Robertson v Gillman Bros Mining Contractors Pty Ltd

[2005] WADC 95

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   ROBERTSON -v- GILLMAN BROS MINING CONTRACTORS PTY LTD [2005] WADC 95

CORAM:   WISBEY DCJ

HEARD:   6-10, 13 & 14 DECEMBER 2004

DELIVERED          :   20 MAY 2005

FILE NO/S:   CIV 1964 of 2001

BETWEEN:   GRANT WILLIAM ROBERTSON

Plaintiff

AND

GILLMAN BROS MINING CONTRACTORS PTY LTD
Defendant

Catchwords:

Tort - Negligence - Duty of care - Employer and employee - Alleged failure to provide proper plant and safe working environment - Causation

Damages - Provisional assessment of for personal injury

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff:     Mr E J Myers

Defendant:     Mr M Zilko with him Mr C Rimmer

Solicitors:

Plaintiff:     Bradley & Bayly

Defendant:     Jarman McKenna

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

Jones v Dunkel (1959) 101 CLR 298

Medlin v State Government Insurance Commission (1995) 182 CLR 1

Case(s) also cited:

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; (1986) 60 ALJR 362; (1986) 55 ALR 1; (1986) A Tort Rep 80-012

Bennett v Minister for Community Welfare (1992) 176 CLR 408

Canny v John Pfeiffer Pty Ltd (1980) 33 ALR 203

Chance v Alcoa of Australia Ltd (1990) A Tort Rep 81-017

Chappel v Hart (1998) 195 CLR 232

Cockatoo Dockyard Pty Ltd v Browne [2001] NSWCA 58

Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291

Dahl v Grice [1981] VR 513

Elders v Devereux, unreported; FCt SCt of WA; Library No 980183C; 9 April 1998

EMI (Australia) Ltd v Bes [1970] 2 NSWR 238

Evans v Hartigan (1941) 41 SR (NSW) 179

Ferraloro v Preston Timber Pty Ltd (19820 42 ALR 627; (1982) 56 ALJR 872

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; (1956) 30 ALJR 543

Hughes v Minister for Health [1999] WASCA 131

Jenkins v Sydney Markets Ltd [2003] NSWSC 1162

Kondis v State Transport Authority (1984) 154 CLR 672

Lock v Lock [2001] WASCA 20

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

McGhee v National Coal Board (1972) 3 All ER 1008; [1973] 1 WLR 1

McLean v Tedman (1984) 155 CLR 306

Mihaljevic v Longwear (Aust) Pty Ltd (1985) NSWLR 1

Pennington v Norris (1956) 96 CLR 10

Purkess v Crittenden (1965) 114 CLR 164

Rae v Broken Hill Proprietary Co Ltd (1957) 97 CLR 419

Rosenberg v Percival (2001) 205 CLR 434

Russell v Ciesielski, unreported; FCt SCt of WA; Library No 980222C; 1 May 1998

Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121

Seltsam Ltd v Minahan, unreported; NSWCA; 53716053; 23 March 1996

Squires Transport Pty Ltd v Turnor [2004] WASCA 245

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Tame v State of New South Wales (2002) 211 CLR 317

Thomas v O'Shea (1989) A Tort Rep 80-251

Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303

Turner v State of South Australia (1982) 42 ALR 669; (1982) 56 ALJR 839

Vozza v Tooth & Co Ltd (1964) 112 CLR 316

Watts v Rake (1960) 108 CLR 158

Western Australia v Watson [1990] WAR 248

Wyong Shire Council v Shirt (1980) 146 CLR 40

1. WISBEY DCJ:  The plaintiff, who was at the relevant time a mining industry truck driver and plant operator, and who was born on 2 December 1969, alleges that between 1 February 1998 and 23 December 1999 at the Golden Pig Mine and occasionally at Fraser's Decline Mine near Southern Cross, whilst driving haul trucks and boggers in the course of his employment he was subjected to repeated frequent jolts, jerking and vibration, and particularly so on 22 October 1999.  As a result thereof he claims to have sustained injuries to the thoracic, lumbar and sacral spine.  He alleges that the injuries were caused by the defendant's negligence in that the trucks and boggers had defective seating, and the roads over which they had to be driven were not adequately maintained.  In the result his body generally was subject to violent jolting. 

The plaintiff's evidence

1. The plaintiff receives a disability benefit and is enrolled part‑time in the education and legal studies course at Murdoch University.  He was born and educated in New Zealand, leaving school in what would appear to be the equivalent of our final year of secondary education.  He was then employed as a process worker and subsequently as a farm labourer, operating the usual farm machinery.  He came to Western Australia in April 1994 and after a brief period of farm work and casual labouring obtained employment in September 1994 as a nipper with the defendant at the Transvaal Mine Southern Cross.  Before commencing employment with the defendant he underwent a medical examination including a back assessment, and an induction course, but stated that it did not touch on issues such as the effect of rough driving conditions on machinery operators. 

2. After about three months working as a nipper (which the plaintiff described as a general dogsbody), he graduated to truck driving on eight hour shifts.  The Transvaal Mine had a steep decline, and the roads were graded regularly.  Prior to commencing each shift it was necessary for the driver to do a full pre‑start and service of the truck.  In addition, as with all other employees, truck drivers were required to complete a PLOD recording the shift activities and noting safety issues, which document was handed to the shift supervisor at the completion of the shift. 

3. Prior to commencing truck driving duties the plaintiff underwent a hands on induction course, which again did not address the effect of rough driving conditions upon machinery operators.  After a few months the plaintiff also operated boggers.  As the mine was winding down, and only one truck was in operation, he drove both truck and bogger during each shift.  He was instructed how to operate the bogger, including the pre‑start check, but was not given any instruction on seat adjustment of either the bogger or truck. 

4. After leaving the Transvaal Mine the plaintiff returned to New Zealand for a short time.  In or about November 1995 he was contacted by Mark Gillman and offered work at the Golden Pig Mine Southern Cross.  The plaintiff took up the job which involved nipper duties and driving trucks and boggers.  Prior to commencing work at Golden Pig he underwent a half day induction course which he described as basically a walk underground.  The course addressed general safety issues, but did not touch on the risks of jolting injury. 

5. The plaintiff worked at Golden Pig until March 1996 when he transferred to the Wombat Decline at Mt Gibson where, prior to commencing duties, he underwent a further induction course and medical assessment.  Again there was no mention made of the adverse effects of rough driving conditions on machinery operators. 

6. In about June 1996 the plaintiff resigned and worked for another employer for several months.  He rejoined the defendant at Golden Pig, truck driving, until the beginning of 1997 when he graduated to trucks and boggers.  During 1997 he worked as a service and charge up operator for several months and on a jumbo driller until September.  During this period he stated that another employee, Harry Watts, graded the mine road three or four days a week.  The plaintiff then returned to driving trucks and boggers. 

7. The plaintiff stated that at the beginning of the shift a full pre‑start would be undertaken before the truck was driven to the portal and down the incline underground where the incline road branched off in various directions.  The journey from the truck depot to the portal was approximately 800 to 1,000 metres.  Once underground it was necessary to go to the blast face and having scaled or removed any loose rock, water down the area before bogging the mullock.  It was the plaintiff's duty to operate a bogger to fill his haul truck with mullock and then transport the ore to the stockpile.  The distance from the blast face to the position where the haul truck was filled from the bogger varied between 200 to 800 metres.  The plaintiff did eight to nine trips per shift, transporting ore.  The road from the portal underground (the decline road) was composed of rock and dirt but often because of washaways, machinery would be travelling over bare and exposed ridges of rock.  He stated that the bogger operator was responsible for forming the road. 

8. At the time of the birth of his daughter in September 1997 the plaintiff had several weeks off work and when he had returned the grader operator Harry Watt had become a jumbo operator.  The plaintiff returned as a nipper, with limited truck driving, but by January/February 1998 had returned to full‑time driving duties.  By then the mine access roads were only graded monthly.  Initially mullock was placed on the roads by the bogger operators, and thereafter road base was used on the worst sections of road. 

9. From mid‑1998 until the cessation of his employment, the plaintiff operated trucks and boggers.  He stated that during this period the above surface road was rough and potholed, as were the underground access roads which were not being maintained to the previous levels.  As a result he stated that as a machinery operator he experienced a shocking ride and would be thrown around the cab all through the shift such that it felt like he was being ripped in half.  "The ride was terrible.  Your getting thrown all around the place". 

10. The roads were in a poor condition throughout 1998 and 1999 because of inadequate supply of road base and a lack of drainage causing the road surfaces to be gouged out by water.  In the result the vehicles were often traversing bare rock.  The pumping system which was required to keep the water off the roads was continually failing, and was not rectified until mid‑1999.  Limited grading was being carried out. 

11. The plaintiff claimed that for most of 1998 and for periods during 1999 there was no road base on site, and he claimed he raised the issue with all the supervisors, at safety meetings, and noted it on his plods.  He stated that the seats in the trucks were usually broken or seized such that the suspension was inoperative, and claimed that it took weeks or months for seats to be repaired or replaced.  He complained about the condition of the seats to his supervisors Lee Giles and Stan Gillman; the site supervisor Justin Leda; the maintenance supervisor John Gillman; and the fitters; but they took no notice of him.  As a consequence he wrote a really damning plod in October 1998 which he handed to Stan Gillman. 

12. The plaintiff pointed out that the defendant claimed an inability to locate any plods prior to November 1998. 

13. During 1998 and 1999 the plaintiff operated trucks 6 and 9 and boggers 13, 15 and 20. 

14. A file containing various plods was tendered in evidence (Exhibit 1). 

15. The plaintiff identified the capacity of various employees of the defendant as follows: 

    Brian Bosenberg – shift boss; Castle, T  -  operator and diamond driller; Conway, W  - underground shift supervisor; Giles, L  - underground shift supervisor; Gillman, G – director; Gillman, S  - director; Gorphen, M  - operator; Horner, W  -  operator; Leda, J  - site supervisor; and McDonald, G  - operator. 

16. The defendant held regular safety and toolbox meetings, and safety meeting minutes were kept, although the plaintiff claimed they were not necessarily accurate.  A file containing safety meeting minutes and audits pertaining to roads was received as Exhibit 3.  The plaintiff referred in particular to minutes of a safety meeting held at Golden Pig on 7 April 1999 where it was recorded that he made a request for more road base.  Although he could not be definite the plaintiff stated that the probability was that at that date there had not been any road base available for some months. 

17. Reference was also made by the plaintiff to the minutes of the safety meeting on 8 September 1999 when it was recorded that more road base was coming.  He claimed that there was no road base then available.  The file documents entitled "documents pertaining to roads" was received (Exhibit 2). 

18. The plaintiff stated that his complaints about the lack of road base were met with indifference, and did not result in any improvement of road conditions. 

19. The plaintiff alleged that he endorsed many of his 1998 plods with complaints about the state of roads, but reduced his complaints in 1999 because Stan Gillman had threatened him with the sack.  It does seem from his evidence, however, that he was of the view that the provision of road base improved in 1999. 

20. The plaintiff's recollection concerning seating was that the seats in trucks 6 and 9 were only replaced once in his employment; that in bogger 13 once or twice; and he had no recollection of the seat being replaced in boggers 15 or 20.  He stated that the seat in truck 6 was "pretty stuffed usually" with the result that he got bounced around.  The adjustment tilting mechanism was broken.  He stated that the seats in truck 6 and 9 were not properly maintained during his employment and were the cause of continual complaints.  The seats on boggers 13, 15 and 20 between February 1998 and October 1999 were seized or broken, with the result that there was a complete absence of suspension and the plaintiff as driver or operator got shot around "like a bullet out of a gun". 

21. On 22 October 1999 the plaintiff was operating bogger 15 on afternoon shift.  The condition of the roads was pretty bad because of surface water and a lack of road base.  The ride was shocking, the plaintiff claiming to having been thrown about the cab, with the seatbelt cutting him in half.  It was a Friday afternoon.  The plaintiff stated: 

    "As I commenced doing my job my back became sore.  As the shift got on to near the end of the shift I was in quite a lot of pain but as you’re underground you're very warm and you also wear a belt, a big belt, and that keeps your lower back warm.  At the end of the shift as its 11.30 at night I took my belt off and I walked home because the house was near the mine as I cooled down it became extremely painful … my lower back." 

22. The plaintiff stated that on arriving home he told his wife that his back was sore, and had a shower.  He went to work the following morning, but claimed that he tried to stay on the truck so that he could brace himself.  Notwithstanding, his back pain worsened as the day progressed.  The plaintiff was unable to recall a specific incident giving rise to his back pain, stating "I mean when you're getting thrown around the bogger and the truck all the time its hard to describe one from the other, its just the job.  You're getting thrown around because of the roads". 

23. When he got home from work on 23 October the plaintiff stated that he lay down on a couch under the patio and when he went to get up his back gave way and he collapsed to the ground.  He spent the rest of that day and the next day, which was Sunday, flat on his back, ingested some analgesics purchased by his wife, and applied inflammatory cream.  He did not work on the Monday because he had his supervisor's exam. 

24. When he attended work on Tuesday he reported to the site manager, Justin Leda, advising that he had hurt his back and was taking pain killers.  He requested that he be restricted to truck driving, and although that was arranged, his back was extremely sore.  Mr Slater, a chiropractor he consulted in Merredin on Friday, arranged x‑rays and performed a massage and manipulation.  The plaintiff's recollection was that he attended Mr Slater on about four occasions up to 23 December when the mine shut for the Christmas break.  At that stage the plaintiff believed that he had pulled a muscle in his back as he could not recall any specific incident.  Notwithstanding that he worked consistently between 22 October and 23 December, the plaintiff stated that he experienced continuous back pain. 

25. During the Christmas break the plaintiff went to stay with his in‑laws in Baldivis, and on their recommendation attended a naturopath who massaged his back and applied magnets.  As with the chiropractic treatment, this did not improve his back condition, and he continued to experience constant pain.  On the evening of 1 January 2000 the back pain became so intense that he was unable to sleep or to straighten up in the morning, and he had to be assisted to walk.  He attended upon Dr Loeffler at the Grange Medical Centre and by the time of the appointment he had a loss of sensation in the right leg.  Dr Loeffler gave him an epidural injection so that he could straighten up, but it did not have any effect on the leg condition. 

26. In January the plaintiff returned to Southern Cross and saw his general practitioner, Dr Leanne Lip, who referred him to the neurosurgeons, Mr Wong and Mr Stokes.  She also prescribed analgesics.  Both neurosurgeons recommended conservative treatment, principally the ingestion of Panadeine Forte and Brufen.  Mr Stokes referred the plaintiff to a spinal surgeon, Mr Woodland, who having assessed him, performed a spinal fusion at the L5/S1 level.  The plaintiff was hospitalised for eight or nine days and following discharge had physiotherapy for approximately a month before ceasing when the insurer stopped payment. 

27. The plaintiff stated that the spinal fusion remedied the problem with the lower limb, but did not reduce the back pain which has since remained at a constant level, requiring the ingestion of Tramal and Panadeine Forte.  The plaintiff claimed to be taking six Panadeine Forte a day, in addition to Tramel.  He stated that any physical activity exacerbated back pain.  The plaintiff also takes one Zoloft tablet a day for depression. 

28. The plaintiff and his wife separated at the beginning of 2003, and remain so notwithstanding an attempted reconciliation.  The plaintiff attributed the matrimonial disharmony to his disabled state.  He was assessed by psychiatrists, Drs Proud, Terace and Piirto.  The plaintiff stated that he was unable to stand around or sit for more than about half an hour.  As a result of his disability he stated that he received gratuitous assistance from his in‑laws, and from his mother who visited from New Zealand to look after the children as his wife was working.  The plaintiff was unable to quantify the level of assistance. 

29. Presently it appears that the plaintiff regularly cares for his children whilst his wife is at work, but receives some help from his mother‑in‑law.  The plaintiff stated that because of his back condition he could not tolerate jarring or jolting, and considered himself unfit for work in the mining industry.  Essentially his evidence was to the effect that he was unable to engage in any activity with a reasonable physical component.  He confirmed that he had obtained his mine supervisor's certificate equipping him to obtain a job supervising crews underground, inspecting worksites, assessing safety issues and being responsible for training, necessitating driving down into the mine.  He claimed that he was unsuited for such work and in any event was unable to obtain his senior first aid ticket, a prerequisite for such employment, because of his physical condition.  Had he not sustained a back injury it was the plaintiff's plan to cease work with the defendant in December 1999 and obtain work as a mine supervisor elsewhere. 

30. The plaintiff is undertaking a part‑time course at Murdoch University for a Bachelor of education and legal studies, but is in effect only pursuing the legal studies side of the course.  He is currently doing two units a semester and at that rate will not obtain a degree for about eight years.  He stated that he was unable to undertake a greater academic commitment because of his back condition. 

31. The plaintiff's income tax returns for the years 30 June 1998 to 2004 were received (Exhibit 4). 

32. The plaintiff stated that he made frequent complaints about the state of the mine roads and vehicle seating at toolbox meetings, but without consequence. 

33. In cross‑examination the plaintiff confirmed he did not recall injuring his back in any specific incident at work.  He said that if he had been told that the jolting of the machinery might cause an injury to his back he would not have taken the job.  When questioned about the circumstances of his injury he stated "I didn't relate it to anything because I didn't know how I had done it".  He claimed to have been bounced around violently on just about every shift between January 1998 and December 1999 but continued because "that was the job".  He confirmed that he had made complaints about vehicle seats and road conditions to numerous of the defendant's employees.  He stated that he endorsed seat complaints in a plod on one or two occasions in 1999, and complaints concerning lack of road base on two or three plods.  Additionally he made numerous verbal complaints. 

1. When it was suggested to the plaintiff that the safety meeting minutes did not record continual complaints by him he stated that the minutes were biased in favour of the defendant.  He denied that unserviceable seats could be replaced within 24 hours, and although he agreed that it was possible to tag out machinery if it was unsafe, stated that it did not necessarily mean that the machine would be taken out of service.  A schedule of the minutes of the safety meetings and the minutes themselves were received in evidence (Exhibit 5.1 & 2). 

2. The plaintiff agreed that at an induction in 1994 he was instructed to drive mine vehicles at a speed appropriate to the road conditions, and that it was a matter of commonsense in any event.  Although he agreed that one should drive to the conditions, he claimed that it was necessary to go full tilt so that the hydraulics would operate.  A diesel operator assessment safety questionnaire completed by the plaintiff on 22 November 1994 was received in evidence (Exhibit 6).  An induction questionnaire completed by the plaintiff on 11 March 1996 was received in evidence (Exhibit 7). 

3. The plaintiff agreed that the bogger operator was required to smooth the road but stated that it was not possible to do so if there was too much surface water.  He asserted that Golden Pig was a wet mine, especially through the A level.  He agreed there was an obligation to tag out unsafe equipment but responded that if an employee started tagging out equipment his conduct would not be viewed favourably. 

4. The plaintiff stated that he had not been subject to jolting before 1998 as the roads were maintained and seats repaired.  He stated that the bogger operator's job was to maintain the road at the heading or ore drive and not the haulage road, and it appeared from his evidence that the preparation of the road surface in the ore drive would of itself involve the driver of the machinery in significant jolting. 

5. The plaintiff stated that shifts were of eight hours duration, and claimed that he would be in the seat driving for approximately seven of the eight hours. 

6. He confirmed that if a vehicle was unserviceable the operator could tag it out and use another vehicle if one was available.  He specifically denied that he had not complained to Lee Giles, Stan Gillman and Justin Leda about the condition of seats in the vehicles, and stated that he also complained to maintenance fitters. 

7. When discussing the damning plod that he claimed to have handed to Stan Gillman in October 1998 the plaintiff said he had endorsed on it "failure to rectify unsafe seats and any injury that could happen because of this could result in legal action".  He agreed that the only written complaint he made about seats during 1999 was on 4 June, and it appears that at that time he changed vehicles.  He stated that he made a complaint to the fitters about too much air pressure in vehicle tyres. 

8. The plaintiff's recollection was that Stan and Greg Gillman and Justin Leda told him he had an attitude problem. 

9. He agreed that on 22 October 1999 when he first experienced back pain he had been operating bogger 15 and a truck.  He had been using a remote control for part of the shift and this involved him continually getting in and out of the bogger.  The plod for 22 October 1999 relating to the plaintiff's work was tendered (Exhibit 8) and the plaintiff was prepared to accept that it demonstrated that he would have spent considerably less time seated in the bogger than normally. 

10. Having been referred to the plods to refresh his memory, the plaintiff agreed that he had operated boggers frequently between 27 October 1999 and 23 December 1999.  When the plaintiff visited the naturopath in Warnbro he received a light massage to his back.  The pain he experienced on 1 January 2000 was described as an extreme version of that experienced on 22 October 1999 although the plaintiff had never before experienced twisting to the right or loss of sensation in the right leg. 

11. He stated that he had not applied for any type of work since ceasing with the defendant.  When asked whether he had endeavoured to get the necessary first aid qualification to enable him to work as a mine supervisor he responded "my mining career is finished".  When asked what he proposed to do when he had completed the degree of Bachelor of Education and legal studies he had no idea and stated that he presently could not engage in clerical work because he was unable to sit for any reasonable length of time.  It appeared from his evidence that he had not really turned his mind to what if anything the degree would equip him to do. 

12. In re‑examination the plaintiff stated that if he had tagged out a machine because of the condition of the seat he would have lost his job, but stated that he had tagged out machines for other reasons. 

Joanne Louise Robertson

1. Mrs Robertson, the plaintiff's wife, lectures in accounting at Murdoch University.  She met the plaintiff in February 1996 when she commenced work for the defendant as its accountant.  She confirmed that there were three children issue of the marriage aged 7, 5 and 4. 

2. It was Mrs Robertson's understanding that all documents generated by the defendant were kept for seven years.  She recalled the plaintiff telling her in about October 1998 that Mr Stan Gillman had gone off the deep end about a plod that he had written in which reference was made to the condition of vehicle seats.  She stated that prior to 22 October 1999 the plaintiff had a generous personality and performed an equal share of the family domestic tasks. 

3. Mrs Robertson stated that on 22 October 1999 the plaintiff complained of a really sore back when he came home from work.  His position was worse the following day, causing him to lie down on a couch under the verandah where he "sort of collapsed".  That incident was on a Saturday and the plaintiff lay around on the weekend.  Although the plaintiff returned to work between that time and Christmas he was experiencing continuous pain and attended a chiropractor. 

4. During the Christmas period the family stayed with her parents in Baldivis and during that period the plaintiff spent a lot of time lying on the floor in the lounge room because of his back pain.  He experienced really bad back pain on 1/2 January 2000 such that he had difficulty walking and had to be taken to an appointment with Dr Loeffler.  She stated that his personality had since changed and he had become short‑tempered and aggressive, very hard to live with, and complained constantly about back pain. 

5. Mrs Robertson stated that her father and brother spent countless hours helping the plaintiff with the heavier domestic duties, and her mother helped look after the children on an average of one day a week due to her work commitments and the plaintiff's incapacity to care for them.  She claimed that she had to spend an extra three or four hours a day performing duties which had previously been undertaken by the plaintiff.  She confirmed that the plaintiff looked after the children when she was at work and unable to do so, although she worked her hours around the hours that the eldest two children were at school. 

Ian McKenzie Gibson

1. Dr Gibson, a consultant ergonomist, has a PHD in human physiology and has undertaken post‑graduate research in that discipline.  His report dated 9 September 2003 (Exhibit 10) demonstrates that he was provided with a history that the plaintiff sustained injury to his lower back as a result of exposure to high levels of vibration and mechanical shocks (jolts and jars) whilst driving underground haul trucks and loaders.  Dr Gibson based his report inter alia on an extended interview with the plaintiff.  The report is described as a preliminary report, noting that to reach final conclusions a reconstruction of the situation as it existed at the time of the alleged incident would be necessary. 

2. In the report Dr Gibson recorded that the plaintiff developed back pain at the end of a routine shift on 22 October 1999.  He reported that whole body vibration (WBV) was sustained where vibration was transmitted to the body as a whole by its supporting surface, and was commonly experienced in the mining industry by machinery operators.  It was believed to cause a range of problems especially affecting the musculoskeletal system of the lower back because of an accumulation of strains placed on the back over time. 

3. The three main sources of vibration were the condition of the road surface, vehicle activity, and engine vibration.  As rough roads were a major source of harmful vibration it was important to maintain the surface in the best possible condition, and to address the state of the machinery including its suspension, seating and the like.  The report noted that a good quality suspension seat could significantly reduce the intensity of the vibration reaching the driver, and that seat suspension systems deteriorated over time. 

4. Dr Gibson reported that his own experience with a range of vehicles in different mines was that high levels of vibration and shock were common even under reasonable road conditions.  The report recommended driver education and training in respect of vibration exposure. 

5. In the course of his evidence Dr Gibson stated that the seating configuration in a bogger meant that the operator was required to twist frequently to the left or right, putting an extra stress on the spine.  He stated that by 1997 the deleterious consequences of WBV was well known. 

6. It is difficult to quarrel with Dr Gibson's conclusion that it is important to maintain vehicles and road surfaces, and to make sure drivers are properly instructed as to both, although with respect one does not need any expertise to reach those conclusions which would be obvious to the average vehicle operator.  Indeed this was confirmed by Dr Gibson when he recommended that drivers be told to "use their brains as well as their steering hands, you know, when they're driving".  He stated that the seats that were fitted to the boggers and haul trucks were the KAB 300 series which were not as good as the KAB 515 series (according to the manufacturer).  This proposition was not further developed. 

7. In cross‑examination Dr Gibson confirmed that he had not carried out any calculations of the vibration levels of the haul trucks and boggers used by the plaintiff working in the conditions in which the plaintiff operated. 

Bryant Allan Rigbye Stokes

1. The general practitioner Dr Lip referred the plaintiff to the neurosurgeon Mr Stokes whose reports of 27 January, 27 January, 31 January, 2 March, 6 April, 26 April, 26 April, 5 July and 28 September 2000 and 19 December 2002 were received in evidence (Exhibits 11.1 - 11.10). 

2. In his first report of 27 January 2000 he recounted the history given to him that: 

   "His back pain slowly commenced in October 1999 and over the last few weeks has become more severe.  He had an episode of acute pain when he returned to work on 2 January and has not returned to work since." 

3. Mr Stokes stated that investigations demonstrated a spondylolisthesis of L5 on S1 with a disc protrusion, and a further protrusion at L3/4. 

4. In his second report of 27 January 2000 Mr Stokes stated that constant jolting driving dump trucks and boggers, could produce a repetitive stress injury to the lumbar spine.  He stated that the plaintiff did not give an account of any other incident that could have caused his symptoms, and therefore repetitive strain to the back could be responsible.  He reported that the spondylolisthesis at L5 on S1 was likely to be congenital, but could have been made symptomatic by repetitive jolting. 

5. On 2 March 2000 Mr Stokes reported that the plaintiff was unfit for his work as a machinery operator. 

6. On 6 April 2000 he expressed the view that most of the plaintiff's problems arose from the spondylolisthesis at L5/S1. 

7. On 19 December 2002 Mr Stokes reported that it was likely the plaintiff had repetitive stress to his back and an event on 22 October 1999 given rise to his current situation. 

8. Mr Stokes confirmed the contents of his reports in evidence.  He stated that the spondylolisthesis was at grade 1 level (mild to moderate), and that the condition occurred in 10 to 12 per cent of the community although not all of those with the condition were symptomatic.  Those who had a pars intra‑articularis fracture or a break in the continuity of the pars inter‑articularis who were engaged in some activity that stressed the back were often symptomatic.  He accepted that the plaintiff had a pars defect. 

9. Mr Stokes when given the history of the incapacitating incident on the night of 1 January 2000 and asked to comment on it stated: 

   "Well it does seem as though something did occur.  Now one of the common things that occur is that where there is any form of disc degenerative change or degenerative change in the back that there can be what's called facet joint disturbance and that can occur very simply.  I mean many of us experience these things from time to time.  Just simply twisting and picking something up off the floor can produce a facet joint disturbance.  And that can produce acute pain?---Absolutely." 

10. Mr Stokes stated that it was his view that there was a lot of low frequency but high amplitude jolting in operating mining machinery and that the seating position on a bogger was also a factor. 

11. Mr Stokes confirmed that he assessed the plaintiff's disability as of the order of 25 per cent, but that assessment was pre‑spinal fusion, and he had not seen the plaintiff since 2001.  It was clear that Mr Stokes attributed the plaintiff's continuing back pain to the spondylolisthesis at L5/S1.  It appeared from Mr Stokes' evidence that the relationship of spinal injury and/or symptoms, to vibration, had not been comprehensively evaluated. 

Peter Ronald Woodland

1. Mr Woodland, an orthopaedic surgeon specialising in spinal surgery, saw the plaintiff on referral from Mr Stokes, and his reports of 30 July, 17 September and 4 September 2001, 6 February, 22 April, 26 June, 27 September and 15 November 2002, 13 January, 20 January and 19 May 2003 and 19 November 2004 were received in evidence (Exhibit 12.1 – 12.12). 

2. On 30 July 2001 Mr Woodland reported that he saw the plaintiff that day and obtained a history from him that there was no particular incident or injury but that he developed increasingly severe lumbosacral back pain during the course of a shift on 22 October 1999.  Thereafter he had continuing pain, and on 2 January 2000 developed increasingly severe right lower limb pain radiating down to the lateral aspect of the right leg as far as ankle, as a result of which he had been unable to return to work. 

3. Mr Woodland reported that radiological investigation demonstrated pre‑existing bilateral pars defects at the L5 level, with grade 1 L5/S1 spondylolisthesis.  There was significant sequestrated disc fragment at the L3/4 level.  Mr Woodland felt that the plaintiff's pain was coming from the L5/S1 level, the right lower limb symptoms being consistent with L5 radiculopathy.  He recommended an L5/S1 laminectomy/fusion. 

4. Mr Woodland carried out an L5 lumbar laminectomy decompression of both L5 nerve roots and an L5/S1 posterior lateral fusion in November 2001.  He reported on 4 December 2001 that the operative intervention had resulted in resolution of the right lower limb radicular symptoms such that the plaintiff was walking and moving quite freely, although still experiencing lumbar back pain.  Mr Woodland noted that it was unlikely the plaintiff would ever be able to get back to significant heavy physical work such as a plant operator, although he contemplated a return to regular sedentary duties. 

5. On 22 April 2002 Mr Woodland reported that the plaintiff was still experiencing activity related lumbar back pain although whereas prior to surgery the back had felt unstable, post‑surgery the plaintiff was experiencing constant aching and was taking up to 8 Panadeine Forte per day. 

6. On 26 June 2002 Mr Woodland reported that there had been a deterioration in the plaintiff's pain state, and recommended a conservative approach to treatment. 

7. On 27 September 2002 Mr Woodland reported that the plaintiff was struggling with activity related lumbosacral back pain, but had reduced his intake of Panadeine Forte to about six per day.  In addition he was taking Tramal twice a day. 

8. On 15 November 2002 Mr Woodland reported that the plaintiff had undergone facet joint injections without benefit.  He stated that the lumbosacral pain was localised to the L4/5 level.  He reported:  "I feel that Grant's residual back pain relates to either the L4/5 motion segment level, possibly also the L3/4 level where there had been disc extrusion". 

9. In a report dated 13 January 2003 Mr Woodland stated: 

   "The other point is that there is no doubt in my mind that your client did have the pre‑existing condition of bilateral lumbar 5 pars interarticularis defects with a mild degree of spondylolisthesis (slippage) at the L5/S1 level.  5 per cent – 8 per cent of the adult population in this country would have the condition of pars interarticularis defects with a subgroup having developed the slippage/spondylolisthesis.  The condition, however, is not necessarily symptomatic.  One has to say, however, that this condition does predispose to an individual's development of back pain and it is my strong view that the condition can be rendered symptomatic by repetitive incidents or a single incident.  In your client's case it is my view that taking into account he denied any significant pre‑existing back symptoms, the incident on 22 October 1999 when your client was operating the bogger in the mine was the principal cause of his injuries.  I certainly agree that his work history in the preceding years involving operating machinery over rough terrain and I would not have been surprised if a worker with the pre‑existing condition of pars defects and spondylolisthesis would have experienced back pain, but again your client reports that he did not experience significant pain prior to the incident 22 October 1999.  The initial lumbar spine MRI scan 28 January 2000 did show also a significant disc protrusion at the L3/4 level extending to the righthand side and I personally feel that your client's initial severe pain dating to 22 October 1999 was probably due to a combination of disc injury at the L3/4 level and also due to the L5/S1 spondylolisthesis being rendered symptomatic.  As you would be aware, follow up MRI scan 13 November 2000, 10 months later, showed almost complete resolution of the previous large L3/4 disc protrusion.  By the time I first saw your client July 2001 there was no doubt in my mind that his lumbar back pain and reported right lower limb sciatic symptoms related to the L5/S1 spondylolisthesis with right side L5 nerve root impingement …  The fact that there was a large L3/4 disc protrusion which subsequently resolved over the ensuring months, does strongly suggest that there was a specific incident on or about 22 October 1999, that is there was some acute event significant enough to cause disc injury." 

10. Mr Woodland went on to report that rough driving conditions in the months or years preceding October 1999 may have caused increased wear and tear/degenerative change at both the L3/4 disc level and the L5/S1 spondylolisthesis level which could have predisposed the plaintiff to acute injury occurring on or about 22 October 1999.  He noted again that the plaintiff did not experience any back pain until October 1999.  He reported that although it was extremely difficult to quantify, his feeling was that 25 per cent of the plaintiff's injury causation related to driving conditions, but that the principal cause of his injuries was an event on 22 October 1999. 

11. In a report of 19 May 2003 Mr Woodland set out the history obtained from the plaintiff as follows: 

    "Mr Robertson told me that there was an incident at work in October 1999 (22 October 1999 according to your previous correspondence) in which he was operating an underground mining machine, he developed increasing lumbosacral back pain which worsened over the next few weeks and following Christmas holidays he developed increasingly severe right lower limb pain radiation 2 January 2000." 

1. He reported that the plaintiff would be required to take regular analgesic and anti‑inflammatory medication in the long term, and might require physiotherapy from time to time and management by a pain specialist.  He postulated that if the plaintiff's symptoms deteriorated to the point of disabling back pain further surgical treatment by way of a fusion procedure at the L4/5 level could be undertaken at a cost of $20,000 to $22,000 with a three to six month inability to work post‑surgery. 

2. Mr Woodland reported that the plaintiff would need to avoid activities involving repetitive bending or heavy lifting, did not require domestic assistance to enable him to cope with daily living, and had a sitting and driving tolerance of 60 minutes and a standing tolerance of 30 minutes.  His view was that the plaintiff ought be able to undertake sedentary work for about 20 hours per week, and his working life might have been shortened by five years.  Referring specifically to the plaintiff's pre‑existing spinal condition Mr Woodland stated that absenting any incident it was probable that he would have developed increasing lumbar back symptoms requiring him to retire from the type of work he had been doing at approximately age 60. 

3. In his report of 19 November 2004 Mr Woodland confirmed that the plaintiff had been unable to work since the accident.  He speculated that the plaintiff might be able to get back to some type of sedentary work. 

4. In the course of his evidence Mr Woodland confirmed the contents of his various reports.  When questioned specifically on causation, Mr Woodland referred to the disc protrusion at the L3/4 level, and the L5/S1 spondylolisthesis, and in respect to the latter noted that a person with that condition who was exposed to a single event injury or multiple repetitive injuries could develop back pain because of the inherent weakness at the base of the spine.  He was satisfied that as at January 2000 the plaintiff had an acute disc protrusion – that something happened.  As he put it "it was  a pre‑existing condition of spondylolisthesis at the L5/S1 level and that was rendered symptomatic by whatever cause". 

5. Mr Woodland stated that as at 8 November 2001 when he operated, the L3/4 disc protrusion had subsided such that most if not all of the plaintiff's ongoing back pain originated from the L5/S1 level.  He assessed the likelihood of a requirement for future surgery at some time in the future as a 10 to 20 per cent chance.  He expressed the view that 80 per cent of adults develop back pain, and that people with a spondylolisthesis are more likely to experience back pain than those without the condition.  He stated that there was anecdotal evidence that if the spine was subject to excessive vibration it led to an acceleration of degenerative change. 

6. In cross‑examination Mr Woodland confirmed his view that the plaintiff was fit to undertake 20 hours sedentary duties a week, and agreed it was possible that he might in time graduate to full‑time sedentary work.  He stated that he was unable to say whether the plaintiff's ongoing back pain emanated from a residual problem at the L3/4 level, or from the lower level, or both. 

Andrew Craig Harper

1. Dr Harper, a specialist occupational physician, saw the plaintiff at the request of his solicitors on 5 December 2000, 4 April 2003 and 25 October 2004, and his reports of 6 December 2000, 4 April 2003 and 25 October 2004 were received in evidence (Exhibit 13.1 to 13.3). 

2. In his report of 6 December 2000 Dr Harper stated that the plaintiff gave him a history that he first developed low back pain on 23 October 1999 which came on gradually after work, following a normal day's work.  Symptoms got worse the following day.  He continued on at work until Christmas and on 2 January 2000 woke during the night with extreme pain in the lower back, and loss of feeling in the right leg.  He had not experienced any prior spinal problems. 

3. Dr Harper reported that the plaintiff claimed his sitting tolerance was 30 minutes, and standing and driving tolerance was one hour.  Dr Harper felt that the plaintiff's lumbar disc protrusion resulted from his heavy manual work.  He considered the plaintiff's work capacity was limited to about 15 hours of sedentary duties. 

4. Dr Harper's report of 4 April 2003 was subsequent to the spinal surgery and at that time the plaintiff claimed that his sitting and standing tolerance was of the order of half to one hour.  At that stage Dr Harper felt that the plaintiff's work capacity was limited to something of the order of 10 to 15 hours per week in a sedentary position, although basically he felt that there was no residual capacity.  He expressed the view that the vibrations caused through the driving at work had resulted in disc herniation. 

5. On 25 October 2004 Dr Harper stated that there had been no significant change with regard to the plaintiff's back symptoms, his back pain being constant at a level of severity of 7/10 and aggravated by physical activities. 

6. In evidence Dr Harper confirmed the contents of his reports, and expressed the view that repetitive jarring and vibration was a factor in causing disc and spinal degeneration. 

Leanne Rosemary Lip

1. Dr Lip who was practising in Southern Cross at the material time, was the plaintiff's general practitioner.  Her practice records demonstrated that she saw the plaintiff on 5 January 2000 in respect to the onset of severe back pain since October the previous year.  The practice notes indicated that there had been no prior accidents or injuries, although noting that the plaintiff had felt the occasional twinge whilst driving boggers and trucks. 

2. Dr Lip saw the plaintiff again on 11 January 2000 and apparently referred him for neurosurgical assessment.  Her notes indicate that she saw the plaintiff on several more occasions when his condition had not improved. 

Stephen Jay Proud

1. The plaintiff's solicitor referred him to Dr Proud, a recently qualified psychiatrist, for a medico‑legal assessment, and his reports dated 9 May and 17 October 2000, 26 March 2003 and 20 October 2004 were received in evidence (Exhibit 14.1 to 14.4). 

2. In the report of 9 May 2000 Dr Proud diagnosed the plaintiff as suffering from an unspecified adjustment disorder, which as far as I can make out simply means that he was dissatisfied with the position in which he found himself.  Dr Proud did not consider that their condition was likely to be permanent, nor did he see the necessity for any psychological or psychiatric treatment. 

3. In his report of 17 October 2000 Dr Proud stated that the plaintiff's psychiatric situation had deteriorated, with depressive symptoms being more prominent.  He reported that there was a significant impairment of function as a result of the psychiatric disability.  The report indicates that the psychiatric situation was directly related to the physical disabilities. 

4. In a report of 26 March 2003 Dr Proud expressed the view that the plaintiff had a major depressive disorder of moderate severity in partial remission, although he did not seem to suggest that the psychiatric condition was in its own right vocationally incapacitating. 

5. In a report dated 20 October 2004 Dr Proud referred to his consultation with the plaintiff that day.  He stated that the plaintiff was on the anti‑depressant Zoloft 100 mg per day.  He reported that he expected further adaptation to occur with time, and for the plaintiff's mood to improve somewhat when he successfully completed his studies and gained employment. 

6. During the course of his evidence Dr Proud confirmed the views expressed in his reports. 

7. The practice notes of the Merredin Chiropractic Centre were received in evidence pursuant to s 79C of the Evidence Act (Exhibit 15). 

8. The practice notes are difficult to discern but do indicate that the plaintiff attended Mr Slater on 29 October 1999 when a diagnosis of acute lumbar pain the result of chronic stress was made.  The notes indicate further attendances on 9 November 1999, 12 November 1999 and 26 November 1999.  The radiographic comments seem to read grade 1 pars ?.  The lateral x‑ray analysis seems to suggest that the chiropractor was addressing his attention to the very low lumbar and sacral area. 

Michael John Kent

1. The plaintiff called Dr Kent, an anaesthetist and consultant pain management specialist, who saw him at the request of his general practitioner.  His reports of 8 November and 22 November 2000, and 9 August 2001, were received in evidence (Exhibit 27.1 to 27.3).  He confirmed that the plaintiff was referred for pain management. 

2. In his report of 8 November 2000 Dr Kent speculated that the plaintiff's back pain was predominantly due to the L3/4 disc prolapse and annular tear, although his report of 22 November 2000 suggested that the majority of back pain was in fact due to the spondylolisthesis at L5/S1 and the bilateral pars defects. 

3. In his final report he stated: 

   "Mr Robertson presented to me a confusing picture.  I think his original symptomatology was in fact due to the L3/4 disc prolapse and sequestration of disc fragment causing an L4 radiculopathy.  There is at least radiographic evidence of a resolution in large part of this abnormality.  I think his current pain relates to the L5/S1 motion segment and discography would suggest that the L5/S1 disc is the most likely pain generator at this time." 

4. In the course of his evidence he confirmed that although an early MRI scan showed an L3/4 disc prolapse with compression of the right L4 nerve root, when he saw the plaintiff on 22 November 2000 the picture had changed considerably in that in respect of the disc prolapse the disc fragment pressing on the L4 nerve root had been reabsorbed and the back pain seemed referrable to L5/S1. 

5. Dr Kent stated that a lumbo discography performed on 23 February 2001 demonstrated abnormal discs at L3/4, L4/5 and L5/S1, although the pain seemed to relate to the L5/S1 area. 

6. In addressing the issue of the acute presentation on 2 January 2000 Dr Kent said: 

   "The original insult might have resulted in a weakening of the disc and acute pain at the time.  That could have been in October.  It can then settle to one degree or another but the underlying problem still remains.  That can then present days, weeks or months later as an acute disc prolapse and acute nerve root symptoms.  Mr Robertson's history is not incompatible with that scenario." 

Geoffrey Roy McDonald

1. Mr McDonald is employed as a shift supervisor for WMC and works at Leinster but had previously worked for the defendant, beginning in 1992/3 as a nipper and working his way up to a shift supervisor in 1999.  He confirmed that there were occasions when he worked with the plaintiff who he described as a good worker with an excellent attitude and who was safety conscious.  He stated that as a shift supervisor he would not be prepared to engage the plaintiff to work underground because of his back injury. 

2. He referred to an occasion when during a discussion Stan Gillman commented on one of the plaintiff's plods which referred to an unserviceable driver's seat.  He stated that Stan Gillman's attitude to the plod was the same as his would have been, mainly "just get on with it".  He stated that Stan Gillman's attitude was one of displeasure.  He thought that the plods were kept for six years. 

3. Mr McDonald was referred to one of his own plods dated 28 August 1999 which contained a notation that the seat on B 15 needed replacing.  He stated that if a report was made about a defective seat his attitude would be to tag out the machine until the seat was repaired.  Another one of his plods dated 3 September 1999 contained a further notation about the seat on B 15 requiring attention. 

4. His recollection was that whilst working at Golden Pig in 1998 and 1999 there were times when there was a shortage of road base. 

5. Mr McDonald indicated that he had no difficulty obtaining work as a shift boss in the mining industry.  He stated that he was earning $120,000 gross per year together with superannuation. 

6. In cross‑examination he stated that he had been working in the mining industry for 11 years and had worked for the defendant for seven of those years. 

The defendant's evidence

Stanley Joseph Gillman

1. Mr Gillman, a director of the defendant, has been involved in the mining industry for many years.  He had nine years experience as an underground air leg miner with Western Mining Corporation, and 25 years underground mining experience.  He stated that the defendant had been engaged continuously by Sons of Gwalia operating the Golden Pig and Fraser mines since 1996.  He stated that due to the closure of several mines where the defendant was working, it had a repository of surplus mining machinery available to it at Southern Cross including five or six trucks and a similar number of boggers. 

2. He confirmed that road base or crushed rock was spread on the mine road surfaces to provide a final surface, and it was obtained from around the mine or brought in.  He stated that the defendant organised a screen deck in about November 1999 to provide its own supply of road base.  Generally road base was taken underground by the bogger operators, and the decision as to when to take and spread more road base seemed from his evidence to sometimes be left to the bogger operators.  He disagreed with a comment made by the plaintiff that 800 tonnes of road base would be totally inadequate, stating that the Golden Pig roads were of a hard flat surface and consequently did not require copious amounts of road base.  Basically maintenance consisted of filling in the potholes and smoothing off. 

3. Mr Gillman could not recall the plaintiff ever complaining about the lack of road base.  He was unable to recall any occasions when there was a lack of road base at Golden Pig, although he had no doubt that there were times when it was in short supply.  Mr Gillman explained that the underground roads were formed by the bogger operators, following drilling and blasting in the decline, sheeting up behind as the decline moved forward.  He disagreed strongly with the plaintiff's contention that the roads at Golden Pig were in a woeful condition.  When asked about "toes", Mr Gillman stated that they were generally located at the drill face and were subsequently eliminated by filling or otherwise as the excavation proceeded.  Pot holes were generally filled.  Although a grader was engaged from time to time, the road maintenance work was often undertaken by the machinery operators.  He stated that the defendant had a good induction system and that instructions were given to employees to note on their plods any equipment failures and/or to tag up defective machinery. 

4. Mr Gillman could not recall the plaintiff complaining to him about the condition of seats in the machinery.  He denied that the plaintiff handed him a plod in October 1998 in which he made a firm complaint about the condition of a seat in a vehicle, and stated that he had never abused the plaintiff or threatened him with dismissal.  He stated that the plaintiff had good underground skills but there had been an issue in 1999 when the plaintiff made a personal attack concerning the mine foreman. 

5. Mr Gillman confirmed that the seats in the trucks and boggers were adjustable to meet the particular requirements of the operator.  He stated that if an operator was not satisfied with the condition of the seat a vehicle he could report it on the plod or tag the machine out.  If an operator tagged the machine out, he could park it up because there was generally another machine available.  He claimed that the defendant did not have any difficulty with operators tagging out machinery since its policy was to encourage proper maintenance. 

6. He had no recollection of swearing to a Mr McDonald about the behaviour of the plaintiff.  He claimed that the normal changeover period for a defective seat would be 24 hours.  There was an eight man maintenance crew headed by John Gillman, the maintenance supervisor, to deal with defective equipment and machinery, and it was not subject to budgetary restrictions.  There was also a practice of cannibalising parts from machines that were excess to requirements. 

7. Mr Gillman stated that at the conclusion of a shift it was the practise of the operator to complete his plod and hand it into the shift boss who would then bring any maintenance requirements to the attention of the maintenance crew.  He confirmed that the defendant's operations resulted in the production of about 200 to 250 plods a week.  Having been dealt with, the plods were archived for a period of time before being destroyed.  As a consequence of reorganisation, all plods in storage prior to January 1999 were incinerated at about that time.  Following a request from the plaintiff's solicitors he searched for the plods covering the period January to October 1998 but could not locate them. 

8. Mr Gillman could not recall the plaintiff making any specific complaints about the condition of the mine roads in 1998.  He advised that the defendant's line of employment authority was that there was a mine foreman, Justin Leda; three shift bosses Lee Giles, Brian Bosenberg and Wayne Conway responsible to Mr Leda; and then the production crew which included the machine operators such as the plaintiff. 

9. Mr Gillman said that Fraser's mine was a very wet mine and required considerable grading to keep it operational, whereas Golden Pig was a dry mine.  He stated that the roads at Golden Pig were as good as the roads in any of the other mines in which he had worked over 25 years.  It was not possible to get the grader in near the ore drives, and it was the responsibility of the bogger drivers to keep the roadways clean. 

10. Mr Gillman claimed that the haulage ways were graded on about a weekly or perhaps fortnightly basis in 1988-1999.  The grading duties were undertaken by Mr Gillman, his brother Greg, or Harry Watts.  Mr Gillman stated that in an eight hour shift a machinery operator would be in his seat for about six and a half hours.  He stated that there were monthly safety meetings and additionally occupational health meetings attended by all employees.  The machinery was serviced regularly including comprehensive weekly services. 

11. In cross‑examination Mr Gillman seemed to retreat to the position that grading was not done more regularly than fortnightly.  When asked whether he ever received any complaints about the roads he responded that there would always be problems with road conditions in the underground mining environment.  From time to time the roads would be cut up and require attention.  He asserted that road base was on site most of the time, but there were occasions when it was not available. 

12. He agreed that the defendant was not producing road base until mid‑1999, and prior to that was buying it.  When shown the spread sheet (Exhibit 18) he agreed that it demonstrated the defendant did not purchase road base in January, May, September, October, November and December 1998 nor May, July or August of 1999, but notwithstanding he asserted that there was generally sufficient road base available. 

13. Mr Gillman agreed that Mr Tynan who was engaged by the defendant as a safety consultant had reported that roadworks were required throughout the mine, but commented again that it was an ongoing process.  Essentially he seemed unable to make any useful contribution to the condition of the roads at the time of Mr Tynan's report.  He was referred to Mr Tynan's report of 28 January 1999 which contained a further reference "declines require a lot of road base and need more work cleaning up and grading closer to the working levels". 

14. Mr Gillman was referred to the Occupational Health and Safety Committee meeting of 20 May 1998 which referred to the deteriorating state of the roads, and agreed that was indicative of a problem at that time, and that the minutes suggested an ongoing problem.  The minutes of the meeting on 14 July 1998 noted that the L6 north drive under the sublevel access was in atrocious condition and required cleaning.  Mr Gillman stated that was an area that was unable to be graded, and had to be cleaned up by the bogger drivers.  Its significance depended upon when firing occurred as the condition referred to was to be expected immediately after a firing.  He agreed, however, that if the bogger drivers were doing their job the drive should not be in an atrocious condition. 

1. The safety meeting minutes of 6 May made reference to the fact that roadworks were required in and around the drives, especially in K7 area.  Mr Gillman said that it simply indicated a necessity for the bogger driver to run the bogger bucket along the wall.  He appeared to concede that there were problems experienced from time to time with the ground water pumping arrangements and that he had seen drives where water had washed away the fill, causing corrugations. 

2. The minutes of 5 August 1998 made reference to flooding, the necessity for grading, and the scarcity of road base.  The spread sheet demonstrated that road base was not purchased in August 1998. 

3. The minutes for 2 September 1998 again contained reference to Mr Gillman's request that road base be used sparingly.  The spread sheet demonstrated that road base was not purchased in that month. 

4. The minutes for the meeting of 14 January 1999 recorded that the grading hours in November and December 1998 had reduced significantly.  Road base had not been purchased in November or December 1998, which appeared consistent with that minute, although Mr Gillman pointed out that the roads could still be graded whether or not there was road base, as it was possible to use material in the side windrows.  The minute suggested that the road conditions were causing damage to truck tyres.  Mr Gillman expressed the view that it was probably in the load areas.  He agreed that the provision of road base and road  conditions was a general safety issue, and that he understood that jolting and jarring on rough roads had the potential to result in back injury to machinery operators. 

5. The minutes of the safety meeting on 7 April 1999 referred to the plaintiff enquiring as to the availability of road base and being advised that it would be available by the end of the week, and that the defendant was looking into crushing on site. 

6. Mr Gillman did not agree that the conclusion to be drawn from the safety meeting references was that there was generally an insufficiency of road base on site, claiming that the supply was adequate to maintain the roads in reasonable condition. 

7. Mr Gillman agreed that a plod completed by Mr Bosenberg on 21 January 1999 referred to the necessity for roadworks, and that his plod of 12 April 1999 noted that the road was washed out. 

8. In cross‑examination Mr Gillman agreed that there were references by various employees to the fact that the roadway in certain areas was poor and/or in need of cleaning and attention, but protested that was not an unexpected consequence of mining activities.  He agreed, however, that because of the rough road conditions that would be expected to be encountered from time to time, it was important that the seats in the trucks and boggers were adequate to meet the situation. 

9. Mr Gillman's plod of 8 August 1999 described the conditions underground at that time as "shit". 

10. Mr Gillman was unable to point to any documentary record that a truck or bogger had been tagged out because of a defective seat between January 1998 and December 1999. 

11. Mr Gillman was cross‑examined on the spread sheet, and agreed that it demonstrated that in respect of bogger 13 the seat was repaired in June 1998 and there was no indication that it had ever been replaced.  Bogger 15 had seats replaced in January 1998 and December 1999, but there was no indication of any seat repairs.  Truck 6 had replacement seats in April and October 1998 and June 1999, and a seat repair in August 1998.  Truck 9 had seat replacements in April 1998 and December 1999 and seat repairs in May and August 1998 and June and November 1999. 

12. Mr Gillman stated that if seats had been cannibalised from another machine, however, there would be no record and it would not show up on the spread sheet.  It was put to Mr Gillman that an examination of the plods when compared to the spread sheet suggested that complaints about the condition of seats often did not receive very prompt attention. 

13. When it was put to him that his evidence that seats were replaced within 24 hours of complaint was incorrect, Mr Gillman responded "apart from unallocated seats or seats being moved in from the other machines that we had parked up and we were cannibalising, I cannot prove that we were putting the seats in with this proof". 

14. Mr Gillman could not recall telling Jeff McDonald that he was "pissed off" with the plaintiff.  Similarly he had no recollection of seeing a plod completed by the plaintiff complaining about a defective seat and suggesting that it might give rise to injury and legal proceedings.  He went further, and denied that it had occurred. 

15. Mr Gillman was referred to an internal memorandum from Graham Lingard, the mine foreman, dated 26 February 1999 contained in Exhibit 2 noting that the general condition of the underground roads had deteriorated and required prompt attention to bring them up to the required standard.  He stated that he was not in a position to disagree with that assertion. 

16. In re‑examination Mr Gillman confirmed that as a result of the mining operation there were approximately 96 plods received per week over the 51 working weeks of the year.  He agreed that there was probably something of the order of 10,000 plods that had come into existence, and of those it appeared from the documentation that there were a very small number that asserted problems with seats and/or the condition of roads.  He stated that the spread sheet did not record unallocated seats or seats cannibalised from other vehicles. 

Martin Eric Simms

1. Mr Simms is a consultant mechanical engineer, and apart from his specialist qualifications, has been a mechanical fitter.  At the request of the defendant's solicitors he carried out an assessment of the seats in the R 1500 bogger and the Torro dump truck used by the defendant.  His report of 12 February 2004 was received in evidence (Exhibit 16). 

2. The report essentially addressed a proposition advanced at an early stage by the plaintiff that the KAB 300 Series seats fitted to the bogger and dump truck were not suitable for the rugged conditions in underground mining, and that KAB 515/525 seats were more suitable.  Mr Simms' report concluded that the KAB 525 seat was not suitable for installation in the bogger because of its dimensions, and would have made the operation and control of the bogger difficult and possibly hazardous. 

3. Mr Simms concluded that the KAB 525 seat could be installed in the dump truck, but concluded that given the similarity between the suspension mechanism of the KAB 301 and the KAB 525, and the use of a gas strut as the main suspension medium, the only benefit of the 525 was that there was adjustment for a driver's body mass which was only of consequence in respect of very light and very heavy drivers.  At a mid‑range weight (80/90 kg) the expectation was that the two seats would have similar capacity. 

4. The report indicated that because of the limited clearance between the bogger and mine walls, the operator was necessarily constrained to an appropriate speed for the conditions.  It indicated that both the bogger and the dump truck had large flotation type tyres which provided a good level of isolation from surface irregularities. 

Steven Chew

1. Dr Chew is a consultant mechanical engineer.  He too was instructed by the defendant's solicitors to carry out an assessment of the operator seated work station on the bogger and the Torro 35D dump truck, and his reports of 10 November 2003 and 24 February 2004 were received in evidence (Exhibit 17.1 & 17.2). 

2. Dr Chew's first report specifically addressed matters raised by Dr Ian Gibson.  He agreed that there was a phenomenon described as whole body vibration (WBV) which was known to cause low back injury brought about by an accumulation of strains over a period of time.  He agreed with the fairly obvious propositions put by Dr Gibson that the three main sources of vibration transmitted to the operator of a vehicle were road surface, vehicle speed, and engine vibration, and that in that respect the condition of the vehicle's suspension and seating were important. 

3. He reported that whether the driver's seat amplified vibration or attenuated it by damping, depending on the characteristics of the springs and gas strut used.  It was his view that significant testing in the work situation was required before any informed comment could be advanced as to the plaintiff's WBV exposure and the consequences thereof.  He agreed that it was important that vehicle seats be regularly inspected and properly maintained. 

4. He agreed that literature dating back to the 1980's contained epidemiological and anecdotal evidence linking exposure to WBV with the development of low back pain in drivers' and operators' of mining equipment. 

5. In his report of 24 February 2004 Dr Chew recorded that he had inspected the operator work station on an Elphinstone bogger and the operator cab of a Torro 35D dump truck.  The vehicles were located at the defendant's Southern Cross operation.  Dr Chew also entered the underground mine to observe the typical tunnel roads and a bogger being operated by remote control. 

6. He reported that the KAB 301 seat fitted to the bogger had a mechanical torsional bar suspension and a gas strut damper.  A KAB 525 seat had a mechanical torsional bar suspension, two coil springs, and a gas strut damper.  The report concluded that the KAB 525 seat could not be fitted to the bogger and stated generally about its comparison with the KAB 301 seat that: 

   "Whilst the KAB 525 seat, in comparison to the KAB 301 seat, has additional features which are desirable from the ergonomic prospective, namely the adjustable lumbar support and the weight dialler, there is yet no evidence to support the hypothesis that the whole body vibration experienced by an operator of the Elphinstone R1500 bogger fitted with a KAB 301 seat is at harmful levels, nor is there evidence to support the hypothesis that replacing the KAB 301 seat by a KAB 525 seat will reduce the whole body vibration experience by the bogger operator." 

7. That assessment related also to the Torro 35D dump truck although it was accepted that the KAB 525 seat could be fitted to the dump truck. 

8. Dr Chew confirmed the contents of his reports in evidence. 

9. In cross‑examination Dr Chew agreed that WBV was an accepted risk of injury to drivers of boggers and trucks in the mining industry and was so recognised in the 1990's.  He also agreed that if the mine roads were not maintained to a proper level and/or the vehicles were not properly maintained, the risk was increased.  He made the obvious comment that a mine road would not be or be expected to be as good as roads provided for normal vehicular traffic. 

Lawrence Dominic Terace

1. Dr Terace, a consultant psychiatrist, reviewed the plaintiff at the request of the defendant's solicitors on 3 January and 3 December 2001, and 2 November 2004.  His reports dated 1 February 2001, 4 December 2001 and 23 November 2004 were received in evidence (Exhibits 19.1 to 19.3). 

2. In the report of 1 February 2001 he made reference to the fact that the plaintiff was referred by his lawyer to Dr Proud "for a medico‑legal assessment, and not specifically for treatment".  He concluded that the plaintiff's psychological complaints suggested a mental state of irritability and irritable mood impairment meeting the criteria of a low grade or mild recognisable psychiatric condition. 

3. He observed that the plaintiff was taking the anti‑depressant Zoloft prescribed by the general practitioner, and considered that appropriate treatment.  He did not consider that the plaintiff required psychiatric attention, although suffering from low grade or mild depression and an adjustment disorder with depressed mood. 

4. He considered that the psychiatric prognosis was good and that the psychological symptoms would resolve with time.  His estimate was that significant improvement or remission would occur within two years and/or after the resolution of the claim, whichever first occurred.  He reported that the plaintiff should see his general practitioner on a monthly basis for supervision of his medication.  He did not consider that the psychiatric condition affected the plaintiff's capacity for employment. 

5. In his report of 4 December 2001 Dr Terace recorded that the plaintiff expressed preoccupation with his perception of pain and his disability, marital difficulties, financial difficulties, and the legal process.  He confirmed that the position had changed little since his first report.  The plaintiff continued to suffer from low grade or mild adjustment disorder or major depression, the condition correlating closely with his pain level. 

6. In the final report dated 23 November 2004 Dr Terace noted that the plaintiff was seeing his general practitioner on an as required basis every three months.  Medication at the time of Dr Terace's final review was Tramel 200 mg, Zoloft 100 mg per day, and six Panadeine Forte per day.  Dr Terace stated that the psychiatric condition had improved since his earlier assessment and was in partial remission.  He stated that the prognosis was good but that the plaintiff would probably require Zoloft for another six months to two years. 

Harold Raymond Schaeffer

1. Mr Schaeffer, a retired consultant neurosurgeon having practised that discipline for almost 50 years, saw the plaintiff at the request of the defendant on 15 March 2004, and his reports of 15 March 2004 and 16 July 2004 were received in evidence (Exhibit 20.1 & 20.2). 

2. On 15 March 2004 Mr Schaeffer reported that the plaintiff indicated that his back symptoms commenced on or about 23 October 1999 when he felt particularly uncomfortable driving machinery, and when he experienced pain in the central and right low back region towards the end of the day.  Mr Schaeffer set out the symptom development history, including the acute episode of back pain on 2 January 2000.  He reported that the plaintiff complained to him of intense daily low back pain, particularly severe when standing.  The plaintiff stated that he could walk slowly for about 10 minutes and maintain a sitting position for 30 minutes to 1 hour. 

3. Mr Schaeffer reported that plain x‑rays taken 2 January 2000 revealed congenital pars inter‑articularis defects of L5, and that subsequent radiological examination revealed a laterally placed disc protrusion at L3/4 on the right side with impingement upon the right L4 nerve root.  Radiological examination carried out on 13 January 2003 (post‑operation) indicated that the L3/4 disc protrusion had resolved, and there was no evidence of compression of the S1 nerve roots at the L5/S1 level where there was solid fusion. 

4. Mr Schaeffer reported that the spinal fusion although technically successful, did not appear to have reduced the plaintiff's back pain probably because it was emanating from more than one lumbar level.  He expressed the view that the essential cause of the plaintiff's symptomatology was degenerative disc disease of the mid and lower lumbar spine, the L5/S1 spondylolisthesis having played some part in destabilising the lumbar spine.  He reported that these were constitutional problems and not precipitated traumatically.  He further reported: 

   "Indeed there is no history of any obvious specific injury to the lumbar spine in this case.  He alleges that his symptoms have been caused or precipitated by the jolting and jarring movements while driving machinery at work, but I find it difficult to see how this is something that would have resulted in any actual structural injury to the lumbar spine.  It could, of course, have resulted in some degree of symptomatic aggravation, but I'm not satisfied that it has constituted a significant causal factor in respect of his current disability.  Certainly the underlying degenerative condition and the spondylolisthesis are much more important aetiological factors." 

5. Mr Schaeffer summarised his views as follows: 

   "My diagnosis is that of degenerative disc disease of the lower lumbar spine, substantially at the L3/4 and L5/S1 levels and a congenital spondylolisthesis at the L5/S1 level.  There is likely to have been a work related aggravation." 

6. He expressed the view that the plaintiff was not fit for full or part‑time employment in his pre‑injury work and was limited to sedentary tasks. 

7. In his report of 16 July 2004 Mr Schaeffer seems to take the position that as the surgery was work related, the disability must to some extent be work related, but that apparently because he assumed that there was an injury on 23 October 1999 during the course of the plaintiff's work, although even then he did not consider that to be a significant causal factor.  He recorded his view that the injury represented a temporary aggravation of the degenerative condition and spondylolisthesis. 

8. Mr Schaeffer confirmed in evidence the views expressed in his reports, and in particular the view that the events of 22 October 1999 did not constitute anything more than a temporary aggravation of the underlying spinal conditions.  He considered there must have been some advancement in the degenerative condition proximate to 2 January 2000 when the plaintiff experienced an acute onset of pain. 

9. Mr Schaeffer stated that medical studies demonstrated that in 40 per cent of disc protrusion there was no history of a traumatic event, the protrusion being a spontaneous process because of the reasons which he outlined.  Where the prolapse was precipitated by injury it was usually the result of a bending and/or lifting incident.  Trauma did not cause degeneration.  He stated that he had difficulty accepting that the driving of vehicles played a substantial part in the development of disc herniation, and did not accept that driving resulted in any structural alteration of the appearances of the plaintiff's lumbar spine. 

10. When asked in cross‑examination to comment on WBV, Mr Schaeffer stated: 

    "Look, back symptoms particularly in middle age are ubiquitous and I'm not surprised that anybody will experience some back symptoms under various circumstances including what you suggest." 

11. He stated that his experience was that the commonest age group for adults suffering lumbar disc problems was 30 to 40 years.  Pre‑existing degeneration was a prerequisite for disc herniation, but Mr Schaeffer would not accept that driving over rough conditions was likely to accelerate the degenerative process. 

Alan Home

1. Dr Home, an occupational physician, saw the plaintiff on 27 October 2003 and 20 October 2004, and his reports of 27 October 2003, 20 October 2004 and 4 November 2004 were received in evidence (Exhibit 21.1‑21.3). 

2. On 27 October 2003 Dr Home reported that the plaintiff was suffering from persisting mechanical back pain as a consequence of multi level degeneration at the L2/3, L3/4, L4/5 and L5/S1 levels, and post‑operative changes at L5/S1.  

3. In his report of 20 October 2004 Dr Home recorded that the plaintiff continued to describe chronic low back pain predominantly right‑sided without significant pain referral.  In addition he was receiving treatment for depression.  Dr Home felt on examination that the plaintiff's complaints were consistent, and stated that there had not been any significant change in presentation since the first review.  He concluded that the plaintiff was not fit to resume his pre‑accident employment as an underground miner on a full or part‑time basis, concluding that he was only fit to undertake semi‑sedentary work for up to 20 hours per week. 

4. In the course of his evidence Dr Home expressed the view that the acute disc protrusion at L3/4 probably occurred proximate to 2 January 2000 when the plaintiff experienced an acute onset of pain.  As with Mr Schaeffer, he considered that spinal degeneration was a prerequisite to an acute disc protrusion.  He did not consider that the plaintiff could appropriately undertake shift supervisor's work in the mine situation. 

5. In cross‑examination Dr Home stated that the issue of whether exposure to low frequency vibration contributed to degenerative change was controversial although there appeared to be a correlation between driving heavy vehicles and the development of back pain, although even in that respect the studies were equivocal and there was insufficient epidemiological evidence to reach a firm conclusion.  He expressed the view that because the plaintiff was able to drive heavy machinery between 22 October 1999 and 23 December 1999 it was unlikely that he had an acute disc protrusion on 22 October 1999. 

Peter James Tynan

1. Mr Tynan has had about 25 years experience in the mining industry, undertaking various facets of underground mining, and specialises in providing safety and training within the industry.  He holds qualifications in occupational health and safety.  He investigated and reported on the plaintiff's injury (Exhibit 9).  During the course of his investigation he spoke with the plaintiff who indicated that he had no recollection of any specific event causing the development of pain on 22 October 1999. 

2. Mr Tynan confirmed that he had undertaken assessments and prepared safety reports for the defendant from time to time as part of the defendant's routine management practice.  He stated that Golden Pig represented a fairly typical type of underground operation for its size. 

Gregory Alan Gillman

1. Mr Gillman, a director of the defendant, is its assistant manager at Golden Pig.  He was at that mine in 1998/99 at which time he was in charge of diamond drilling.  He stated that at that time Wayne Conway was the safety officer and shift boss.  Mr Gillman stated that he operated the grader from time to time, but it was only possible to grade the main decline, and not the ore drives where road maintenance was undertaken by the bogger operators. 

2. He stated that there was approximately 8 km of road at Golden Pig and it would take about eight hours to grade the roads, although he seemed to be only engaged in grading for two to three hours, presumably attending to the surface in most need of attention.  He stated that apart from Golden Pig he had worked at Mount Gibson, Rupau and Great Victoria mines, and that the roads at Golden Pig were of similar condition.  He stated that the condition of mine roads were constantly changeable and that it was necessary to drive to the conditions. 

3. Mr Gillman could not recall problems with the supply of road base at Golden Pig but agreed that there were occasions when road base was scarce but stated that his recollection was that there was always some available.  . 

4. It appeared from cross‑examination that in fact Mr Gillman was away from Golden Pig for periods of time managing other mine sites. 

5. Mr Gillman could not recall any particular problems with the seats of the underground machinery, and/or the condition of the road surface.  Although I have little doubt that he was a truthful witness, his evidence generally was vague and uncertain. 

Wayne Conway

1. Mr Conway was the defendant's safety officer.  He pointed out that the defendant had a maintenance team headed by a maintenance supervisor which was responsible for checking plods and dealing with any maintenance requirements.  He stated that as a general rule most of the faults reported to maintenance were unrelated to seats.  He stated that the roads were kept in repair by a grader driver, whose task was to do all the main haulage ways.  The bogger operators attended to the ore drives.  It appeared from his evidence that some of the bogger operators were somewhat dilatory in this respect.  He agreed that there were occasions when the defendant ran low on road base but stated that the waste or dirt from the ore drives was generally available for road surfacing. 

2. Mr Conway could not recall the plaintiff complaining about vehicle seats or road conditions.  He confirmed the obvious point that it was necessary to drive to the conditions. 

3. In cross‑examination he agreed that the plaintiff appeared to adopt safe work practices, although his contact with the plaintiff was somewhat limited in terms of being his shift boss.  Although he could not recall the plaintiff complaining of seats and/or road conditions he agreed that he could not exclude the fact that he did in fact complain.  He agreed that the defendant had problems with road base on a few occasions, and it can be inferred that he meant from that that there were times when road base was not available. 

4. Although asserting that the main haulways were generally well maintained, Mr Conway agreed that there were times when by reason of spillage or other causes the road conditions were not satisfactory for the smooth operation of vehicles.  He agreed that some dewatering problems had been experienced at Golden Pig, but pointed out that it was a harsh environment.  He could not recall any occasion when a seat was tagged out, pointing out that it was the operators responsibility to tag out a defective seat. 

Robert John Leggerini

1. Mr Leggerini is presently employed as a mines inspector with the Department of Industry & Resources having held that position for 29 years.  His job involves visiting all active mine sites within a particular region which included Southern Cross where the Golden Pig operation was conducted.  He stated that he endeavoured to visit underground mine sites at least four times a year and his recollection was that he would have visited Golden Pig approximately four times in 1999.  He stated that it was his practise to intermingle with the employees, and that from time to time they would make safety issue complaints to him.  He could not recall the plaintiff ever complaining about road conditions or vehicle seats. 

2. His report following an inspection of Golden Pig on 23 June 1999 was tendered in evidence (Exhibit 22).  That document indicated that no significance safety issues were detected on that occasion.  Because he got transferred to the Collie region sometime in 1999 he was unable to confirm that he attended Golden Pig four times during that year.  He also confirmed that the condition of roads on a mine site was in a constant state of flux.  He had a recollection that there was an occasion when he noted water problems in the Golden Pig decline. 

John Kent Gillman

1. Mr Gillman, a qualified diesel mechanic, stated that he worked for the defendant at the Transvaal mine as an underground shift fitter, and subsequently as a leading hand, maintenance planner and maintenance supervisor at Golden Pig.  His recollection was that he was maintenance supervisor at Golden Pig during 1998 and 1999.  He knew the plaintiff. 

2. In respect to maintenance he stated that on each shift there was an underground fitter, a workshop fitter and an apprentice.  At shift changes they would perform daily servicing, greasing, checking vehicles for damage, and dealing with anything the plods noted required attention.  He stated that the mine operated almost every day of the year. 

3. When he was maintenance supervisor at Golden Pig in 1998/99 there were approximately 12 people in the workshop crew.  Apart from his supervising work in the maintenance workshop he also went underground on a regular basis to attend to machinery.  He stated that each machine operating at the mine had a weekly service.  The haul trucks and boggers also had a 125, 250, 500, 750, 1,000 and 2,000 hour lubrication service.  He stated that employees did tag out machines from time to time, and that the practice was encouraged by the defendant.  When a machine was tagged out there was usually another machine available to take its place. 

4. Mr Gillman said that the leading hands and himself had authority to purchase seats, and he recalled purchasing seats.  There were also machines in the town yard which were cannibalised.  He stated that a lot of the reported seat faults did not require seat replacement but merely attention to the damper (shock absorber).  If a seat was not able to be repaired seats were available in the town yard, there being three to five spare seats available.  He estimated that vehicle seats were probably replaced several times a year.  He could not recall an occasion where a spare seat was not available when required. 

5. Mr Gillman identified a service sheet dated 2 September 1999 as one of the service sheets used at Golden Pig (Exhibit 23).  He stated that during the weekly services it was the practice to get into and operate the trucks and boggers.  He stated that any problems connected with brakes, lighting, steering, seats or tyres was normally actioned immediately.  He had no recollection of the plaintiff complaining about the condition of seats or roads. 

6. In addition to Golden Pig Mr Gillman had worked at Transvaal, Fraser's, Great Victoria and Marvel Lock in Western Australia and the Spring Creek Coal mine in New Zealand and he stated that the roads at Golden Pig were typical of the roads at other mines.  He stated that the main access, main decline and main haulage ways were graded, but the working headings were maintained by the boggers. 

7. In cross‑examination he agreed that if there was a report of a seat being unsafe and the problem was not immediately rectified, somebody was falling down on their job.  He did not agree that the fact that there were regular complaints concerning the seating on a particular machine indicated that maintenance was defective, pointing out that the KAB 301 seat, being a single damper seat, did give rise to regular maintenance problems.  Mr Gillman did seem to agree that the machinery service check list did not contain a check seat item until about mid‑1999. 

8. He agreed that from time to time there were problems with the dewatering system as a result of which excess water washed away road base.  So far as tyre pressure on the boggers and trucks was concerned he stated that they were set at the manufacturer's recommendation. 

9. In re‑examination he was referred to service sheets relating to a bogger which demonstrated that in 1997 and 1998 there was a specific requirement to check seats and seatbelts.  The weekly service sheets dated 1 October 1997 and 10 January 1998 were tendered in evidence (Exhibit 24). 

Craig Vincent McSkimming

1. Mr McSkimming is a maintenance supervisor employed by the defendant at Golden Pig.  It appears that he was a leading hand at the relevant time, and knew the plaintiff.  He stated that he had driven boggers, haul trucks and light vehicles at Golden Pig and described the roads in the mine as "generally acceptable".  He stated that it was the bogger drivers' responsibility to look after the roads in the ore drives or headings.  He stated that bogger drivers were responsible for taking road base into the mine when required, and that is was customary then for them to back blade or spread the road base. 

2. He confirmed that in 1998/99 the boggers and haul trucks were serviced weekly, with additional regular wet servicing which included oil and filter changes.  Running repairs were carried out when required.  He confirmed that the defendant operated an out of service tagging system, and plods, to bring to attention servicing requirements.  There was also daily maintenance of vehicles between shifts.  He stated that all operators were told to note any vehicle defects on their plods which were regularly checked by maintenance.  Maintenance requirements notified on the plods were generally attended to within a day. 

3. Mr McSkimming stated that blown out shock absorbers was the most common problem with vehicle seats requiring changing of shock absorbers.  If the problem was irreparable, the seat would be taken out and replaced with a new or reconditioned seat.  Seats were also sent to Perth to be repaired.  He stated there may have been occasions when replacement seats were not available when required, but could not recall any occasion when a seat in a machine remained unserviceable for weeks. 

4. Mr McSkimming was shown a time card for 3 September 1999 which had been completed by him demonstrating that a seat on B 15 had been replaced (Exhibit 25).  He was also referred to Exhibit 23 (the weekly service sheet) relating to B 15 which sheet he stated confirmed that on 3 September 1999 the seat on B 15 had been changed.  He believed a new seat had been fitted, although he was unable to establish that from documentation.  When it was put to him that the replacement seat might have been cannibalised from another machine he stated that was not a practice that was followed. 

5. When it was put to him that plods indicated complaints about the seat on B 15 on 28 August 1999, 29 August 1999 and 3 September 1999 he was unable to provide an explanation as to why the problems had not been rectified save to say that it would have been checked on those occasions. 

6. Mr McSkimming said that there were numerous occasions in the period of his employment where machines had been tagged out of service because of defective seats.  He stated that he was not aware from complaints or otherwise that road base was scarce on site from time to time, claiming that it was always available.  When he was challenged as to the availability of road base he stated: 

   "There is always road base underground.  You can always resurface the old stuff by grading it and rebogging the old sumps." 

Murray Lee Giles

1. Mr Giles is employed by the defendant as a shift boss and has been in its employ for about eight years.  He has been involved in the mining industry for almost 50 years.  He stated that he had driven boggers and haul trucks.  As a shift boss it was his duty inter alia to keep an eye on safety and general running of the mine.  He reported to Justin Leda, the foreman, or Stan Gillman. 

2. He could not recall the plaintiff complaining to him about defective vehicle seats in 1998 or in 1999.  He described the road surfaces at Golden Pig as comparable with those in numerous other mines where he had worked.  He was unable to recall the plaintiff making any complaints about road conditions.  He was unable to recall road base being scarce during 1998 and 1999. 

Justin Vivian Leda

1. Mr Leda is employed by the defendant as a mine foreman at Golden Pig, having held that position for approximately six to eight years.  He supervised the whole workforce including the miners and the maintenance staff, and inspected the underground workings on a frequent basis.  Mr Leda had been involved in the mining industry for 18 years and had worked at Edwards Find, Great Victoria, Transvaal and Fraser's.  He stated that the condition of the underground roads at Golden Pig was similar to those at the other mines. 

2. He stated that at Golden Pig, unless there was an influx of water from rain or a broken line, the roads held up fairly well in the top part of the decline, and the ore drives were regularly attended to by bogger drivers.  He stated that bogger drivers made frequent running repairs to the main decline roadways.  He was unable to recall the plaintiff making complaints about road conditions.  He similarly could not recall the plaintiff complaining about the condition of seats in the vehicles.  He had regular contact with the plaintiff. 

3. In cross‑examination he agreed that there were occasions when processed road base was scarce, and the issue being raised at safety meetings.  He pointed out, however, that it was possible to use the blast dirt or the dirt on the side of the declines to surface the roads.  He agreed that there was a notation in the audit check list (Exhibit 2) for 13 September 1999 where he had indicated that there was inadequate road base.  There was a similar notation for 22 October 1999. 

4. Mr Leda was referred to audit reports of 21 July 1999 and 23 December 1999 in which he had noted that the state of the roads was okay.  The audit reports were received in evidence (Exhibit 26.1 & 26.2). 

Brian Stephen Bosenberg

1. Mr Bosenberg is employed as a shift supervisor with the defendant having held that position for eight years.  He was familiar with the plaintiff.  As a shift supervisor his duties included the health and safety of the miners, and production supervision.  His work involved regular contact with the miners.  He had no recollection of the plaintiff complaining to him about the seating of vehicles or road conditions.  He described the roads at Golden Pig as similar to those in other mines where he had worked.  He confirmed that the boggers and haul trucks were services regularly. 

Graham Leonard Lindgard

1. Mr Lindgard is employed by Sons of Gwalia, the owner of Golden Pig, as mine foreman, and had been so employed for a number of years.  He has been engaged in the mining industry for about 27 years and worked on a variety of mines.  He asserted that the roads at Golden Pig were comparable with the other mines at which he had worked – perhaps better than some.  He pointed out that the mining environment was a changing environment and that the condition of the roads was changeable and the requirement for maintenance variable. 

2. In the course of his work he would drive a Toyota Land Cruiser underground on a daily basis, and he stated that he never encountered any difficulties with the road surface.  He stated that Golden Pig was one of the driest mines in Australia, there being very little ground water penetration.  He stated that he attended mine safety meetings which were conducted so as to freely elicit any complaints about mining conditions.  He was unable to recall any complaints about the seating in the boggers and trucks. 

3. He identified and produced the safety audit reports (Exhibit 2), which in general terms acknowledged the satisfactory state of the mine roads.  He agreed that the audit for February 1999 indicated that the roads were then not at the required standard. 

Liability

1. Fundamental to the issue of liability is a consideration of the manner in which the plaintiff's case has been presented, and as has already been indicated it is essentially formulated on the basis of the defendant employer's liability contractually and in negligence towards its employees.  There is also alleged a breach of statutory duty. 

2. The statement of claim relevantly provides: 

   "3.At all material times: 

   (i)The roads at the said mines were defective. 

   Particulars of Defects:

   (a)the roads were not gravelled adequately or at all;  

   (b)the roads did not have adequate drains with resultant flooding and deterioration; 

   (c)the roads were ungraded;  and

   (d)the roads were potholed, corrugated and uneven. 

   (ii)The terrain at and surrounding the said mines was defective. 

   Particulars of Defects:

   (a)there were numerous steps and pot holes in the terrain;  and

   (b)the terrain had not been, or had not been adequately or regularly, levelled by a bulldozer or excavator so as to minimise the impact to truck drivers and machinery operators who were required to travel in machines over the terrain in the course of their employment with the Defendant. 

   …

   6.(i)        Between 1 February 1998 and 23 December 1999 at and around the first mine and the second mine and in the course of his said employment with the Defendant the Plaintiff repeatedly and frequently drove haul trucks ('the trucks') and loaders (hereafter referred to as 'boggers') over the said roads and terrain in circumstances where he was subjected to repeated and frequent jolts, jerking and vibration whilst so driving. 

   (ii)In most weeks throughout the period pleaded in paragraph 6 (i) hereof the Plaintiff drove the trucks or the boggers for 5 or 6 days per week and for 6 hours or more per day except for holidays. 

   (iii)A number (T6, T9, B13, B15 and B20) of the trucks and boggers so driven by the Plaintiff were fitted with defective seats. 

   Particulars of Defects:

   (a)the suspension and shock absorbing mechanisms were seized, broken and/or collapsed; 

   (b)the adjusting mechanisms were broken and/or not functional; 

   (c)the seats had inadequate suspension and/or inadequate shock absorbing mechanisms suitable for use in mining conditions to reduce vibration transmission; 

   (d)the seating and suspension systems were not adequately or regularly maintained, repaired and/or replaced;  and

   (e)the Plaintiff's spine was thereby frequently and repetitively subjected to jolts, jerking and vibration with resultant risk of injury. 

   7.On or about the 22 October 1999 at the first mine and in the course of his employment with the Defendant: 

   (i)The Plaintiff was driving a Caterpillar Elphinstone 1500 bogger known as 'B15' ('the bogger') over roads situated in the C6 and L6 S levels at the first mine. 

   (ii)The seat in the bogger was defective. 

   Particulars of Defects:

   (a)the suspension and shock absorbing mechanism was seized, broken and/or collapsed; 

   (b)the seat had inadequate suspension and/or inadequate shock absorbing mechanisms suitable for use in mining conditions; 

   (c)the seating and suspension system was not adequately or regularly maintained, repaired and/or replaced;  and

   (d)The Plaintiff's spine was thereby frequently and repetitively subjected to jolts, jerking and vibration with resultant risk of injury. 

   (iii)The roads pleaded in paragraph 7(i) hereof were defective. 

   Particulars:

   The Plaintiff repeats and relies upon the Particulars pleaded in paragraph 3 hereof and says further that there were numerous steps in the road in the L6 S level of the first mine. 

   (iv)The Plaintiff was thereby subjected to frequent and repetitive jolting, jarring, jerking and vibration whilst so driving the bogger with resultant risk of injury." 

1. It is alleged that by reason of the matters pleaded in pars 3, 6 and 7 the plaintiff suffered:

   (a)prolapse of the L3/4 disc with associated nerve root impingement; 

   (b)damage at the L5/S1 level with associated nerve root impingement; 

   (c)tears and bulges along the spine between the L3/S1 levels; 

   (d)injury to the lumbar and thoracic spine generally. 

2. The pleading asserts that the nominated injuries were caused by the defendant's negligence, breach of statutory duty, or breach of contract of employment in that it failed to: 

   1.provide and maintain appropriate seating in the trucks and boggers. 

   2.adequately surface the roads and terrain of the mine so as to reduce vibration transmission to drivers of machinery. 

3. The plaintiff asserted generally in his evidence that from approximately mid‑1998 until the cessation of his employment with the defendant he was operating trucks and boggers on road surfaces that were rough, pot holed and not appropriately maintained, as a consequence of which he was constantly being "thrown all round" or "shot around like a bullet out of a gun" whilst operating the machine.  Part of the reason for the poor road conditions was an inadequate supply of road base for surfacing; inadequate dewatering facilities resulting in the road surface being gouged out by water; and insufficient grading. 

4. The plaintiff's evidence was that the seats in the trucks and boggers were defective and poorly maintained, and his efforts to have the matter properly addressed were ignored or frustrated.  That was aggravated by the poor road conditions. 

5. His evidence as to what occurred on 22 October 1999 was that he had been operating bogger 15 on the afternoon shift.  The roads were in poor condition, the ride was shocking, and he was being thrown about in the vehicle.  As he commenced his shift activities his back became sore, and pain increased towards the end of the shift.  By the time he arrived home his lower back was extremely painful.  He was unable to recall a specific incident giving rise to the back pain, being of the belief that he had pulled a muscle in his back. 

6. The description of symptoms given by the plaintiff to Dr Gibson was that he developed back pain at the end of a routine shift. 

7. Mr Stokes was told that the plaintiff's back pain slowly commenced in October 1999. 

8. The plaintiff told Mr Woodland that there was no particular incident but that he developed increasingly severe lumbosacral back pain during the course of a shift on 22 October 1999. 

9. Dr Harper obtained an account from the plaintiff of the development of low back pain on 23 October 1999 which came on gradually after work, following a normal day's work, increasing the following day. 

10. The account given to Mr Schaeffer was that the plaintiff's back symptoms commenced on about 23 October 1999 when he felt particularly uncomfortable driving machinery, and experienced pain in the central and right lower back area towards the end of the day. 

11. The necessary conclusion from all the evidence is that the plaintiff did not experience any back pain or other spinal symptoms prior to 22 October 1999, and was unable to identify any particular work activity on 22 October 1999 correlating with the onset of symptoms.  He was on that day operating directly or by remote B15 which appears to have had a replacement seat fitted or seats repaired on 3 September 1999. 

12. The medical evidence establishes that as at 22 October 1999 the plaintiff had a congenital spondylolisthesis of L5/S1 and degeneration at L3/4. 

13. On the basis that the plaintiff could not identify a specific incident giving rise to the development of back pain, Mr Stokes was prepared to accept that he could have suffered repetitive strain to his back in the course of his employment, but took the view that most of the plaintiff's back symptoms related to the spondylolisthesis.  His view was that it was likely that there was an incident proximate to the night of 1 January 2000 which gave rise to the acute pain then experienced. 

14. Mr Woodland, the treating surgeon, also felt that the plaintiff's back pain principally emanated from the spondylolisthesis.  He pointed out that although such a condition was not necessarily symptomatic, it did predispose to the development of back pain, and could be rendered symptomatic by a single or repetitive insults.  There being no history of significant pre‑existing back symptoms (in fact on the plaintiff's evidence none at all), Mr Woodland felt that something occurred on 22 October 1999 which caused the plaintiff's injuries.  His view was that the plaintiff suffered a disc injury at the L3/4 level and an aggravation of the L5/S1 spondylolisthesis on 22 October 1999, the former problem having largely resolved by 13 November 2000.  He speculated that rough driving conditions over a period of time prior to October 1999 might have resulted in increased wear and tear/degenerative change at both levels. 

15. Mr Schaeffer was of the view that the plaintiff had degenerative disc disease of the mid and lower lumbar spine, and the L5/S1 spondylolisthesis had played some part in destabilising the lumbar spine.  He was firm in his view that they were constitutional problems, not traumatically precipitated.  He had difficulty accepting the proposition that jolting and jarring movements whilst operating machinery would have resulting in structural injury to the lumbar spine.  He appears to have been prepared to accept that there was some temporary work related aggravation of the spinal degenerative condition and spondylolisthesis on 22 October 1999.  He referred to medical studies which demonstrated that 40 per cent of disc protrusions were not of traumatic origin, but the culmination of a spontaneous process.  Pre‑existing degeneration was, however, a prerequisite for disc herniation. 

16. The fact that the plaintiff developed symptoms on 22 October 1999 when he was remoting the bogger and necessarily getting in and out of it on many more occasions that would otherwise be the case, is consistent with Mr Schaeffer's evidence that if a prolapse has a traumatic origin it was often caused by bending, as he would have been involved in repetition bending. 

17. Dr Home was of the view that the acute disc protrusion at L3/4 probably occurred proximate to the onset of acute pain on 2 January 2000.  He observed that there was an unresolved controversy as to whether rough driving conditions contributed to the development of back pain. 

18. In Jones v Dunkel (1959) 101 CLR 298 at 304 Dixon CJ said:

    "But in any case we are not concerned with a choice among rival conjectures.  In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind.  It is true that 'you need only circumstances raising a more probable inference in favour of what is alleged'.  But 'they must do more than give rise to conflicting inferences of equal degree of probability so the choice between them is mere matter of conjecture'." 

    That statement applies to proof of causation. 

19. In Medlin v State Government Insurance Commission (1995) 182 CLR 1 their Honours Deane, Dawson, Toohey and Gaudron JJ stated at p 6:

    "For the purpose of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience." 

    That is the proper approach to be taken to resolving the issue of causation. 

20. The evidence does not establish what caused the injuries to the plaintiff's back.  Clearly he had a degenerative spinal condition and I am satisfied that something occurred on 22 October 1999 setting in train a course of events culminating in the L3/4 and L5/S1 prolapses.  It is not possible to determine on the evidence whether what occurred on 22 October 1999 was a spontaneous occurrence or the manifestation of some traumatic event.  Since the plaintiff cannot recall a specific event, the state of the evidence is such that a choice between the two is a matter of mere conjecture.  I am, however, unable on the evidence to conclude on the balance of probability that any work activity the responsibility of the defendant, can be identified as causative.  Indeed in his final submissions plaintiff's counsel resiled from attempting to attribute responsibility to a specific event occurring on 22 October 1999. 

21. The thrust of the plaintiff's evidence was that between 1 February 1998 and 23 December 1999 there were many occasions when the driver's seat of the haul truck or bogger that he was required to operate was defective, and when the road surface the vehicles were required to traverse was in a parlous condition.  The combination of the two, it is alleged, caused the plaintiff's back condition. 

22. I formed a very clear impression that the plaintiff significantly exaggerated the extent of the deficiencies in the vehicle seating, the condition of the roads, and the forces applied to his body as a result of both.  I do not accept that he complained to the defendant about either to the extent alleged by him, although I am satisfied that there would have been occasions when he addressed these issues with the defendant. 

23. The application of commonsense suggests that if the plaintiff's body had been subjected regularly to the kind of forces which he claimed, and that it was having a cumulative effect upon the integrity of his spinal column, there would have been some symptomological indication thereof before 22 October 1999. 

24. The evidence of Mr Schaeffer, which was both logical and convincing and founded upon considerable knowledge and experience suggests that WBV is unlikely to result in structural damage to the spinal column.  I accept his evidence that the most probable cause of the plaintiff's difficulties was degenerative disc disease.  His evidence was consistent with Dr Home and reconcilable with Mr Stokes and Mr Woodland. 

25. Dr Home stated that the concept that WBV could give rise to spinal injury, was at present the subject of unresolved controversy. 

26. Although I am not satisfied on the balance of probabilities that the plaintiff's back condition was caused or contributed to by the working conditions over the period alleged, it is appropriate that I comment on the evidence relating to the maintenance of the vehicles (in particular seating) and the mine roads. 

27. The plaintiff's evidence was that the vehicle seats and the road conditions were defective, and he referred to the comments contained in the various plods and safety meeting minutes, to support that proposition.  His evidence was otherwise unsupported. 

28. The evidence given by the defendant's witnesses, Stanley Joseph Gillman, Gregory Alan Gillman, Wayne Conway, John Kent Gillman, Craig Vincent McSkimming, Murray Lee Giles, Justine Vivian Leda, Brian Stephen Bosenberg and Graham Leonard Lindgard, was to the effect that: 

    (a)the roads within Golden Pig were serviceable and of an equivalent standard to those encountered at numerous other mine sites; 

    (b)the seats on the haul trucks and boggers were of a reasonable condition and adequately maintained; 

    (c)there was a lack of recollection of the plaintiff's alleged continuing complaints about vehicle seats and road conditions. 

29. I am satisfied on all of the evidence that there were occasions when one or more vehicles had defective seats, which were not promptly repaired or replaced.  Further that there were occasions when roads were below optimal standard and when there was a lack of adequate road base.  It is to be observed, however, that only a very small proportion of the plods tendered in evidence (37 out of approximately 6,000) complain about vehicle or road conditions.  The position is similar with the maintenance meeting minutes.  One would expect the position to be otherwise if the situation was as suggested by the plaintiff. 

30. The evidence establishes that underground mining is a harsh environment where road surfaces, vehicle seating and working conditions generally must of necessity be ever changing.  I am satisfied that the defendant had in place an appropriate maintenance and supervision system to respond to that environment.  Although deficiencies in the state of equipment and the condition of the roads are identified in the documentation referred to by the plaintiff, it is abundantly clear from the records generally that they were no more than would necessarily be expected and unavoidable in this particular activity. 

31. The plaintiff has failed to establish that the defendant was  in breach of the duty of care owed to him as its employee. 

Provisional assessment of damages

1. (in the event that the plaintiff had established his injuries were a consequence of a breach of duty by the defendant). 

2. The evidence is eloquent of the fact that as a consequence of a degenerative process which manifested itself on 22 October 1999 the plaintiff suffered a disc protrusion at L3/4 and at L5/S1 where there was a congenital grade 1 spondylolisthesis with pre‑existing bilateral pars defects at L5. 

3. As from 22 October 1999 the plaintiff suffered continuous pain, but it does not seem to have been vocationally incapacitating until the beginning of 2000 when it would appear some further event occurred. 

4. The plaintiff underwent an L5 lumbar laminectomy decompression and an L5/S1 posterior lateral fusion in November 2001, by which time there had been natural resorption of the extruded disc material at L3/4. 

5. Although the surgical procedure undertaken by Mr Woodland was successful in alleviating a number of the acute symptoms, the plaintiff has been left with physically incapacitating back pain, which it would appear will be permanent.  That pain requires the ingestion of analgesic medication and regular general practitioner review.  There is also the possibility of future operative intervention, although this would not seem to be probable. 

6. Because of continuing back pain the plaintiff is significantly restricted in his day to day activities, although I feel not to the extent that he claims, and it is to be expected that he will improve with adjustment over time.  Presently he is only fit for part‑time sedentary employment, although again with adjustment following the conclusion of this litigation, it is to be expected that his capacity will progress to full‑time sedentary duties. 

7. As a result of the impact of his physical disabilities the plaintiff has "an unspecified adjustment disorder" or depression which will lessen correspondingly with adjustment to his physical circumstances. 

8. I formed the impression that the plaintiff was exaggerating his physical disabilities, as he did when describing the deficiencies in his working environment. 

9. I would allow $45,000 to cover loss of amenities. 

Loss of earning capacity

1. The plaintiff who was 30 years old at the date of the incident is now 35 and has a life expectancy of 43 years. 

Past loss

1. It was the plaintiff's evidence that but for the incident he would have left the employ of the defendant and obtained work as a shift foreman.  I believe that it is realistic to suppose that he would not have obtained such a position for several years and in the result I calculate past loss as follows: 

   (i)    loss for 2 years from date of incident at

   rate for plant operator     104 weeks x $809 net =      $ 84,136.00

   (ii)   1/1/02-30/6/02 as shift foreman

   26 weeks x $1,127 net =     $ 29,302.00

   (iii)  1/7/02-30/6/03 at $1,176 net   =      $ 61,152.00

   (iv)  1/7/03-30/6/04 at $1,148 net  =      $ 59,696.00

   (v)   1/7/04-20/5/05 46 weeks at $1,148 net             =      $ 52,808.00

   Total  $287,094.00

Interest on past loss

The plaintiff received approximately $100,000 net

by way of workers' compensation so interest on

past loss is 3% of $187,094 for 280 weeks

at 3%  =      $ 30,222.87

Loss of past superannuation contributions

(i)    1/1/00‑1/1/02                2 years x $63,791 x 8% =     $ 10,206.00

(ii)   1/1/02-30/6/02               26 weeks x $1,724 x 9% =   $  4,034.00

(iii)  1/7/02-30/6/03               1 year x $94,588 x 9%    =   $  8,513.00

(iv)  1/7/03-30/6/04               1 year x $91,052 x 9%    =   $  8,194.00

(v)   1/7/04-20/5/05               46 weeks x $1,751 x 9% =   $  7,249.00

Total  $ 38,196.00

Interest on past loss of superannuation

$38,196 x 280 weeks x 3%  =   $  6,170.00

Loss of earning capacity

1. I am satisfied on the medical evidence that the plaintiff is, because of his physical state, no longer fit for work with a substantial physical component.  I did, however, form the view that he is over emphasising his disability and has not really applied his mind to his vocational future.  With the conclusion of this litigation and the consequent expected adjustment I am satisfied he could engage in 20 hours per week clerical or other sedentary activities increasing those hours to full‑time in several years. 

2. I am also satisfied on the medical evidence that, if one accepted that the plaintiff's disability was work caused, it was probably because of his degenerative spinal condition that he was unlikely to have been able to engage in heavy physical activity for the balance of his working life.  The development of incapacitating symptoms within a reasonable time was probable.  His domestic situation would also have made it unlikely that he would have remained in underground mining as his children got older. 

3. If the plaintiff worked as a shift foreman until age 60 years his future potential earnings would be: 

   $1,148 x 680                 =  $780,640.00

4. I would discount that by 50 per cent for the standard contingencies, his particular physical vulnerability which was likely to impact upon his working life, the possibility of him ceasing work in remote areas, and his retained capacity. 

5. In the result I would allow $391,000 for future loss. 

Loss of future superannuation contribution

$157.59 per week x 680 x 70% x 5       =  $ 37,506.42

Gratuitous services

1. The evidence concerning the need for and provision of past gratuitous services was vague such that it is not possible to arithmetically calculate an appropriate allowance.  The medical evidence indicates that there is no continuing requirement.  I would simply fix this head of damage at $1,500. 

Future medical and pharmaceutical expenses

1. Having regard to my assessment that the plaintiff is exaggerating the extent of his symptoms and incapacity, and the fact that he would probably get symptoms in any event, it is difficult to quantify his needs. 

2. Doing the best I can I would allow $5,000 to cover any necessary general practitioner's visits, orthopaedic reviews, and pharmaceutical requirements. 

Summary

General damages  $  45,000.00

Past loss of earnings  $287,094.00

Interest on past loss   $  30,222.87

Loss of past superannuation  $  38,196.00

Interest on past superannuation  $    6,170.00

Loss of earning capacity  $391,000.00

Loss of future superannuation  $  37,506.42

Gratuitous services  $    1,500.00

Future medical and pharmaceutical               $    5,000.00

Fox v Wood component  $  30,551.02

Agreed special damages  $    4,237.25

Total  $876,477.56

1. I have not dealt with the workers' compensation statutory allowances as they have been met by the defendant and if allowed would be refundable out of any judgment. 

2. For the reasons which I have given, however, the plaintiff's claim is dismissed.