Keinath v BHP-Utah Coal Limited

[1995] QCA 319

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 209 of 1994

Brisbane

Before McPherson J.A.
Pincus J.A.
Shepherdson J.

[Keinath v. BHP-Utah Coal Limited]

BETWEEN

GUNTHER KEINATH

(Plaintiff) Appellant

AND

BHP-UTAH COAL LIMITED

(Defendant) Respondent

Appeal No. 210 of 1994

BETWEEN

BHP-UTAH COAL LIMITED

(Defendant) Appellant

GUNTHER KEINATH

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 25th day of July 1995

The plaintiff, who is respondent to the defendant's appeal

on liability (no. 210 of 1994), and the appellant in his own

appeal on quantum of damages (no. 209 of 1994), was injured in

the course of his employment with the defendant on the night of

19 July 1988. He was driving a Terex coal haul truck at the Riverside mine when it veered left off the road and "jackknifed",

causing the plaintiff to strike his head and sustain injuries to

his neck.

Coal haul trucks of the kind being driven by the plaintiff

are very large. They weigh some 100 tonnes; carry loads of up

to 145 tonnes; and travel, or are capable of travelling, at 30

m.p.h. The roads over which they are driven are rough. The

truck being driven by the plaintiff on the occasion in question

was loaded and he was driving it at night in the direction of a

dump station when the accident occurred. Access to the dump

station was gained by travelling along the haul road into what

was described as a roundabout beginning with a loop to the left

and ending up at the raised dump station, which was ahead on the

plaintiff's right in the direction in which he travelling.

About 30m before the beginning of the loop into the

roundabout, there was a side road off to the left, and it was at

about that point that the truck no. CH 1 being driven by the

plaintiff left the haul road and veered to the left. The

plaintiff's evidence, was that the steering on his vehicle

suddenly locked or failed, taking the truck off the haul road,

where it struck a ditch or drain, and, when the brakes were

applied, making it jackknife.

At the trial a different version of how the accident had

happened was put to the plaintiff. It was that he saw the

headlights on high beam of another coal haul truck, facing or

coming towards him, and was dazzled by those lights, or at least was preoccupied in trying to persuade (by radio) the other driver

(a Mr Austin) to lower the beam of his headlights. In doing so,

he mistook the side road at the left for the curve or beginning

of the roundabout and travelled into the side road at an

excessive speed.

The alternative version of what had happened had the merit

of plausibility and more than a semblance of probability deriving

from subsequent examination of CH 1 carried out by the defendants

under the supervision of a Mr Durbridge. It disclosed no fault

at all in the steering mechanism of the vehicle capable of

accounting for what the plaintiff said had happened. However,

there was some evidence that before the accident the steering

warning lights had been malfunctioning and that nothing had been

done to investigate the source of the problem. In addition, a

mechanical engineering expert Mr Kahler was critical of the

extent of the inspection carried out by Durbridge. It would not,

he said, have revealed whether the steering mechanism might not

have been affected by contaminant, which in Kahler's extensive

experience of investigating similar accidents involving trucks

and buses was sometimes found to have caused failures in the

steering of somewhat similar vehicles.

The effect of Kahler's evidence was to leave at least the

possibility that the accident had been caused, as the plaintiff

said it had, by a sudden defect producing locking in the steering

system, and his Honour accepted the plaintiff's evidence to that

effect. The learned judge was impressed by the plaintiff's "dogged" insistence in maintaining at all times that the steering

had locked, despite what his Honour described as "a perfectly

reasonable explanation which would shift any blame from him on

to others", that being an opinion which was held "fairly strongly

by the other workmen". His Honour was there referring to the

alternative explanation that the plaintiff had been dazzled and

had mistaken the side road at the left of the haul road for the

loop leading into the roundabout. His reasons for judgment went

on:

"Consequently, it does not seem to me to be reasonable to hold the view that he is lying in order to shift the blame from himself because there is someone else there who is ready-made to accept blame and this fact is known not only to Mr Keinath but to the other workmen then present.

Is he lying then to advance a false claim? If he is doing that, then he is extraordinarily perceptive and prompt because what he says to Mr Nugent is said within moments of the injury. Not only that, it is immediately disbelieved by the workmen there and, although he is handed a set of facts that would give him a good cause of action, namely that he is dazzled by a fellow workman and mistook an unmarked road, he doggedly holds on to what he said to Mr Nugent."

Mr Nugent was the safety officer for the mine, as well as being

an industrial union officer at the time. He too was driving a

coal loader on the night in question, and received the

plaintiff's call saying that the accident had occurred, at which

he and others went and inspected the scene. On the following day

a series of white guide posts was erected to mark the edge of the

road in the area where the accident had happened.

His Honour's reasoning was criticised on the ground that there was no evidence on which he could have based a finding or inference that the plaintiff had, almost immediately after the

accident, been given a perfectly reasonable explanation which

would have shifted the blame on to others; or that he had been

immediately blamed by his fellow workmen.

There were, however, some circumstances, which were said

to be capable of supporting the findings or inferences challenged

by the defendant. In the first place, the drivers of the coal

haulers, of which a number were operating on the night in

question, were linked by open radio, so that it was possible for

all of them to hear what was being said by others, and in

particular to overhear the conversation between the plaintiff and

Austin immediately before the accident, as well as the remarks

that were made soon after it. It was by this means that Nugent

himself spoke to Austin about what had happened. When he arrived

at the scene, he was accompanied by a Mr Cyril Johnston, with

whom he also discussed the question. As well as being the local

president of the miner's union, Johnston was driving a truck that

night and had been travelling not far behind the plaintiff. He

and Nugent arrived just as the plaintiff was extricating himself

from the truck. In cross-examination, he said that he discussed

the incident with the plaintiff, who told him that the steering

had locked and he had gone off the road. After speaking to at

least three others "and many more", Johnstone said they had come

to the conclusion that the plaintiff had mistaken the side road

for the haul road. In addition, he talked the matter over with a Mr McCowan, who was a personnel officer at the mine, and it was

after that that the guide posts were erected.

It was natural that the accident and its probable cause

should have been a matter of interest to the plaintiff's fellow

workers and the subject of extensive discussion among them at the

time. His Honour's finding that the plaintiff's version was

"immediately disbelieved" can for the most part be supported by

Johnston's evidence about the conclusion he and others reached

about the cause of the accident, and by the defendant's action

in erecting the guide posts on the following day. As a matter

of strict evidence, it was probably going too far to say that the

plaintiff was "handed a set of facts" which gave him a good cause

of action and acquitted him of blame; but ordinary human

behaviour strongly suggests it would have been well-nigh

incredible if the prevailing consensus of opinion had not been

passed on to the plaintiff soon after the incident. Curiously,

at the trial it was counsel for the plaintiff who had objected

to admission of evidence concerning the opinions formed and

discussed at the time, although in the event his Honour

considered they assisted the plaintiff on the question of

credibility.

What is perhaps more important is that, in the end, it does

not appear to matter which of the two versions were or are

adopted. The plaintiff's evidence that the steering had failed

suddenly and unexpectedly meant that it was difficult to

attribute any blame for it to the defendant. The trial judge concluded that it was not possible to say that there had been

negligence in maintaining the vehicle. On the other hand, his

Honour also found that there had been negligence on the part of

the defendant in failing to provide the vehicle being driven by

the plaintiff with an appropriate seat belt or restraint that

would have avoided the injury he sustained to his neck.

His Honour's finding to that effect was not challenged on

appeal. That being so, it is not easy to see that adopting what

may be called the consensus explanation of the accident could

make a difference to the result. If the reason why the

plaintiff's vehicle ran off the haul road to the left was because

in fact he mistook the side road for the beginning of the loop

in the roundabout, he would nevertheless have sustained the same

injury in the same way and for the same reason; that is, because

an effective seat belt had not been provided for use when driving

the vehicle. It was suggested that adopting that alternative

explanation for the accident might lead to a finding of

contributory negligence on the part of the plaintiff. Such a

finding was, it was acknowledged, the most that the defendant

could hope for on appeal. It is, however, by no means clear that

an apportionment of liability would follow, particularly if it

was the fact that the plaintiff had been dazzled by the lights

of Austin's truck, or that the mistake on his part about the turn

to the left could have been avoided by erecting guide posts

marking the direction of the haul road.

To arrive at a proper apportionment, it would be necessary

to substitute different findings as to credibility, which would

be difficult on appeal without seeing and hearing the plaintiff,

and perhaps other witnesses, give evidence. The only other

course would be to order a new trial. The notice of appeal by

the defendant (App. no. 210 of 1994) does not ask for a new

trial, and when that possibility was suggested in the course of

the hearing, it was not greeted by Mr Stenson for the defendant

with much enthusiasm. Making an order for a new trial is

discretionary, and there are reasons here for thinking that

little would be gained by it, even if it were possible to limit

it to the matter of liability or apportionment.

In the result, we do not consider that sufficient reason

has been shown for interfering with the trial judge's findings

with respect to negligence and liability. It follows that the

defendant's appeal must be dismissed.

As to quantum, the total award in favour of the plaintiff

was $266,748.71, of which $150,000 represented past and $25,000

future economic loss. Both assessments were challenged on appeal

as being inadequate, and a number and variety of grounds were

advanced in support of a higher award.

The plaintiff was born on 1 July 1936 and so was 58 years

old at the time of the trial in September 1994. He was

originally from Germany, but had worked, mainly as a truck

driver, in various parts of the world before coming to Australia

in 1979. From 1982 he worked as a dump truck driver or as a coal haul truck driver at the Riverside or Goonyella mines. After the

accident on 19 July 1988 in which he injured his neck, he ceased

work, and on the following day consulted Dr Cruickshank.

Initially, he had pain in his right shoulder region, which was

not alleviated by physiotherapy. Then, after being treated with

cortisone injections, which reduced the pain, he returned to work

on 14 October 1988. Some six weeks later he suffered further pain

from bumping or jarring while driving a truck at work. He was

then referred to a neurosurgeon Mr Rossato, who performed a

myelogram and recommended surgery. The C5/6 vertebrae were fused

on 21 February 1989, after which he returned to work. He then

worked from April until August 23, 1991, when he finally ceased

working because of pain.

As regards past economic loss, the first matter of

complaint was that the amount claimed by the plaintiff for the

period to trial of $170,069.68 was discounted to $150,000. His

Honour said he was not satisfied the amount should be allowed in

full. It did not, as far as he understood it, take account of

stoppages that occur at mines, nor of injuries that might be

suffered by the plaintiff. So far as stoppages were concerned,

the plaintiff, who was represented by Mr Jones Q.C. on appeal,

sought to adduce further evidence on the appeal. It went to the

schedule of earnings (ex. 5), which was admitted by consent at

the trial, and it was intended to explain the materials on which

the figures in the schedule were based so as to invite the inference that those figures took account of any stoppages during

the period covered.

The further evidence was objected to, and we declined to

admit it on appeal. This leaves for consideration the complaint

that his Honour had unduly discounted the pre-trial economic loss

to take account of the possibility of injury between the date of

the accident, when the plaintiff was 52 years old, and the date

of trial. It was said that any such injury should not have been

brought into account because it would itself have been

compensable. That, however would not necessarily have been the

case. The plaintiff was of an age when, as the evidence showed,

he was suffering from degenerative changes in the neck even

before the accident. In addition, there was other medical

evidence (the detail of which is discussed below), on which his

Honour was entitled to act, suggesting that the plaintiff had

given up work in 1991 at least partly because of lower back pain,

which, if caused by the work he was doing, was nevertheless not

the subject of a claim for damages. The case was therefore one

in which it could be said that a contingency had produced an

actual and identified incapacity some time before the trial. It

was therefore a matter which the trial judge was entitled to take

into account in discounting the pre-trial economic loss in the

way in which he did.

As regards future loss, the judge made a finding that the

plaintiff would, apart from the injury to his neck sustained in

July 1988, probably not have worked beyond age 60. In evidence the plaintiff said that that was when he had intended to retire.

At the time of the trial in September 1994, the plaintiff's

sixtieth birthday was only about 21 months away, so that the

award of $25,000 on account of future economic loss involved a

discount from a hypothetical maximum of some $90,000 which could

have been earned during that period at a rate of approximately

$1000 per week.

The difficulty with the plaintiff's argument on this point

is, again, the medical evidence about the condition of his lower

back. Dr C.J. Nurse, who conducted an examination on 4 February

1992 and took x-rays, recorded (ex. 15) that the plaintiff had

said his low back was also troubling him at the time he gave up

work in August 1991. The x-rays disclosed minor degenerative

changes in the lower lumbar spine, which Dr Nurse thought were

normal for his age and occupation, adding that "once he seeks

lighter work his back pain will settle". However, by the time

of a further examination on 16 August 1994, Dr Nurse recorded the

plaintiff as saying that the pain in the right low back radiating

into the right hip "is a constant ache and he can only manage to

walk for about 400 metres". He nevertheless confirmed his

opinion that this pain would settle. His final assessment was

that the plaintiff's disability at that time was in the order of

15% of the whole body, of which 5% would have been pre-existing,

and his low back pain "in the order of a few percent only".

Dr Doughty in his report dated 1 September 1994 (ex. 14) said

that when he examined the plaintiff in September 1994 he was complaining that his lower back continued to be painful, with

pain radiating down the back of his right leg. He considered

that the accident could have aggravated pre-existing lumbar spine

degeneration, but that it was impossible to say that the

plaintiff's continuing low back pain was attributable to it.

The combined effect of these reports may be summed up by

saying that the lower back pain, resulting from minor degeneracy

of the spine observed in 1992, had been a factor in the

plaintiff's giving up work in 1991. It was expected to settle

once he ceased working as a truck driver; but, judging by what

the plaintiff said to Dr Nurse shortly before the trial in

September last year, it became, if anything, considerably worse.

It is not possible to ascribe it to the accident in 1988; but

it can be considered as contributing "a few per cent" to the

remaining disability of the order of 10% of the whole body, after

making allowance for the 5% attributable to the pre-existing

degenerative condition of the plaintiff's neck before the

accident.

The trial judge's discounting of both the pre-trial and

future economic loss may be regarded as substantial; but in the

light of the medical evidence and the nature of the work and

terrain over which he was driving, it is not possible to contend

that it was one which was beyond the limits of sound judgment.

The final matter raised on the appeal was his Honour's

allowance for interest on the pre-trial award. The learned trial

judge disallowed interest in respect of one year because of the tardiness with which the proceedings had been brought to trial.

The action had been set down only after an application by the

defendant to dispense with the certificate of readiness which the

plaintiff had failed to sign. We declined to receive further

evidence from the plaintiff in order to explain the delay, which

was something that could have been done at the trial. It was

nevertheless argued that, because the award had overtopped the

amount for which the plaintiff had offered to settle in 1992, the

plaintiff should not have been penalised by being deprived of

interest. However, the rules governing offers to settle

incorporate their own specific sanction, which is that the party

refusing the offer may be ordered to pay his opponent's costs

taxed as between solicitor and client. Such an order was made

in this case. The argument now being advanced was not put to the

trial judge before the formal judgment was entered, and there is

therefore no basis for saying that his Honour's discretion

miscarried in failing to take the same matter into account on the

question of interest on the award for past loss.

In the result we have concluded that there is no ground for

interfering with the judgment in the court below. The appeal

no. 209 of 1994 and the appeal no 210 of 1994 should each be

dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 209 of 1994

Brisbane

[Keinath v. BHP-Utah Coal Limited]

BETWEEN

GUNTHER KEINATH

(Plaintiff) Appellant

AND

BHP-UTAH COAL LIMITED

(Defendant) Respondent

Appeal No. 210 of 1994

BETWEEN

BHP-UTAH COAL LIMITED

(Defendant) Appellant

GUNTHER KEINATH

(Plaintiff) Respondent

McPherson J.A.
Pincus J.A.

Shepherdson J.

Judgment delivered 25/07/95

Reasons for judgment by the Court

BOTH APPEALS DISMISSED WITH COSTS.

CATCHWORDS	PERSONAL INJURIES - LIABILITY AND QUANTUM OF DAMAGES - Credibility of witnesses - Alternative versions of fact - Whether liability should be apportioned - Whether trial judge erred in substantially discounting the plaintiff’s pre-trial and future economic loss.
Counsel:	S.G. Jones for the appellant/respondent Keinath
R. Stenson for the respondent/appellant BHP-Utah Coal Ltd.
Solicitors:	Macrossan & Amiet for the appellant/respondent Keinath
Barry Beaverson & Stenson for the respondent/appellant BHP-Utah Coal Ltd.

Hearing Date: 2 June 1995