower friction demand on the steering. In the circumstances, Mr Jamieson considered the speed limit of 40 km/h to be reasonable. At a speed of 60 km/h, the identified problems would be minimised but not eliminated.
38 Mr Findlay, the principal of the fifth defendant, and the other experts called in the case, Dr Maclean and Mr Enkelman, agreed that the plaintiff was travelling at an inappropriate speed when the truck was fully laden. They agreed that at a speed of 40 km/h the plaintiff would have maintained sufficient control of the truck to steer it back onto the compacted area of the road after it veered to the left. They agreed that at a speed of 60 km/h it was probable that the plaintiff would have maintained sufficient control of the truck to steer it back onto the compacted area of the road after it veered to the left.
Issue 1 - Findings
39 There was no evidence to suggest that the defective tyres on the truck, the plaintiff’s failure to wear his seat belt or that the inappropriate footwear worn by the plaintiff caused or contributed to the circumstances in which the accident occurred.
40 In the absence of contradictory evidence. I accepted the plaintiff’s statement that he was not affected by fatigue or boredom.
41 The plaintiff conceded that he was momentarily distracted while lighting a cigarette and that during this period of distraction the truck diverged from its safe course on the haul road.
42 I rejected the contention that immediately prior to the accident the plaintiff was attempting to retrieve his cigarette lighter. The recorded statements concerning the cigarettes and the lighter were made at times when the plaintiff was in considerable pain and under medication. He denied that he dropped the lighter and explained that, given the configuration of the cabin of the truck, it would not have been possible to reach to the floor to retrieve it. In the absence of evidence of the ambulance officer or the investigating officer of Bloomfield Mining Operations that tested the circumstances in which their records were made, I was not prepared to reject the plaintiff’s evidence.
43 Although Dr Maclean checked weighbridge records and noted that the trucks were regularly loaded with more than 50 tonnes, there was no evidence that the truck was overloaded or excessively loaded at the time of the accident. Mr Jamieson reportedvi a load weighing 47.75 tonnes but did not identify the source of this information. At the time of the accident the load had not been weighed and much of the coal was lost when the truck rolled onto its side.
44 The evidence clearly pointed to the speed of the truck as the major contributing cause of the accident. Mr Jamieson referred to the presence of the steep graded drain, the loose surface of the road and the gravitational effect of the weight distribution of the load as factors in the roll over of the truck. However, Dr Maclean and Mr Enkelman agreed that, if travelling at a speed of 40 km/h, the plaintiff would have been able to avoid the consequences of these features on the deviation of the truck and, at a speed of 60 km/h, he probably would have been able to do so.
45 I find therefore that the major contributing factor in the accident was that the plaintiff was driving the truck at a speed that was too fast having regard to the weight of the load that it was hauling and the conditions of the haul road.
ISSUE 2 – The defendant’s responsibility for the accident
46 The defendant issued two certificates that dealt with the load and speed ratings of the truck driven by the plaintiff.
47 The claim made against the defendant, as pleaded, was that the certificates allowed the truck to carry excessive loads and to travel at excessive speeds under load. It was claimed that the defendant failed to make clear the limits of the certificates that were issued.
48 The result of these failures, it was contended, was an increase in the risk of harm to the plaintiff because he was allowed to drive at a speed that was excessive when the truck was overloaded to the point where front steering control was lost and gravitational instability was increased.
49 The factors involved in deciding this issue revolved around the question of whether the certificates issued by the defendant fulfilled the scope of the services the defendant was retained to provide. It was therefore necessary to consider:
1 the scope of those services;
2 whether the services provided were deficient in any respect;
3 whether the deficiencies, if any, negligently allowed the truck to carry excessive loads and travel at excessive speeds under load; and
4 whether the defendant failed to make clear the limits of the certificates that it issued.
The scope of the defendant’s services
50 The defendant’s contract for the services it provided to WBW Haulage was verbal. Mr Findlay said the scope of the defendant’s services was that set out in its 1996 contract with the Howick mine. The scope of the work described in that contract was:
1. Introduction
The consultant will be required to audit the condition and specifications of all the Coal Haulier trucks.
2. Scope of Work
Objective
The Consultant will as an outcome of the auditing process provide a written report on each truck inspected detailing the make, model and capacity of the turntable, hoist capacity, GVM rating and upper tonnage limit (payload). vii
51 On the basis of this description, Mr Findlay considered that the defendant’s obligations were limited to the certification of the maximum payload that could be carried by the truck having regard to its make, model, the capacity of its turntable and hoist and its GVM rating.
52 Mr Findlay said there was nothing in this scope that required the defendant to take account of conditions at the mine in respect of topography, road alignment, grade, construction, loading practices or speed of travel of vehicles. Nor was it the defendant’s function to check that trucks operated at the speeds set in the certificates that it provided.
53 He said certificates were issued once only in respect of any particular truck before it was allowed to operate on a mine site. It was not issued annually or at any set regular interval. He had no role in ensuring that the specifications for the truck were maintained or that trucks operated in accordance with the standards set by the certificate. Once certified, trucks could be used on any mine site in New South Wales so that the operational aspects of any particular mine were not relevant to his certification.
54 In this respect, the defendant was supported by Mr Enkelman whose opinion was that the engineering certificate provided by the defendant was directed to determining whether the gross vehicle mass (GVM) and gross combination mass (GCM) in the vehicle could be upgraded to allow it to be used in restricted areas when subject to controls exercised by the end user and to specific limitations set out in the certificate.
55 He said the certifying engineer was responsible for determining whether the GCM rating set by the manufacturer of the vehicle could be increased and for setting the limits to be applied to allow this to be done. It was a matter for the end user to police and enforce those limitations.
56 Mr Findlay disagreed with Dr Maclean’s opinion that the scope of the services provided by the defendant required it to audit loads actually carried, speeds of travel and loaded combination rollover thresholds.
57 In effect he said the defendant had no contract to audit the operation of the vehicle. Once the defendant certified the vehicle it was the responsibility of the mine operator and truck owner to comply with the limits imposed by the certificate.
58 There was no evidence from Mr Simmons to suggest that the scope of the services for which he retained the defendant differed from that suggested by Mr Findlay. He provided a statementviii on 30 August 2006 in which he indicated clearly that he understood his responsibilities for servicing and maintenance of the vehicles. There was no indication in this statement that he retained the defendant to monitor or supervise these responsibilities.
The certification process
59 The defendant’s evidence about how it performed the services was as follows.
60 The defendant was retained by WBW Haulage to certify the load and speed limits to be applied to all of its trucks in the course of its operations as a coal haulage contractor on the Bloomfield/Donaldson mine site.
61 Mr Findlay said that, before he issued any certificates for this mine site, he inspected it in company with employees of the mine operator. He noted the intersection of the haul road and the main internal access road and a reasonably steep section (referred to in evidence as the Big Dipper) of the haul road that ran down into and out of a gully.
62 Mr Findlay inspected the plaintiff’s truck on 12 August 2002. He detailed in his affidavit the information he collated for the purposes of his certificate in respect of that vehicleix. The result was that the GCM loading was set at 79,000 kg meaning that in Mr Findlay’s opinion the vehicle could safely carry payloads of up to 60,000 kg for not more than 40% of the load cycle and provided its speed, when loaded, did not exceed 40 km/h.
63 The 40% restriction on the cycle time was designed to allow the tyres on the vehicle to recover from the pressure applied by the payload. Mr Findlay explained that when the vehicle was loaded the tyres were at their maximum carrying capacity. It was therefore necessary to allow for the tyres to recover their carrying capacity during the unloaded section of the cycle.
64 Mr Findlay said that he understood that, although in his opinion the truck could safely carry 55,000 to 60,000 kgs, the mine operator adopted a practice of restricting loads to 40,000 kgs. The evidence in fact suggested that loads regularly exceeded 50,000 kgs but that they did not exceed 60,000 kgs.
65 On 17 January 2005 Mr Findlay visited the site in response to a request from Mr Simmons. He met with Mr Simmons and a representative of the mine operator, Cooks Constructions. They requested that he consider increasing the speed limit of 40 km/h to 60 km/h on a part of the Big Dipper.
66 Mr Findlay agreed to vary the speed limit to permit a speed of 60 km/h on this downhill section of the haulage road to allow trucks to negotiate the following uphill section without the need for drivers to stop and change down into the very lowest of their gears. They were unable to undertake this gear change unless they stopped their trucks.
67 He was at the site for about two hours. He drove to the corner of the access road and observed three or four trucks under what he understood to be normal operating conditions. He believed that they travelled at 40 km/h under load.
68 In a letterx dated 24 January 2005 the defendant wrote:
The original mine agreement was set at an average speed over the load cycle of 40 kph, however it has been bought to my attention that on the Donaldson mine site there is a short time in which vehicles when loaded often reach a speed of 60 kph whilst descending a grade, that then allows them to negotiate the following incline easier than if restricted to 40 kph.
In reviewing the incline and grade, the over speeding to 60 kph for a distance of 1.2 kilometers, will not be detrimental to the operation of the vehicles, when one considers the full load and unloading cycle.
The increase in speed over that short distance will not change the vehicles original load rating.
69 Mr Findlay prepared and attached to his affidavit a diagramxi of the 1.2 kilometre section of the road to which he said this variation applied.
70 Dr Maclean identified a number of features he considered to be safety deficiencies resulting from operational management and that he acknowledged were the responsibility of the mine operators or haulage contractors.
71 They included matters such as excessive loading with particular concern for the consequences of overloading on tipping operations; the practice of weighing loads at the end rather than at the beginning of the load cycle so that it was not known until the load was delivered that a truck was overloaded; failure to eliminate excess grades on the haul road and the dip in the road at the bottom of the Big Dipper; the inherent unsuitability of the trucks of the types used for the purpose of heavy road haulage; excessive speed; driver distraction and driver fatigue. Dr Maclean was particularly concerned that weighbridge records indicated that trucks operating in the mine were regularly loaded in excess of the 50 tonne limit imposed by the Department of Primary Industries. He concluded that in the absence of reliable action to audit or enforce payload and speed limits, the accident that the plaintiff experienced was one that could readily be anticipated.
72 To the extent that these alleged deficiencies did not affect the liability of the defendant, I have not considered them further.
73 Dr Maclean was critical of the defendant’s standard practice because it did not consider certain technical aspects of the trucks that it certified. He referred to matters such as the relationship between payload and dynamic rollover thresholds; the effect of the payload on the centre of gravity of the vehicles; wear and tear resulting from payloads; tyre strength, condition and tread pattern; and the requirement and techniques for the installation of speed limiters. In the absence of reference to many technical aspects of the vehicle driven by the plaintiff, Dr Maclean assumed that no consideration was given to the type of wheel base with which it was equipped; the location and height of the turntable; the measurement of tare masses; tare mass deviation; axle mass distributions; trailer dimensions; axle loads; chassis ratings; tyre ratings; and load combination rollover ratings.
74 He considered that, before issuing its certificates, the defendant ought to have taken into account features such as the road on which the haulage trucks operated; topography; safe cornering speeds; curve visibility; the nature of the road surface; driver fatigue; speed limits; road design speed and the regime to be adopted for random inspection to check speed of travel, loading practices and the general condition of the trucks.
75 Dr Maclean was critical of many aspects of the certificate issued in August 2002. He said the certificate provided by the defendant was superficial. He attributed this superficiality to the verbal request made for its production rather than, more properly, a formal request that specified the scope of the service to be provided.
76 He considered that the request made of the defendant that it inspect trucks and provide certificates required a much greater involvement in the operations of the mines in which the trucks were to operate and extended to a more detailed consideration of site operations and technical aspects of the vehicles involved. Further, in his opinion, the defendant had ongoing obligations to check that the trucks operated in accordance with the limits set in the certificates and that they were maintained in good condition.
77 Dr Maclean, while agreeing that the defendant was not retained to check overall mine safety, maintained that defendant should have monitored loading records and regularly checked the speeds at which the vehicles travelled. He agreed that this would be regarded as the responsibility of the mine operators if the defendant’s contract did not permit Mr Findlay to have free access to the mine and its records. However, he said the certificate should have stipulated the monitoring requirements and maintenance regimes for the vehicles. He said Mr Findlay should not have left the mine site without ensuring that a chain of responsibility was established to monitor these matters. He said this was a responsibility imposed on Mr Findlay by reason of his professional standing as an engineer.
78 Dr Maclean’s criticisms of the change authorised by the defendant in January 2005 were:
1 The defendant did not stipulate that the trucks were to be fitted with equipment that would limit their speeds.
2 Mr Findlay did not:
(a) check the measures in place at the mine to enforce speed limits;
(b) audit payload records to confirm that payload limits were not exceeded;
(c) conduct a fully laden test drive;
(d) consider cornering or handling stability when the trucks were driven at 60 km/h;
(e) check records concerning accidents involving trucks operating on the mine.
79 Mr Enkelman considered that speed limiters were unsafe. He said it was possible to adopt an electronic method of limiting speed but this required input from the original manufacturer.
80 He said that the defendant’s certificate was reasonable in the circumstances of its proposed use which was to maximise the carrying capacity of the truck by reference to considerations of the equipment design limits, the stability of the loaded combination and operational safety.
81 A number of issues arose out of this evidence.
82 Inspection of the site: Mr Findlay said that before he issued a certificate he inspected the road, the condition of the tipping pad, gradients into and out of the pit and topography of the mine site in question. He said this inspection had consequences for his certificate and that these features were important in the overall picturexii.
83 At the time of his inspection of the haul road the open cut section of the mine was not operating and the haulage road was not in use. He did not inspect the haul road when the mine was in operation. He said that he understood that all roads within the mine were limited to a speed of 60 km/h in accordance with signs that he sighted. He said he saw no 80 km/h speed signs.
84 He did not view any movement of coal from Donaldson. He made no inquiry about the operating rules on the site. He was never informed of the way in which the delivery of coal from the open-cut mine to the washery was carried out in practice.
85 He said that in any event he put no or little weight on road conditions because he was not responsible for the condition of the road and because he understood that the loaded truck would not travel at a speed exceeding 40 km/h.
86 Mr Findlay stated that he did take into account the topography of the mine site when determining the safe operating speed of a vehicle before issuing a certificate.
87 Mr Findlay did not know how the mine site was operating in January 2005 when he was contacted by Mr Simmons concerning an amendment to the certificates.
88 As far as Mr Findlay was concerned:
Q. You issued all of those certificates without knowing what was actually happening at the pit?
A. I – my audit report is applicable to all mines. How the pit is operated is a requirement, not to report to me, but enforced by the mine department. It is up to the mines to maintain the roads in accordance with their standards. I could have a look at the mine road today and tomorrow it could be in a terrible condition for one or numerous reasons. So I can’t be held responsible for the condition of the road every day when I’m not there. xiii
89 Speed/Random Audit: Mr Findlay said he issued the 2005 certificate on the understanding that all vehicles were travelling at a maximum of 40 km/h loaded. He confirmed that he would not have issued this certificate if he had been aware that they were travelling at 80 km/h because the chances of an accident occurring as a result of mechanical failure was greater when travelling at this speed.
90 He denied that he saw any speed signs indicating an 80 km/h speed limit. He claimed that he saw only 60 km/h speed signs. He said he was certain that the general operational speed of 60 km/h adopted at all mines applied at Donaldson because he saw these signs. He did not inquire what the limit was. He said that, in any event, the speed limit was of no concern because his certificate said that when loaded with coal, the trucks were permitted to travel only at 40 km/h.
91 Mr Simmons statedxiv that an 80 km/h speed limit applied to parts of the haul road. A noticexv issued by the Department of Primary Industries under s 63 of the Coal Mines Regulation Act dated 7 February 2005 reported the findings of the District Inspector of Coal Mines concerning the operation of coal trucks at the Donaldson Open Cut Coal Mine. One of those findings was that the speed limit on the site was 80 km/h.
92 Mr Jamieson said 60 km/h on a loaded vehicle was potentially hazardous having regard to the load. He was concerned at the practice of encouraging drivers to build momentum because it encouraged drivers to speed up on the downhill grade. It indicated that the operation was directed at rapid turnaround rather than safe operations. In this regard he was critical of the mine operators rather than Mr Findlay.
93 Mr Jamieson accepted that a managed increase in the speed of a loaded truck on a descent to allow it to ascend safely the incline that followed was reasonable provided the speed did not exceed the intended design of the loaded truck. In this respect 60 km/h was not outside the intended design.
94 Dr Maclean considered that limiting trucks to 40 km/h on a road that otherwise allowed general traffic to travel at 60 km/h created a potential hazard because traffic that was permitted to travel faster than 40 km/h would want to overtake haulage trucks or would apply pressure to the trucks to speed up.
95 On this basis Dr Maclean appeared to change his position by stating that the coal haulage trucks should have been speed limited to 60 km/h to avoid the risks associated with overtaking and to address the problem created by driver fatigue and boredom that would be generated if limited to a very low speed of 40 km/h. He remained concerned, however, that if the haul trucks were overloaded, there was a risk that at a speed of 60 km/h the tyres could suffer excessive wear and explode.
96 The only practical solution, he said, was strict policing of speed and load limits or the fitting of tachographs to record speeds at which the vehicles travelled.
97 Technical aspects: Mr Findlay said, although not referred to in the certificates, he in fact checked many of the technical aspects of the truck that were referred to by Dr Maclean.
98 Mr Enkelman noted that in preparing the report Mr Findlay took into account maximum axle, suspension and tyre loads based on the manufacturer’s data and Tyre and Rim Association data. Stability was enhanced by limiting the speed. Operating safety and durability were addressed by adding a full load cycle limit of 40%. These considerations decreased the probability of unexpected failure.
99 Tyre durability was addressed by considering tyre strength on the basis of standards recommended by the Tyre and Rim Association. Tread pattern was an operational aspect and it was dealt with by the requirement for three monthly inspections of the vehicles.
100 Mr Enkelman considered that tyre ratings were appropriately checked and addressed by setting the maximum speed at 40 km/h, restricting the load cycle to 40% of the running distance or time and by requiring that the tyres be periodically inspected.
101 Dr Maclean’s concern about turntable position was generated by the propensity of heavy loads to affect the centre of gravity of the vehicles and the front axle making it more difficult to steer the vehicle. He said the position of the turntable was not noted on the certificate. However, he agreed that he did not know where the turntable on the plaintiff’s truck was positioned.
102 It was apparent that much of Dr Maclean’s criticism was based upon assumption because the certificates did not detail all of the components inspected by Mr Findlay. Further, although he sought information concerning the manufacturer’s specifications for the truck, none was provided to him and he was therefore unaware of the position of the turntable.
103 Mr Enkelman said there was no evidence that there was a grossly excessive centre of gravity at the time of the accident.
The effect of the certificates
104 The certificates permitted the haulage of heavy loads that affected operational aspects of the trucks involved, including gravitational instability and pressure of tyres. The issue raised was whether the certificates effectively limited the speed at which a loaded truck was to be driven and how WBW Haulage and the mine operator understood they were to operate the trucks to comply with the limits imposed by the certificates.
105 The defendant’s letter of 24 January 2005 referred to an original mine agreement that dealt with haulage truck speeds or loads. It was unclear to what this term referred. Mr Findlay said he did not know and he acknowledged that the reference to average speed was ambiguous.
106 In dealing with the variation approved in January 2005, Mr Jamieson said he had not sighted an original mine agreement and therefore concluded that the reference to an average speed over the load cycle of 40 km/h referred to an agreement to soften the maximum loaded speed of 40 km/h to an average speed over the load cycle.
107 Mr Jamieson stated that the terms average and maximum had very different meanings when applied to a loaded vehicle. He said his concern would be alleviated if the operators understood that the sole change to the audit certificate was to permit speed to increase to 60 km/h over only a short stretch of the road.
108 The load cycle: Mr Findlay said that when the regime for issuing certificates was developed it was agreed that a fully loaded truck would not exceed a speed of 40 km/h for 40% of the time. He said he never issued a certificate in respect of any vehicle to be used on a mine site that did not contain the 40 km/h restriction when loaded because of this original commitment to the Mines Department and the mine operators’ group. He used the same formula on every truck because, once certified, the truck could be moved to a different mine site. His certificate stayed with the truck regardless of the mine site on which it was operating.
109 He was unable to produce any report or certificate prepared since the regime was developed in 1996 that indicated that the vehicles were always limited to 40 km/h when loaded. Notwithstanding, he said:
But the stipulation is that they are not to exceed 40 kilometres an hour fully loaded, full stop. xvi
110 Mr Findlay said the effect of his 2002 certificate on the truck driven by the plaintiff was that it:
… had a gross combination rating of 79,000 kg which meant that it could carry payloads of up to 60,000 kg, but only at 40 kph and for 40% of the load cycle xvii .
111 He said the term load cycle included the full round trip and included all parts of the operation and all speeds for the whole cycle starting at the point where the truck was parked and loaded to the point where it returned unloaded.
112 Mr Findlay was asked to explain what he intended when he issued the certificate in January 2005. He answered:
A. The letter was to confirm and the intention was in my original 2002 letter, we set a maximum speed of 40 kph, fully loaded for the vehicle and then they could return back, unladen, at the designated mine speed. Because when you look at the load cycle or the operational cycle, which is what I’m referring to there, we have a period of time where they’re standing still in the pit, being loaded by the dumper. That time will vary slightly. They’ve got a period of time which they’re slowly moving across the pit to access the ramp, exit ramp, of which they’re not going to be travelling anywhere near 40 kph. When they get onto the haul road, they can travel up to 40 kph fully loaded. We’re allowing them that short period of time, to overrun the 40 kph, to get up the other side, at which they then revert back to 40 kph. They then have a slight stationary period when they’re negotiating getting on the tipping pad and tipping the load, then they can travel back to the pit at the designated mine site speed unladen, and again, as they descend into the pit, they would not be doing 40 kph. But over that whole period of time, if you plotted the times and whatever, we’re saying the average speed would be about 40, 45 kph. xviii
113 Questioned concerning the evidence of Mr Jamieson that an average speed over a load cycle was quite different from a maximum speed as used in the 2002 certificate, Mr Findlay agreed that the wording in his 2005 certificate was ambiguous but said that it was not his intention to increase the speed of the vehicles when they were fully loaded because:
A … That’s the important part of the cycle. That’s the dangerous part of the cycle. The return trip was at the speed designated on the mine site applicable at that time. xix
How were the certificates understood?
114 Mr Simmons appeared to understand that the 2002 certificate restricted the speed of the truck when loaded to 40 km/h. He statedxx that it certified that there is a speed limit of 40 km/h on the truck when it is loaded.
115 The District Inspector of Coal Mines on this aspect reportedxxi findings that:
8. The mine provided a report, dated 10th November 2004, from R. K. Findlay PL regarding the operation of that vehicle at loads greater than those that would be allowed on a public road.
9. That report specified that the maximum loaded speed for the vehicle (loaded at 50,000 kilograms payload) was 40 kilometres per hour.
12. The mine provided a report, dated 24th January 2005, from R. K. Findlay PL confirming a loaded maximum speed of 40 kilometres per hour, but allowing 60 kilometres per hour over a specified 1.2 kilometre section of roadway provided the loaded cycle remains at 40 kilometres per hour.
116 The only other document in evidence that referred to an average speed was the Bloomfield Mining Operations Significant Incident Investigationxxii where it was reported:
· An independent consulting engineer (R K Findlay see attachments) has rated the truck as capable of carrying up to 50 tonnes nett at up to 40kph average speed over the distance of the load cycle.
117 Dr Maclean, although not fully informed, inferred from available material that the haulage trucks were regularly operated with loads and at speeds that exceeded the limits specified in the defendant’s certificates. He concluded that the truck was operating outside the restrictions imposed by the certificate.
ISSUE 2 - Findings
118 Scope: It was acknowledged on behalf of the plaintiff that the defendant was not retained to undertake a general audit of the safety of the mine site.
119 I find that the scope of the services that the defendant was retained to provide in respect of the truck driven by the plaintiff at the time of the accident did not require the defendant to audit the safety of traffic management procedures on the mine site.
120 WBW Haulage retained the defendant. There was no evidence from Mr Simmons, who contracted with the defendant on behalf of WBW Haulage, that he contracted for more from the defendant than an audit of the condition and specifications of the truck and the provision of a certificate in the terms set out in the 1996 contract with the Howick mine.
121 I accepted that the defendant was retained to certify the maximum payload that could be carried by the truck driven by the plaintiff, having regard to its make, model, the capacity of its turntable and hoist and its GVM rating.
122 This rating required a trade off between load and speed, so that the expertise that was provided by the defendant was applied to certifying, having regard to these factors, the carrying capacity of a truck within the limits specified in the certificate.
123 I accepted the plaintiff’s submission that the defendant’s certificates were issued as part of package directed at coal mine safety and that they operated in conjunction with the provisions of the Coal Mine Health & Safety Act 2002 and the guideline document MDG-15.
124 As far as road conditions were concerned, MDG-15 required the vehicle manufacturer to provide information to the owner of the vehicle information about the limits of operation of the equipment supplied and gave examples of the information required. Of those only the reference to maximum working grade as a percentage appeared to address road conditions. There was no other provision in MDG-15 that suggested that road conditions were to be taken into account in determining the operational capacity of haulage trucks.
125 I find therefore that the scope of the services that the defendant was retained to provide in respect of the truck driven by the plaintiff at the time of the accident was that provided for in the 1996 Howick contract.
126 Negligence: Dr Maclean accepted that the truck operated outside the limits specified in the certificates, notwithstanding the reference in the 2005 certificate to average speeds. The question was whether the defendant was negligent in failing to implement measures to ensure compliance with the limits set in the certificates that it issued and thus whether they were rating certificates or safety certificates.
127 The plaintiff claimed that the defendant was required to check actual operating conditions before issuing any certificate. The plaintiff relied on Mr Findlay’s statement that he would not have issued any certificate if told that trucks were travelling at 80 km/h when loaded. It was therefore suggested that the defendant should have done more than simply produce a certificate that was generally adopted for trucks on all mines in New South Wales.
128 I accepted that Mr Findlay’s inspection of the haul road was cursory before the issue of both the 2002 and the 2005 certificates. There was no evidence that indicated that, if operated within the limits of 40 km/h over 40% of the load cycle with a short section where the limit was 60 km/h, the topography, gradient or surface of the haul road represented a safety hazard.
129 All experts agreed that, notwithstanding the effect on steering control of the heavy load that the truck carried, at 40 km/h the plaintiff would have been able to steer the truck so as to avoid the accident. Mr Jamieson said the plaintiff would probably have done so if travelling at 60 km/h. Dr Maclean thought that the plaintiff would have been safer if driving at 60 km/h.
130 I find therefore that there was no negligence on the part of the defendant arising out of its cursory inspection of the haul road.
131 There were two areas of concern that arose out of the technical aspects of the use of the trucks for hauling heavy loads. They were the effect on steering control having regard to the gravitational force of the load and the propensity for component failure, in particular the need to avoid tyre failure.
132 Again the evidence established that these operational concerns were addressed through the imposition of speed and load limits and the restriction of the period during which the load could be carried to 40% of the load cycle.
133 There was no evidence to suggest that these restrictions were based on unacceptable standards. I found it unremarkable that the 40% load cycle restriction was adopted on the basis of recommendations of tyre manufacturers.
134 The criticisms of Dr Maclean were directed at the question of whether the defendant was responsible for prescribing, implementing or auditing a system designed to ensure that the standards set in the certificates were complied with.
135 Dr Maclean argued that this was a professional obligation owed by the defendant. The plaintiff submitted that the obligation was analogous to that owed by a specialist medical practitioner to supervise the patient care provided by a general practitioner.
136 Leaving aside the absence of evidence that this was in fact the practice in medical circles, I considered that these submissions overlooked the general principles set out in s 5B of the Civil Liability Act 2002. Those principles require a person to take precautions against a risk of harm where the risk was foreseeable, not insignificant and there are circumstances where a reasonable person would take those precautions.
137 In this case, there was a foreseeable risk of harm to the plaintiff if he drove the loaded truck at an excessive speed. I considered that the issue of the certificates was a reasonable precaution to guard against this risk.
138 The further risk that the plaintiff suggested the defendant ought to have foreseen was that the limits set in its certificates would not be observed by the haulage contractor and the mine operator. I considered that, although this could be regarded as a foreseeable risk, it was not a significant risk at the time the certificates were issued.
139 In 2002 the certificate was required to allow the truck to operate as a haulage vehicle on the mine site. It was a safety feature that was introduced into the operation of mine sites at the request of mine operators and with the support of the Department of Primary Industries for the protection of truck drivers. There was no evidence that the defendant was aware of any practice at the Bloomfield/Donaldson mine or at any other mine in New South Wales that involved the operation of haulage trucks without regard to the limits set in the certificates issued by the defendant.
140 The evidence concerning the prior accident record on the Bloomfield/Donaldson mine was limited to the number of accidents involving haulage trucks. No details of the accidents were provided to suggest that they were caused by excessive speed under load. It was not possible therefore to conclude that, if the defendant inquired, the accident history would have indicated that the limits set in its certificates were not being observed.
141 Further, the defendant was specifically asked to give approval to an increase in loaded speed from 40 km/h to 60 km/h over a very limited section of the haul road. Both Mr Simmons and representatives of the mine operator were present when Mr Findlay inspected the site to determine if approval would be given. At the time of his inspection the haulage trucks were travelling at 40 km/h when loaded. There was no evidence that at this time Mr Findlay was alerted to the practice of exceeding the speed limit that he imposed for the truck in 2002.
142 Having regard to these circumstances, I was not satisfied that a reasonable person in the defendant’s position would consider that there was a significant risk that the haulage contractor or the mine operator would disregard the limits set in the defendant’s certificate was significant. I was not satisfied that a reasonable person in the defendant’s position, given the scope of the services that it was asked to provide, would have taken the precautions suggested by Dr Maclean.
143 Causation: I was concerned that the use of the term average indicated that speeds in excess of 40 km/h and 60 km/h respectively were permissible provided that this was the average speed over the load cycle.
144 Mr Findlay’s claim that this was not his intention was supported by the material that indicated that this was not how the certificates were interpreted at least by the District Inspector of Coal Mines and Mr Simmons. The Bloomfield incident investigation report was capable of suggesting that the mine operator understood that an average of 40 km/h was permissible. No evidence was called from the mine operator that established that it the average speed of 40 km/h was maintained notwithstanding that required trucks to travel at 80 km/h loaded.
145 I did not consider that because the Mr Findlay said that the defendant would not have issued certificates if he knew that speeds of 80 km/h loaded were being travelled by the trucks, it followed that there was negligence on the part of the defendant that was causative of the plaintiff’s accident.
146 The defendant was asked in 2005 to approve an increase from 40 to 60 km/h. It was reasonable in my view that Mr Findlay understood that he was being asked to vary his certificate to permit trucks to travel over a short section of the haul road at 60 km/h as an exception in circumstances were Mr Simmons and the mine operator appreciated that the speed limit of loaded trucks was 40 km/h.
147 If find that there was no negligence on the part of the defendant that was causative of the plaintiff’s accident.
ISSUE 3 – Contributory negligence
148 The defendant argued that there was contributory negligence on the part of the plaintiff who, as an experienced and professional driver, drove at a speed that he knew to be excessive on a wet road, without a seatbelt and when lighting a cigarette.
149 Although this was a matter raised by the plaintiff, there was no evidence to suggest that the road was wet to the point where it made the road more hazardous or that it contributed in any way to the cause of the accident. In those circumstances, I did not consider that his driving at speed on a wet road resulted in contributory negligence.
150 The plaintiff was driving at the speed directed by those operating the mine. His continued employment depended upon his complying with this direction. In those circumstances, I did not consider that contributory negligence was established in relation to his speed of travel at the time of the accident.
151 The plaintiff’s seatbelt did not fit him. This was confirmed by Mr Simmons in the post accident statement that he provided. During virtually the whole of his 12 hour shift he was required to drive to and from and mine site. It was unrealistic of his employer to expect that he would wear an ill-fitting and uncomfortable seat belt over this period of time. In my view, the negligence relating to the failure to the wear the seatbelt was not that of the plaintiff.
152 I decided that there was contributory negligence in lighting a cigarette. The evidence that the non smoking policy was ignored except when at the mine itself did not excuse the plaintiff from the decision to undertake an activity that interfered with his capacity to maintain the position of the truck on the haul road when travelling loaded and at considerable speed.
153 I assessed the plaintiff’s contributory negligence at 10%.
ISSUE 4 - Damages
154 The plaintiff claimed the following injuries:
Fractures of ribs 4 – 9 on the left side
Lacerations of the face, head and neck
Fractures of the transverse process at T8 and T9
Soft tissue injury to the back, right hip and left knee
Shock
Reactive anxiety
155 After the accident the plaintiff was admitted to the John Hunter Hospital for four days. He said that during this period he was suffering from pain in all parts of his body. X-rays revealed the fractures already noted.
156 When he was discharged from the hospital his pain continued. His head was stitched and swollen. He was bedridden for three to four months, in intense pain and with very limited mobility.
157 The plaintiff was then able to mobilise with the use of crutches, a function that he found difficult because at that time he lived in a split-level home. He was unable to drive for six or seven months because he was unable to get into or out of a motor car.
158 He was treated with physiotherapy and pain killing medication.
159 He returned to work about 18 months after the accident. By that time he had retrained as a trainer and assessor in OTR or On Time Resources. He worked in this field for about six to eight months finding it difficult because it required him to stand for long periods and to get into and out of trucks. He continued during this period to use pain killing medication for upper and lower back pain.
160 He then secured employment driving a gas tanker. He said he found this difficult because the truck had manual gears that required him to use a clutch. He was also required to pull out and connect hose reels. He found this employment harder than driving coal trucks because it was necessary to get into and out of the truck several times per day to complete deliveries. The condition of his back meant that he was unable to bend and he therefore found it necessary to get onto his hands and knees to connect the hose reel.
161 When he took this job he stopped taking painkillers because, as a truck driver, he was required to undergo drug testing. He therefore worked with continuing pain in his upper and lower back, right hip and, occasionally, in his left knee.
162 After nine months, he secured another position driving a gas tanker that was semi-automatic so that the requirement to use the clutch on the vehicle was reduced. This relieved some of his difficulties.
163 He then transferred to employment with Scotts Transport Industries driving a Mack prime mover with a 19 metre petrol tanker. This was similar work with the same mobility problems. His work involved a three-weekly cycle during which he worked four days for two weeks and five days for one week. The drug testing regime continued to apply so that he did not take medication.
164 The plaintiff said that by the end of a 12 hour shift he was physically incapable of doing anything. His practice was to go home and lie on the floor in an effort to recover. He said the only way in which he could get pain relief was to lie down.
165 He said his main area of complaint was his back. He was unable to lift heavy weights or bend. He suffered interscapular pain when lifting his arms above his shoulders. He continued to have difficulty at times getting into and out of his truck. He said he undertook this task slowly. He no longer received medical treatment.
166 The plaintiff said he believed that his condition would improve if he was no longer driving a truck. For this reason for two years he has been training in foreign exchange trading with the intention of earning income in this field. His plan prior to the accident was to work to retirement age.
167 As far as domestic assistance was concerned, the plaintiff said that his son now washes his car and mows the lawn. He said he could probably mow the lawn himself but only for short periods.
168 The plaintiff no longer enjoyed his pre-accident recreational activities of drag racing and restoring old cars. He said he could not bend over engine bays and he had difficulty standing up after getting to the ground.
169 The plaintiff agreed that at times he has driven his wife’s Mini Cooper motor car. He said he enjoyed driving this car although he had difficulty getting into and out of it and he suffered pain if he drove for long distances.
170 The plaintiff’s general practitioner, Dr McTackett provided a chronology of consultations with the plaintiff, noting that with appropriate pain management the plaintiff was expected to return to full time work with some restrictions. Dr McTackett considered the plaintiff to be fit for part time work by August 2006.
171 Although psychological injuries were claimed, no evidence was called from the plaintiff that indicated that an injury of this nature was ongoing.
172 The plaintiff was examined by Dr Lewin in January 2007 and January 2008. He noted that after the accident the plaintiff displayed symptoms of avoidance and anxiety that were mostly settled by November 2006. Counselling arranged through the plaintiff’s general practitioner had assisted him. Dr Lewin said the plaintiff was not suffering from any psychiatric disorder and that he required no treatment. In January 2008 Dr Lewin noted that the plaintiff’s back pain was causing irritability but at a level that was insufficient to establish a psychiatric disorder. He said that the plaintiff was using humour and distraction to cope with his back pain. Dr Lewin did not consider that the plaintiff’s psychological symptoms were likely to affect his capacity for work or to recur unless he was involved in another motor vehicle accident.
173 Dr Spira examined the plaintiff in February 2007. He recorded that the plaintiff’s main complaint was of thoracic pain although he also complained of pain in his low back, right hip, left knee and he complained of regular headaches. Dr Spira thought that the plaintiff should have recovered from his significant injuries after six to eight weeks of discomfort and that his continued symptoms were therefore difficult to explain. He questioned whether the plaintiff was elaborating these complaints and asked to sight the plaintiff’s MRI scans in order to resolve this issue. There was no further report from Dr Spira in evidence.
174 Dr Cummine examined the plaintiff in March 2007 and in March 2008. He accepted that the plaintiff suffered the injuries that were claimed and he accepted the connection between the injuries to the plaintiff thoracic spine and his symptoms. In his opinion the plaintiff suffered an aggravation of a pre-accident degenerative condition in his low back. Dr Cummine was not able to determine the cause of the right hip pain of which the plaintiff complained. He noted that the plaintiff had applied a positive approach to rehabilitation that allowed him to return to work. He considered that a similar positive and focussed approach would allow the plaintiff to undertake handyman work around his home. For this reason he did not accept that the assistance proposed by Ms Walker was required.
175 In November 2007 Dr Bracken examined the plaintiff. He found nothing of significance in the plaintiff’s left knee. There were complaints of pain on certain movements of the right hip and atrophy of the right thigh and right calf. Dr Bracken’s findings were that the plaintiff suffered the injuries of which he complained. A contusion injury to his left knee was resolved to the point of minor intermittent discomfort and with function within normal limits. The injury to the right hip was sufficiently significant to result in atrophy. He continued with pain and restricted movement of his neck, thoracic spine and lumbar spine. Dr Bracken saw no indication of a need for surgical treatment and suggested that remedial massage for the plaintiff’s back and neck should be provided for on a maintenance basis. He said the plaintiff was fortunate to have found an area of driving with which he could cope but that he could not return to driving that involved loading and unloading or where the truck was not fully automatic.
176 Ms Walker assessed the plaintiff’s domestic care needs in February 2008. She recommended a number of mechanical aids and other items of equipment and furniture that she considered would assist the plaintiff’s level of function. She also provided an assessment of the plaintiff’s care needs. Ms Beaver undertook a similar exercise in September 2008. She described the plaintiff’s attitude to his difficulties as pragmaticxxiii and recorded that he demonstrated limitations in sitting tolerance, upper limb range of movement and chronic back pain. The plaintiff impressed her as motivated to try to recover. She reported functional restrictions in sitting, standing, walking, running, hopping skipping or jumping, squatting and the use of stairs and ladders. Ms Beaver attributed some of these restrictions to a lack of fitness of the part of the plaintiff that existed prior to the accident. She accepted that the plaintiff required some assistance, although not to the extent proposed by Ms Walker.
177 Ms Miller, physiotherapist, assessed the plaintiff’s therapy needs in February 2008, recommending programs of physiotherapy and hydrotherapy, associated equipment and access to a gymnasium.
178 Dr Beiers in May 2008 after examining the plaintiff concluded that his chronic pain was likely to persist and that, although some relief of low back pain might be obtained through weight loss, this would not reduce the level of thoracic pain. She noted that the plaintiff continued to work as a truck driver notwithstanding his chronic pain. She said he should avoid overhead activity and work involving the use of ladders. She also recommended programs to maintain the plaintiff’s physical fitness and core strength.
179 On subsequent examination in July 2009, Dr Bracken reported that the plaintiff complained of the same symptoms in his thoracic and lumbar spine that were aggravated by prolonged sitting, standing, walking, lifting and bending. The plaintiff by this time had no complaints relating to his left knee and although there was some improvement, he still had discomfort in his right hip. There was no atrophy in the right hip area but there remained one centimetre atrophy of the right calf. Dr Bracken attributed the right hip pain to injury and scarring to the adductor muscles. He noted that the plaintiff was continuing to work as a petrol tanker driver with moderate levels of pain in his neck thoracic and lumbar spine. He recorded that the plaintiff told him that he could not do home repairs or maintenance or lawn mowing because of back pain and that he went to work and then came home to rest. Dr Bracken’s opinion was that the plaintiff would continue to experience moderate pain in all areas of his spine that would permanently restrict his capacity to work. He said he was permanently unfit for heavier forms of work, for work requiring repeated bending or lifting more than 10 kg from floor level or more than 15 kg from bench level. He was unfit for work in confined spaces or work requiring agility. Dr Bracken continued to hold the opinion that further surgical treatment was not needed. He agreed with Dr Beiers that the plaintiff would benefit from a long term program of regular hydrotherapy. He agreed that the recommendations of the physiotherapist and occupational therapist concerning mechanical aids were reasonable and that they would assist in reducing the plaintiff’s pain levels.
Assessment
180 Non economic loss: Although the defendant asked very few questions of the plaintiff concerning his ongoing complaints of pain and disability, it contended that the opinions of Dr Spira and Dr Cummine questioning the source of the plaintiff’s symptoms indicated that the plaintiff was exaggerating those symptoms. It was not put to the plaintiff that he overstated the extent of his continuing pain or that he was exaggerating or malingering. I have already noted that Dr Spira sought access to the MRI report to assist him in deciding whether it revealed a basis for the plaintiff’s complaints but that no further report from Dr Spira was made available to the Court. I have proceeded therefore on the basis that Dr Spira’s opinion would not assist the defendant on this aspect of the claim.
181 Dr Cummine did in fact accept that there was a causal connection between the injuries that the plaintiff suffered to his thoracic spine and his symptoms. His remarks concerning the plaintiff’s positive approach to rehabilitation did not suggest that he considered the plaintiff to be exaggerating.
182 The most recent medical report was that of Dr Bracken dated July 2009. In that report he noted the improvements in the left knee and some improvement in the right hip. He provided an explanation for the continuing symptoms in the plaintiff’s right hip. Dr Bracken said nothing in the report to suggest that the plaintiff exaggerated his symptoms.
183 The plaintiff presented to the Court as a person who tended to understate rather than overstate his continuing symptoms. He returned to full time work after significant injuries and he continued to work although the nature of the work caused him discomfort and required him at the end of a 12 hour shift to do nothing more when he arrived home than to lie on the floor to recover from his pain.
184 I did not accept the submission of the defendant that there was evidence of exaggeration.
185 I accepted that the plaintiff suffered serious injury and that he continued to be affected in his day to day life with moderate levels of pain in the thoracic and lumbar areas of his spine. I accepted that his condition was permanent. He was 46 years old at the time of the accident and was now 50 years old. He remained with a considerable part of his life span in which to suffer from this discomfort.
186 On this basis I assessed his non economic loss at 30% of a worst case.
187 Loss of income earning capacity: The defendant agreed that the measure of the plaintiff’s past economic loss was $770 per week net. It argued that this loss should be assessed on the basis that he was totally unfit for work for 18 weeks after which, until he returned to work, medical certificates were issued that indicated that he was fit for part time work so that he should be compensated only for the shortfall in his income earning capacity.
188 The defendant put no questions to the plaintiff to suggest that he could have obtained part time work during this period but failed to do so. It was clear that he could not return to the work of driving heavy haulage trucks. There was also evidence that he undertook a period of retraining in order to secure his position as a trainer and assessor. Since his initial return to work he has worked full time, although with pain and discomfort.
189 I therefore accepted that the plaintiff should be compensated for the whole of the period from the date of the accident to the date of his return to work for his income loss in the sum of $68,530 and for loss of superannuation contributions in the sum of $7,538.30.
190 The plaintiff conceded that he suffered no income loss since he returned to work but argued that a lump sum buffer should be allowed because of the restrictions placed on him by reason of his injuries. I accepted that his most likely employment circumstance but for the accident was that he would continue to drive heavy haulage trucks. I accepted that the jarring from driving a truck on an unsealed road in a coal mine would result in consequences such that he could not return to that type of work or to work in positions where heavy physical effort was required. It was also apparent that the plaintiff struggled with his current employment as a gas tanker driver to the point that I doubted that he could continue with this work until retirement age of 67 years.
191 Although clearly resourceful and conscientious concerning full time employment, I considered that the plaintiff would be at a disadvantage in securing suitable alternative employment if he were no longer employed as a gas tanker driver and that an award of a lump sum. I considered that an appropriate sum would be $50,000.
192 Care: I recognised that in the period immediately following the accident the plaintiff was considerably dependent upon his family for personal and domestic care. However, in the light of evidence that indicated that the plaintiff was fit for part time work 18 weeks after the accident, I was not satisfied that the requirement for care met the threshold requirement of six hours per week for six months. Thus, no award could be made for past care.
193 A claim was made for future care on the basis that it would be commercially provided. I did not accept that Dr Cummine’s opinion that he expected the plaintiff would apply his positive approach to handyman work around the home was the correct way in which to approach the question of the need generated by the plaintiff’s ongoing disability. The occupational therapists agreed that there was such a need although they disagreed on the amount required.
194 I have taken into account the plaintiff’s evidence that his work leaves him with little capacity for household or gardening activity and having reviewed the reports of the occupational therapists, I considered reasonable the amount of $50,000 claimed by the plaintiff to meet the costs of care, equipment and a more supportive lounge.
195 Out of pocket expenses: Past out of pocket expenses were agreed in the sum of $35,974.
196 The defendant noted that the plaintiff had received little treatment for some years prior to the hearing and on this basis suggested that the plaintiff’s needs for the future were minimal. It was true that the medical experts did not consider that the plaintiff required surgery but they agreed with the occupational therapists that some form of physiotherapy or hydrotherapy would assist the plaintiff. I accepted that, if funds were provided, the plaintiff would obtain an appropriate form of therapy. Further, that he did not take painkilling medication because of the constraints of his employment did not, in my opinion, indicate that if he worked in some other field he would not take medication to relieve his symptoms.
197 I rejected the defendant’s contention that provision for therapy should be limited to five years. In my opinion, the plaintiff’s needs were long term. I did not accept that his needs were as extensive as claimed. I considered that an allowance of $20,000 would be sufficient to meet these needs.
198 Fox v Wood: This part of the claim was agreed in the sum of $8,934.
ORDERS
199 Verdict for the defendant.
200 The plaintiff is to pay the defendant’s costs of the proceedings. This order is suspended for a period of seven days to allow either party to list the matter for further argument on the issue of costs.
201 The exhibits will be retained for 28 days.
202 My reasons are published.
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i
Exhibit 7.21
ii
Exhibit A.A121
iii
Exhibit A.A133
iv
Exhibit B.C35 at 41
v
Exhibit A.A1 at 11
vi
Exhibit A.A117
vii
Exhibit 7.87
viii
Exhibit B.C35
ix
Exhibit 7.220
x
Exhibit 7.240
xi
Exhibit 7.239
xii
Transcript 273.25
xiii
Transcript 295.8
xiv
At [16]
xv
Exhibit 7.Tab 4
xvi
Transcript 303.7
xvii
Exhibit 7.13, [64]
xviii
Transcript 263.36
xix
Transcript 265.34
xx
At [15], [16]
xxi
Exhibit 7.Tab3
xxii
Exhibit A.C1 at C3
xxiii
Exhibit B.D125[1.2.4]
0