Selman v Cyrus Gold
[1996] QSC 204
•2 August 1996
IN THE SUPREME COURT
OF QUEENSLAND
No. 251 of 1993
Brisbane
Before: Mr Justice Ambrose
[Selman v. Cyrus Gold]
BETWEEN:
ALI SELMAN
Plaintiff
AND:
CYPRUS GOLD AUSTRALIA CORPORATION
(ACN NO 000 878 302)
Defendant
REASONS FOR JUDGMENT - B W AMBROSE J.
Judgment delivered 02/08/1996
CATCHWORDS: NEGLIGENCE - personal injuries - breach of statutory duty - Metalliferous Mining Regulations 7.1.1(a) and 7.4.1(e) - foot injured when working with truck in mine -contributory negligence.
Counsel:Mr W. Campbell for the plaintiff
Mr M. O'Sullivan for the defendant
Solicitors:Ebsworth & Ebsworth for the plaintiff
Corrs Chambers Westgarth for the defendant
Hearing Date: 12-13 October 1995, 22 April 1996 and 13 May 1996.
IN THE SUPREME COURT
OF QUEENSLAND
No. 251 of 1993
Brisbane
Before: Mr Justice Ambrose
[Selman v. Cyrus Gold]
BETWEEN:
ALI SELMAN
Plaintiff
AND:
CYPRUS GOLD AUSTRALIA CORPORATION
(ACN NO 000 878 302)
Defendant
REASONS FOR JUDGMENT - B W AMBROSE J.
Judgment delivered 02/08/1996
In 1990 the plaintiff was employed by the defendant as an underground miner at Selwyn mine near Cloncurry in north-west Queensland; he had been trained as an underground miner in Yugoslavia. He had worked in that country and had migrated to Australia where he continued to work in that occupation at various mines over a period of about 4 years before he was injured on 28 February 1990.
At the time of his injury he had been working at the defendant's mine for about three months.
From time to time working underground he was required to drive a vehicle known as a Wagner truck, the function of which was to convey ore mined underground to the surface where it was unloaded for treatment.
The defendant's mine worked on a rostered system. Underground miners worked a roster system of 14 twelve hour days on and 7 days off. Because the mine was located in an inaccessible region this system was preferred to other shift work systems.
On the day of his injury the plaintiff was working day shift on the last day of his 14 day rostered work shift. The accident occurred about 2 p.m. He had apparently had a lunch break an hour or two earlier. His shift was to finish at 7 p.m. that night. The truck he was driving carried a load of about 35 tons. It was diesel powered and the plaintiff sat in a cabin from which he controlled a steering wheel, accelerator and brake. Both accelerator and brake were near the floor of the cabin. The right foot was used for the accelerator and the left foot for the foot brake. There was also a hand brake that could be applied.
It took about 20 minutes to drive from the ore discharge level on the surface to the ore loading level below ground. Once the loading area had been reached it took about 10 minutes for the truck to be loaded. It was the practice for persons driving the trucks to leave the truck while it was being loaded because of eye irritants released in the course of loading. They normally stood perhaps 10 metres away from the truck as it was being loaded. They were supposed to use this time to "bar down" any loose rocks they might see on the roof and walls of that particular part of the mine.
Once the truck was fully loaded the driver climbed into it and started for the surface. It took about 30 minutes to drive from the loading area to the unloading area on the surface. Speaking generally he would make 11 trips per shift and would have a 10 minute break away from the truck during each trip. As well he had a lunch break and morning and afternoon tea breaks each day which together lasted about 1 hour.
After leaving the loading area where his truck was loaded that day it was necessary for the plaintiff to ascend a slightly steeper incline than normal within fifty metres of the loading area. To ascend this sharper part of the incline it was necessary to use the accelerator a little more forcefully than it was on other parts. It is clear that the plaintiff at the time in question, his truck having been loaded, commenced to drive it to the surface, and when proceeding up the incline and approaching a curve to the left in the tunnel leading to the surface his left foot was crushed between a stanchion supporting the top of the cabin of the truck at its front and the wall of the tunnel. His foot seems to have been crushed against the wall about 5 feet 6 inches above the floor of the tunnel.
After the foot was crushed the truck which the plaintiff was driving moved backwards for a distance of about 6.5 metres until the rear left hand side of it in the direction in which the plaintiff sat driving came to rest against the tunnel wall. The side of the truck resting against the wall was at something of an angle to it, the front being some distance removed from the wall. The plaintiff left the truck and made his way a little further up the incline to the corner that he was approaching at the time he suffered his injury where he signalled for help from persons a little distance around the corner.
The plaintiff was taken to hospital where part of his foot was amputated.
He has been left with a significant disability which will have an effect on his earning capacity, not merely in the mining industry but at any other occupation for that matter.
The plaintiff is married and resides in Melbourne. He has some difficulty with the English language.
At the time of his injury he suffered from a degenerative spinal condition which he asserts was symptomless before his injury but which has since added to his incapacity.
The only evidence as to just how the plaintiff suffered his injury is that which he has given himself. To the extent that he alleges negligence against the defendant I am unpersuaded that he has discharged the onus upon him except to the extent that he has established a breach of statutory duty as a particular of negligence.
For reasons upon which I will elaborate shortly, I find the plaintiff not to be a credible witness. I am really unprepared to rely upon evidence which he gives except to the extent that it is supported by independent evidence. He said in the course of his trial that he gave a false account initially not merely to the Workers' Compensation Department but to doctors treating him for his injury as to the events leading to it. I find the explanation for giving such a false account unpersuasive. On the other hand it is contended that had there not been a breach of statutory duty on the part of the defendant, the plaintiff could not have got his left foot out of the cabin of the truck that he was driving down the tunnel and could not therefore have had it crushed between the truck and the wall.
The problem that I have in assessing the evidence of the plaintiff is that quite apart from the false account he gave and repeated over some years as to the events which led to his injury - assuming it was a false account - I was quite unimpressed with the evidence he gave as to the effect of his injury on his ability to walk, to sit etc. He walked, sat and moved with greatly exaggerated difficulty when in court. A video taken of him walking and getting out of a car in Melbourne only a week or two before he first gave evidence in the case demonstrated that he had nothing like the incapacity that he pretended to have in court.
In cross-examination, the plaintiff admitted that he had given a false account to the Workers' Compensation Department and consistently repeated that false account to doctors treating him for his injury because he thought that if he gave the version of events which he swore to in court he might not recover workers' compensation. If he maintained his earlier version of course he could not establish negligence.
It is convenient to deal first with the account he gave shortly after his injury. Four days after the injury when he was in hospital he signed an application for workers' compensation asserting that he had stopped his truck near the scene of his injury to remove wires hanging from the ceiling of the drive, that the truck he was standing on moved, he slipped and his foot was trapped. He signed a statement to the same effect shortly afterwards.
On 8 May 1990 his solicitors wrote a letter consistent in its terms with the account that the plaintiff first gave.
The plaintiff admitted that what he had said was untrue and that he did give his solicitors his current version of events until 1993.
The plaintiff gave the same or a similar account of his injury to Drs Fogarty and Ansari who were treating him in 1991 and 1992. He told Dr Ansari that "he had stopped a truck to recover some oars, when the truck moved the patient slipped and trapped his left foot beneath it".
He said that he had really been persuaded to give a false account of his injury by a friend of his who had visited him in hospital on 2 March 1990 - a couple of days after the injury.
The problem with the explanation which the plaintiff gave in evidence is that the version of events which he now acknowledges to be false was rumoured at the mine within a few hours of his injury and a day or so before he now asserts that he was persuaded by his friend to tell the lie. In fact to investigate this rumour safety officers of the defendant carefully examined the site of the plaintiff's injury and found that there was no wire anywhere near the area that he could have reached, even had it been hanging from the roof. There was in fact no wire hanging from the roof. The mine officers were not able to say from whom they had heard this rumour - just that it was "second hand". They examined the scene of the accident for any other indication of what the plaintiff may have been doing when injured without finding one.
For the defendant it is contended that the obvious source of the rumour was the plaintiff himself who for one reason or another had asserted this to be the explanation for his injury. It would certainly be open to infer that the rumour had been started by something the plaintiff said. However that is not the only available inference. It may have been simply a rumour started without any rational basis by some fellow miner working in and around the mine at that time. If there was a discussion between the plaintiff in hospital and a friend who suggested this rumour to him, I suppose one could equally infer that his friend had heard of this rumour that started to spread in the mine within perhaps half a day of the plaintiff's injury and had related it to the plaintiff who, according to him, explained to his friend that he had really fallen asleep and injured himself. His case is that it was thought by him and his friend that he would be in a stronger position to claim workers' compensation if he asserted that he was doing something while awake rather than after he had dozed off to sleep.
In his evidence in chief the plaintiff said that he was very tired as he approached the end of his 14 day shift. He said that there was a lot of dust and fumes in the air where the vehicle had been loaded and where he was driving. He said that he had adjusted the seat on the truck so that it was up high. He said his legs used to become tired; sometimes he used to stretch his left leg because it used to get stiff and numb from sitting because he sat in the one position "all the time". He said he used sometimes place his left leg on the side of the truck because he could stretch it a little bit and relax it there; he said he had never been told anything about not putting his left leg on the side of the truck and that his only visibility came from a light on his truck and headlamp he was wearing. He said he could not say exactly how far from where he had collected his load of ore he crushed his foot.
The evidence however of Mr Macleod-Carey, which I accept makes it clear that it was a relatively short distance - within 50 to 60 metres - and within about one minutes driving time from the point of loading.
He said that his eyes were burning from fumes and dust which used make him dizzy and give him headaches all the time. He said he remembered that he had just operated a signal to indicate that he was driving up the tunnel and continuing on:"I don't know what's happened after - just I remember when I woke up my foot was crushing on the side of the wall inside of the truck. I woke up from because I been hurt but I don't know how many metre I been sleep or how many seconds - 5 seconds or more than that I can't tell you, you know. I don't know how many metre around my truck been going and after been going to the left."
He said that when he woke up he put the vehicle in neutral or reverse gear and it started to move backwards. He said it moved backwards perhaps 10 metres or less and came to a stop. he got off the truck with some difficulty, dragged himself up to the next corner and signalled for assistance. He said that he had fallen to the left side of the vehicle from its door.
In cross-examination he agreed that at material times he was an associate of the Institute of Engineers Australia and a graduate of the Society of Engineering Associates. He said he obtained those qualification after the accident but on the basis of the experience, qualifications etc that he had at the time of the accident.
He agreed that he had been driving the vehicle for some months and had not had any difficulty doing so. He received instructions from people at the Selwyn Mine as to how the vehicle was to be driven.
The plaintiff said that he had never been advised to make sure that he kept his limbs within the cabin of the vehicle as he was driving it. There is a wealth of evidence that it was the practice to advise all persons when they were being trained to use the vehicle that this was a required work practice. It is clear that if persons were seen driving the vehicles with any part of their limbs outside the protection of the cabin they would be warned and if they continued to do so they would be dismissed.
I do not accept the evidence of the plaintiff that he had not been warned to keep his limbs inside the vehicle as he was driving it through the tunnel. In my view he gave that evidence simply to support one of the particulars of negligence alleged against the defendant which was that there had been a failure to give him proper instructions in using the vehicle. In any event, it became absolutely clear in the course of the plaintiff's evidence that at time of injury he was well aware how foolish it would be to put himself in danger by driving an ore carrying vehicle through relatively narrow tunnels with any part of his body outside the confines of the cabin of the vehicle. The likely consequence of any part of his body coming into contact with the walls of the tunnel as the vehicle moved through it would be very serious injury. It is clear that the only occasion upon which persons driving the vehicles were permitted to put their hands outside them was when they came to a halt to give a signal by extending their arm from the cabin of the vehicle and pulling a cord to give the appropriate signal to other users of the tunnel. He had in fact given such a signal within a minute prior to his injury. At that stage the vehicle would be stationary and it was not suggested that there would be any danger at all of accidental contact between the moving ore truck and any part of the body of the operator giving that signal.
I am persuaded that in all probability the plaintiff was advised of this danger when he received induction safety training when first employed and also when he was instructed how to drive the vehicle by one of the company supervisors. It is also probable that he was so informed on more than one occasion in general safety meetings which he was compelled to attend as an employee of the mine.
In any event it is clear from the evidence that about 12 months before the plaintiff was injured, another miner driving such a vehicle had suffered a foot injury when his left foot was outside the confines of the cabin and this had inspired the defendant's supervisors and safety officers to keep to the forefront of their safety lectures the dangers involved in adopting this course of behaviour. Moreover, subsequent to the first accident, a solid steel plate had been welded around the cabin walls, about 150 mm above the top of them to prevent people from putting their feet out. The plate is most discernible in photo 4 on Ex. 18 and marked "1". It is also shown clearly in Exs. 18A, 25 and 27, which are photographs of the truck as it was at the time of the plaintiff's injury. Subsequently the perforated plate shown in Ex. 18 was added. There was clearly a sufficient gap between the end of the plate and the stanchion for a person sitting on the driver's seat to put at least the toe of his boot through it, although one would wonder how he could do so or why while sitting depressing the accelerator with his right foot: vide Ex. 27. That guard would not prevent a driver from consciously circumventing that safety device and deliberately putting his foot out.
The plaintiff said that at the time of his injury he was asleep. Doing the best I can to analyse his evidence I think that the effect if it is he did fall asleep but before doing so must have rested his foot on or near the top of the cabin side wall of the vehicle but inside it, as indicated in exs. 25 and 27, and in some fashion thereafter - perhaps as a consequence of the truck coming into contact with the wall - his foot must have slid from inside the cabin side wall to a position between a stanchion holding the cabin roof and the wall of the tunnel with which that stanchion then came into contact. He denied in fact that he put his foot outside the cabin. Indeed at one stage he indicated he had had his foot resting on a foot rest well below the top of the cabin side wall. Later he said that the foot rest in the cabin he found to be too low to allow him to stretch his foot. The photographs indicate that the event hypothesised by the plaintiff could have occurred and indeed the plaintiff suggested that it did when he indicated on Ex. 25 where he may have rested his foot.
He agreed that a driver should not put his foot outside the cabin when driving his truck but said that because he was asleep he just did not know where his foot was when the vehicle he was driving crushed it against the wall. He agreed that it would have been dangerous if he had had his foot outside the vehicle. It is clear that his experience and knowledge of mining procedures was sufficient to prevent him from asserting that he did not know it was dangerous.
He agreed that when he last remembered driving he was sitting on the seat of the vehicle with his right foot pressing down the accelerator on the floor. It seems that the seat on which he was sitting was certainly not higher than the height of the cabin wall which he estimated to be about 80 centimetres. It was probably a bit lower.
If the plaintiff did have his left foot resting on the inside of the cabin side wall where he indicated on Ex. 25, it must have been extraordinarily uncomfortable for him. The explanation he offered for having done this I find most unpersuasive. Moreover I find it improbable that he would have dozed off to sleep while driving this heavily laden ore truck up an incline that required him to use the accelerator more forcefully than was required on other occasions. He was required to positively press down on the accelerator with his right foot near floor level while sitting on the seat adjusted to somewhere in the vicinity of 70 to 80 centimetres above floor level. If his left leg then extended up even higher so that it might rest on the top of the plate 150 mm above the top of the cabin side wall, Ex. 27 suggests his foot might then have been at shoulder level or thereabouts as he sat on the driver's seat.
The probability is that until only a minute or two before the injury the plaintiff had been standing around for 10 minutes waiting for ore body to be loaded onto his truck. He had proceeded only 50 to 60 metres from the location where the truck was loaded. On the evidence of Mr Macleod-Carey, I am persuaded that he had probably only been driving the truck for a minute or thereabouts. I gained the impression that the plaintiff in giving evidence when Ex. 25 was tendered was merely trying to take advantage of one of the positions taken in the attempted re-enactment by the defendant's miners shortly after the plaintiff's injury in an endeavour to explain how he may have injured himself.
I am satisfied on the evidence of Mr Austin, Mr Dennis and Mr Macleod-Carey that there was in fact no dust noticeable in the area of the accident. I am satisfied that there were no diesel fumes or other eye irritants noticeable at any material time in this area either before or immediately after the plaintiff was injured.
Although for the reasons I have given I think he was probably awake, I am quite unpersuaded as to what the plaintiff was doing immediately prior to his injury, or as to precisely what actions on his part or lack of action led to the end of his left foot being crushed between the outside of the stanchion supporting the cabin canopy on the truck and the rock wall. The plaintiff has failed to persuade me on the balance of probabilities just what he was doing prior to his injury which led to its occurrence.
However, at the trial leave was granted to the plaintiff to amend his statement of claim to allege breach of statutory duty on the part of the defendant. The breach is alleged to be of Regulations 7.1.1(a) and 7.4.1(e) of the Metalliferous Mining Regulations of 1985.
Looking at the whole of the evidence, I am persuaded that on the balance of probabilities the major part of the plaintiff's body was within the confines of the cabin of the ore truck at the time he suffered his injury.
Although he clearly admitted and asserted for years that he had been standing on the engine or some part of the top of the vehicle trying to adjust cables hanging from the roof of the tunnel, I am unpersuaded upon the whole of the evidence that this is sufficiently reliable to support a finding that that was the fact. The rumour, however it started, that this was the explanation for the accident was promptly investigated by the defendant's officers at the mine and there was absolutely nothing found to support the likelihood or even possibility of it being a correct explanation. The only electric cables that were anywhere near the scene of the accident were in fact 2 inches in diameter. Moreover they were on the opposite side of the tunnel from that which bore evidence of the plaintiff's foot being crushed and in any event apparently could not even have been reached standing on the vehicle.
I suppose there is a possibility that he was out standing on the vehicle for some other reason and may have slipped as the vehicle ran away from him. There is a handle on the top of the canopy over the truck which suggests people may sometimes have stood on or near the top of the engine or canopy. I refer to Exs. 18A and 27. The problem with this explanation is that there is nothing to suggest that the handbrake on the vehicle, which I assume would have been applied, was defective. It is far from clear to me how the vehicle could have slipped away as he was standing on it leading to his injury. Although only hearsay, evidence was nevertheless adduced without objection to the effect that when the vehicle was examined immediately after the plaintiff's injury it was found that the handbrake was on. The vehicle was carefully examined after the accident and had there been any suggestion that there was a defective handbrake I cannot believe that it would not have been investigated permitting evidence to be led on that question. In any event blood found inside the cabin near the top of the front wall suggests the plaintiff was inside the cabin after injury.
I therefore treat the accounts given and persisted in for some years as to the events leading to the plaintiff's injury which he now says were false as simply reflecting on his credit. My perception of his performance as a witness simply confirms my conclusion that he is really prepared to say whatever he thinks might most support his claim for damages.
However, if one rejects the version of events that he gave initially and which he has since said was false, it seems to me that whatever he was doing prior to his injury, he was probably doing it from within the confines of the cabin, and it was possible for him wilfully to get his foot into a position where it was crushed leaving evidence of that crushing on both the tunnel wall and the outside edge of the round stanchion supporting the roof of the cabin on the front and left hand side of the driver of the truck in control of it.
Somehow therefore the plaintiff did manage to get his left foot into a position where it could be crushed between that stanchion and the tunnel wall. I find that he is probably well aware of just what events led to it being in that position and I suspect his assertion that he was asleep at the time is probably not true but is simply offered to avoid the necessity of admitting precisely what he was doing immediately prior to injury to his foot. With his right foot he was certainly pushing down the accelerator near the floor; he was probably holding onto the steering wheel. He must have been doing both those things to get the vehicle up the incline of the drive to which I have already referred.
Whatever the plaintiff was doing immediately prior to his injury, I find on the balance of probabilities that he was doing it as the ore truck was proceeding up hill from where it had just been loaded. He was pressing down the accelerator of that vehicle with his right foot and was within the cabin. He was probably sitting on the seat so that he could accelerate with his right foot. The plain fact of the matter is that while the plaintiff was in a position in control of the truck as it climbed the incline approaching a corner to his left, the cabin was insufficiently fenced or guarded to prevent his left foot from being put outside whether deliberately or carelessly and in my view this insufficient fencing on the part of the defendant amounts to a breach of statutory duty.
In this respect I refer to Forrest v. John Mills Himself Pty Ltd (1969) 121 CLR 149 where it was held that the obligation imposed by s.21 2(a) of the Inspection of Machinery Act 1951-1966 (Q) was absolute unless the machinery involved was as safe to a person working upon it as if it had been securely fenced. It followed under that legislation that a fence was not secure unless it excluded persons other than those who were willing to defy its restricting presence and either surmount it or penetrate it. The view was expressed in that case that obstructions past which a person might squeeze at some danger to himself were not the equivalent of a secure fence. I will turn now to the regulations upon which the plaintiff relies to establish breach of statutory duties - Regulations 7.1.1(a) and 7.4.1(e) which provide:
"7.1.1All machinery used or to be used in, on or about a mine -
(a)shall be suitably designed for safety in the use made or to be made of it;
...
7.4.1A vehicle used in, on or about a mine -
(e)shall, unless directed or allowed otherwise, be fitted with a protective cab, metal frame or approved protection device so as to afford protection to the operator in the event of a collision with the roof or walls of an underground roadway or another vehicle or in the event of rolling over; and".
It is clear in my view that it was the intention of the Legislature in passing these regulations to impose a strict duty upon mine owners to safeguard the cabin of trucks of the sort that the plaintiff was driving when he was injured by in effect preventing the operators from extending any part of their body outside the cabin of the truck as it proceeds through a tunnel whether that extension is voluntary or involuntary and whether or not negligent or even grossly negligent. The only constraint is that to which reference was made in John Mills Himself Pty Ltd, supra. They are not obliged to provide a protection for persons who defy its restricting presence and either surmount or penetrate it. Although the construction of the entrance to the cabin would not seem to meet the requirements of Regulation 7.4.1(e) it has not been contended that the doorway aperture had anything to do with the plaintiff's injury. The gap of a couple of centimetres between the safety guard plate and the stanchion fails to meet the obligation imposed by that regulation.
On my view of the evidence I am unpersuaded that the plaintiff went to sleep immediately prior to his injury. On the contrary I find that he was probably awake. I am also unpersuaded that he only had his foot resting on the inside edge of the 80 centimetre high wall or on the guard plate the top of which was 150 mm above that wall so that in some fashion without volition on his part it moved from there to the outside of the stanchion so that it might be crushed against the wall.
Only a minute or two before the event the plaintiff had probably been standing around for 10 minutes while the loading of his truck was completed. It had just been necessary for him to accelerate more than normal to get the vehicle up the steeper than normal incline just prior to his injury occurring.
Whatever the plaintiff was doing that led to his injury I am satisfied that it was a voluntary act on his part which in the light of his experience and knowledge must have been grossly negligent and I reject the contention made on his behalf that working conditions at the material time were such as to distract him in any way or lead to drowsiness or to mere inadvertence. He should have been well rested and not at all stiff having spent 10 minutes standing around and waiting for his vehicle to be loaded only a minute or so before his injury. In my view it is quite improbable in those circumstances that he would have fallen asleep. The events and his actions immediately preceding the injury remain unexplained to my satisfaction. I am satisfied however that he was in all probability awake and I cannot believe having regard to what must have been the location of his foot when it was crushed between the stanchion on the truck and the wall of the tunnel that he did not voluntarily and deliberately get his foot into the position where it was injured. He certainly was negligent in driving the truck into the wall. The tunnel was between 4 and 5 metres in width. The width of the truck was 3 metres. Therefore if the vehicle had been driven with care it would have had between .5 metre and 1 metre clearance between the left hand side of it as it proceeded uphill, and the tunnel wall. The plaintiff was well experienced in driving this vehicle which travelled more slowly than at walking pace.
The onus of course is on the defendant to prove contributory negligence. I am persuaded to infer that whatever happened - and the plaintiff has in my view declined deliberately to state what happened immediately prior to his injury - must have involved a voluntary act on his part performed in complete disregard of the obvious danger to him that would arise if he had his foot in the position where it must have been when he drove the ore truck into the side wall of the tunnel. Even had he gone to sleep with his foot perched on the top of the cabin wall, it seems to me that placing his foot in that position would have been a gross failure to take care of himself. However I am unpersuaded as I have indicated that he did fall asleep. I take the view that he has simply declined to explain honestly what he was doing when he suffered his injury. Doing the best I can on the findings that I have made I find that the plaintiff is guilty of contributory negligence leading to his injury. I apportion responsibility between the plaintiff and the defendant to be 60% to the plaintiff and 40% to the defendant.
I turn now to assess the quantum of the plaintiff's damages.
I find this task as difficult as the determination of the question of liability. The difficulty arises from the distinct impression I gained as the plaintiff gave evidence particularly viewed in light of the video taken of his walking in Melbourne shortly before the trial commenced that he was deliberately and grossly exaggerating the extent of his incapacity when he gave evidence. Not merely was his manner of walking, sitting, moving while sitting etc in court grossly exaggerated, it was exaggerated consciously with the object of persuading me to accept the case advanced for him that he would be incapable of engaging in any useful income earning activity in the future and would also experience the need reflected in a large sum of money to be calculated on a Griffiths v. Kerkemeyer basis.
A problem in assessment of damages arises from the significant variation in medical opinion between doctors who have treated him in Melbourne and those who have examined him in Brisbane.
The plain fact is that the plaintiff suffered a very serious injury to his left foot which has left him with a loss of useful function in the left leg of about 40%. That loss of function for all practical purposes will prevent him from working in a mining activity which is the only activity for which he has been trained.
His leg injury is exacerbated by the development of symptoms in the region of his lower spine. He says that he had no back pain prior to his mine injury and there is no evidence to contradict that. The medical evidence is that he had a degenerative condition of his spine at the material time which had it not been for that mine injury - however it was sustained - may not have produced symptoms.
It is clear that he complained of pain in his back within a few days of his injury while receiving treatment for his foot in the Mt Isa Hospital.
I proceed on the basis that the plaintiff did have a degenerative spinal condition in the lumbar region which was such as to produce symptoms if his body was subjected to a trauma of the sort he suffered when injured in February 1990. Whether that trauma occurred as the result of pressure applied to his spine when his foot was injured when it was crushed between the truck he was driving and the wall with which it came into contact or as he asserts when he fell as he was climbing out of the truck after he had reversed it back up against the wall some little distance down the slope from where it had collided with that wall, I find it unnecessary to determine. The plaintiff asserts that he fell as he was climbing from the cabin of the truck and this may well have been the case. I am not persuaded of the reliability of the plaintiff's version of events after his injury any more than I am of his version of events leading to it. However I am prepared to accept that however the injury was caused the probability is that he was in the cabin of the truck when his foot was crushed. It is clear on the evidence that after the truck was brought to a halt so that the rear left hand side of it was resting against the tunnel wall while the front of it was at an angle to that wall, he left the cabin of the truck and made his way some distance up the incline to the corner where he attracted attention. I find that he probably left the cabin of the truck through its door on the left hand side in the direction in which it was facing. He must therefore have climbed or fallen from the floor of the cabin to the ground between the stationary truck and the wall. From the diagram of the truck (Ex. 19) it appears that the floor of the cabin of the truck was about .9 m above ground level. There is a step .25 m below floor level. Therefore from the top of the step to the ground is about .65 m.
As the result of his injury the plaintiff must have been shocked and it would be understandable if he fell in his injured condition as he climbed from the floor of the truck to the ground. The only difficulty I have with the plaintiff's version of events is that on the whole of the evidence there would not seem to have been a great distance between the edge of the cabin of the truck and the wall that he had parked the rear of his vehicle against. Although undoubtedly there would have been enough room to climb down from the truck one would have thought the proximity of the wall would have been such as to prevent him falling forwards. On the other hand in his seriously injured condition he may well have fallen in some way or twisted himself.
On the balance of probabilities therefore I find that after the plaintiff had crushed his foot force of some kind was applied to the area of his lumbar spine either in the crushing or subsequently when in an injured condition he tried to leave the truck to get assistance. That force I find on the balance of probabilities was sufficient to produce symptoms in his degenerative lumbar spine which prior to that event had been asymptomatic.
The medical evidence, which I accept, suggests that as a result of his spinal injury the plaintiff can no longer lift heavy weights and may very well suffer symptoms if he does much bending or stooping. On the other hand he can still do about 90% of the things he could have done had his degenerative lumbar spinal condition remained asymptomatic.
In assessing damages for the total incapacity therefore I proceed on the basis that the breach of statutory duty on the part of the defendant resulted in a 40% loss of capacity in the plaintiff's left leg and about 10% loss of capacity in his spinal processes in the lumbar region.
There was no suggestion that the plaintiff had any condition of his left leg which would have produced incapacity in the future. On the other hand he did have a spinal condition which in my view might very well have produced an incapacity to such an extent as to prevent him from earning at the rate that he was capable of maintaining at time of injury.
The plaintiff was skilled in several different sorts of mining activity. Not all of those activities would have been as easy on his spine as sitting in a truck all day driving loads of ore from underground to the surface. Some mining activities would have placed significant stress and strain on him and I think the likelihood is that because of his degenerative lumbar spinal processes he would in any event, quite apart from the injury on the day in question have eventually been subjected to such a stress or strain as to produce the symptoms of which he complains in this case. To the extent that the plaintiff's version of events is correct in that he noticed the soreness to his spine when he fell when he was removing himself from the stationary truck, it would seem to me that he probably would not have fallen very far and therefore the force applied to his degenerative spinal processes would have been at a level which may very well have applied when he was engaging in his daily mining activities.
I proceed to assess his damages therefore on the basis that had it not been for the injury he suffered on the day in question he would probably have been able to continue to earn at the rate at which he was then earning, or at least doing the work he was then capable of doing, for a period of 10 years. He was 30 years of age at the time of his injury. He had worked at various mining sites around Australia for a period of four years prior to that time.
I assess damages on the basis that he would have had the capacity to continue to do work of the sort that he was capable of doing at the time of his injury until he was about 40 - i.e. for a period of 10 years after the accident. I proceed on the basis that he would then have lost his capacity to do very demanding work due to his back condition but that he would then have retained the capacity to engage in other mining activities which a 10% loss of function of spinal processes would not have impeded. Over that period of 10 years of course he would have gained more experience in mining activities and presumably would have developed a greater skill in the use of the English language. In approaching assessment of damages in this way I am comforted by the views expressed by Mr Lawson that when persons have earned enough money to acquire some assets etc they sometimes prefer not to undergo the rigours and separation from family life which mining of the kind which the plaintiff performed at time of his accident imposes.
The evidence is not very satisfactory as to the rate at which a supervisor might earn compared with the rates payable to miners. In deciding what the weekly earning capacity of persons in the mining industry is it is necessary of course not to regard merely the payment that they receive while they are earning. For reasons given by Mr Lawson the functions which previously provided high rates of earning to miners are now often fulfilled by technologically advanced mechanical means. Indeed in some mines fully automated trucks have made employment of persons doing the work that the plaintiff was doing when injured unnecessary. While it is true that many smaller mines and particularly gold mines will in all probability still need miners to do work of the sort that the plaintiff was skilled in doing, nevertheless as the bigger mines replace the need for such people there will be a bigger demand for employment in smaller mines which I presume will result in miners perhaps needing to spend more time finding available mining jobs than has been the case to date.
Taking all these matters into consideration, I propose therefore to reduce both past loss of income and future loss of earning capacity as a miner to allow for contingencies which include the possibility of injury from other events (apart from his degenerative back condition becoming symptomatic) and also the unavailability from time to time of work of the sort which the plaintiff had and would have had the capacity to perform apart of the injury he suffered in February 1990.
With respect to his pre-trial loss of earnings, I propose to make an allowance of 5% for contingencies, ignoring for this purpose the likelihood that eventually mining activities would have produced the back incapacity from which the plaintiff now suffers; I have taken that into account in allowing him a 10 years earning capacity without the development of those symptoms.
With respect to future loss of earning capacity, I make a similar allowance from date of trial for a period of 3.4 years - to the date of the plaintiff's 40th birthday.
With respect to loss of earning capacity after his 40th birthday, it seems to me it would have become more difficult in any event for the plaintiff to compete on the market for the sorts of jobs that he would then be able to perform with his bad back. He had a good work history however and it seems likely that there would be smaller mines available which may have been prepared to employ him for various mining related activities - particularly in a supervisory and advisory capacity - which may have been within his capacity even with his deteriorated back condition. His back condition does not seem to have deteriorated much over the last few years on the medial evidence.
A very difficult matter to evaluate in this case is the extent to which the pain of which the plaintiff complains is psychogenically based as distinct from being deliberately exaggerated. Although I am satisfied that there is some deliberate exaggeration I feel that it is quite likely that there is a significant psychological inability of the plaintiff to accept the injury that he has suffered and to do his best to get on with his life with the not insignificant physical capacity he has left. On the material and particularly having regard to the report of Dr Mulholland, the plaintiff has had significant family problems. His first marriage failed after his injury and his wife returned to Yugoslavia with the children of that marriage and a divorce ensued. The plaintiff has remarried but for reasons elaborated in the medical reports that marriage was also subjected to stresses - indeed one of the doctors has suggested that it might be saved by a significant award of damages to the plaintiff.
There seems to be an element of litigation neurosis. Indeed for some years the plaintiff has confided to doctors in Melbourne that he fears that he will not be believed when he gives evidence and this has had a debilitating effect on him psychologically. He has taken a very large amount of drugs. Indeed the medical evidence suggests that he is taking too many drugs. The hope is that when the litigation concludes and he settles down with whatever award of damages he recovers he may improve psychologically and may not need to take the amount of drugs that he presently takes.
I proceed on the basis therefore that had it not been for his injury the plaintiff would probably have worked in the mining industry between the ages of say 40 and 65 when work was available to him and in that period would have found employment in smaller less mechanised mines relying upon his skill and experience in mining over the previous 10 years. However over the period of 25 years until he reached 65, I take the view that he would have found more difficulty keeping full time employment. During that period of time the likelihood is that his back condition would deteriorate as he got older and subjected his back to the stresses and strains which from time to time would occur when working in connection with mining activities. Doing the best I can I would reduce the loss of earning capacity for that 25 year period postponed for 3.4 years by 20% when assessing this aspect of his loss.
Taking the plaintiff in his present condition it is the view of several of the doctors that he has not in fact been deprived entirely of his earning capacity. Both Drs Mulholland and Morgan take the view that his orthopaedic injuries are not such as to deprive him of the ability to do all work. I find that probably he is able to do many of the things that he asserts he is unable to do. I reject the evidence of Miss Stevenson as to what is reasonably required for the plaintiff's future assistance. In my view although perhaps with some difficulty the plaintiff is probably able to mow his own lawn, at least at the moment. No doubt when he was learning to live with the severe injury to his left foot there were a few years when it was reasonable for him to employ others to do this task for him. On the medical evidence I am unpersuaded that he is unable to do it for himself now. Indeed it would probably be to his advantage if he did something useful instead of relying upon others to the extent that he says he does for assistance.
One of the problems of course which the plaintiff has to face is his less than perfect grasp of the English language. He gave evidence and I thought that he was able to understand questions that were asked of him. I also took the view that he was able to communicate in English. He was able to give evidence with some difficulty. All that being said however his reduced capacity to use the English language is undoubtedly a restriction on his obtaining a job as a gate keeper, taxi driver or ambulance driver (a job that he had in Melbourne apparently for some time before his attitude towards patients and hospital staff led to his finishing that work) and will undoubtedly provide some difficulties for him in the future. On the whole of the material I am persuaded that if the plaintiff wants to work and applies himself he will be able to work in the future. That is certainly the view of doctors who have examined him. Many of his psychological problems will probably diminish if not entirely clear up when this litigation is concluded. On the other hand the plaintiff obviously has suffered a very significant injury which has had a bad effect on him and it may well be the case that he will require counselling and some reduced drug therapy in the future.
I am quite unpersuaded that the plaintiff will require the drug therapy and the Griffiths v. Kerkemeyer assistance claimed.
With respect to his pain suffering and loss of amenities of life, I assess the sum of $75,000. I apportion that sum as to $45,000 pre-trial and $30,000 post-trial.
I assess interest on the pre-trial loss of amenities at 2% per annum for a period of 6.6 years which is $5,850.
With respect to the plaintiff's pre-trial loss of income, I am unpersuaded that he would in fact have stayed with his same employer from date of injury to date of trial. I am equally unpersuaded that had he shifted from one mining venture to another he would have remained in employment for 52 weeks per year. There would have been the incurring of expenses in travelling from one mining venture to another. Undoubtedly however on the material, while actually working in a mine had he obtained a job, he would have been as well paid as in the one he had with the defendant.
Having regard to the evidence relating to rates of pay over that whole period and to the calculations prepared on the schedule of past economic loss the plaintiff has tendered to support his arguments, I have selected an average net weekly loss over the whole period making a 5% discount for contingencies in the sum of $866.
Between date of injury on 28 February 1990 and date of judgment on 2 August 1996, a period of 342 weeks, I assess loss of income at $866 per week, (being the weekly loss of $911 discounted by 5%) in the sum of $296,172.
With respect to future loss of earning capacity until age 40, I fix that period as 2 August 1996 to 28 February 2000 being a period of 178 weeks. I adopt an earning capacity during that period (from 2/8/96 to 26/2/2000) of $999 which I reduce by 5% to $949.
With respect to future loss of income between ages 40 and 65, I proceed on the basis that had it not been for his injury the plaintiff would have suffered a reduction in his earning capacity in any event when he was obliged to rely upon his experience etc and obtain a supervisory job in the mining industry rather than continue on with the heavy work required of an underground miner. The evidence as I have indicated is not clear on the extent of the reduction of income and I proceed on the basis that it would be appropriate to discount his earning capacity as a supervisor to 75% of that which he would have as a miner. 75% of $949 is $712.
However on the evidence I am unpersuaded that at age 40 the plaintiff would, having regard to the technological changes that have already commenced in the industry, be able to obtain full time employment. I think it would be more difficult for him to obtain lengthy regular employment with relatively smaller mining operations and that as he grew older he would find it more difficult to find and retain employment in a supervisory capacity - particularly as technological changes in the larger mines produced more underground miners seeking similar sorts of positions. As well as those considerations by reason of advancing age, risk of injury, deteriorating back condition and developing mechanisation, I take the view that his income earning capacity of $712 ought be reduced by 30% over this 25 year period which results in average weekly net income capacity of about $499.
The present value of the loss of $499 per week for 25 years is $371,256. That postponed for 3.42 years amounts to $314,602.
The present value of the loss of $949 for 178 weeks using the 5% tables is $155,636.
If then the plaintiff were left with no capacity to earn income I would assess his future loss in the sum of $155,636 plus $314,602 which amounts to $470,238.
However I believe that the plaintiff does at date of judgment have a capacity to earn income at the rate of at least the guaranteed minimum wage for South East Queensland discounted by 30%. The present weekly guarantee minimum wage is $258. Discounted by 30% it is $180.60.
The present value of $180.60 per week for 28.4 years is $142,493. I deduct that sum from $470,238 which leaves $327,745.
I assess damages for the plaintiff's loss of future earning capacity therefore in the sum of $327,745.
With respect to the Griffiths v. Kerkemeyer claim, I find that during the first four years after his injury the plaintiff did need care and assistance to do things which his injury had deprived him of the capacity to do for himself. That included care and attention from his wife and relatives.
In this matter also I have great difficulty in assessing a proper sum. I am of the view that the plaintiff in this respect also has exaggerated his claims. Nevertheless it seems to me that upon the whole of the medical evidence he was suffering from a psychological/psychiatric problem involving depression etc. This undoubtedly resulted from the physical injuries that he had suffered, albeit that he has magnified the effects of those injuries for the purpose of his action.
Doing the best I can I will simply assess his loss at $150 per week for 26 weeks and $80 per week for 174 weeks. All told I allow the claim for 200 weeks, which is approximately 4 years. That sum totals $17,820. I round that off to $18,000. At the beginning of the second period of 174 weeks he probably needed more care and assistance than he did at the end. However, I simply adopt a broad brush approach and make an award for past need for services under Griffiths v. Kerkemeyer in the sum of $18,000. I make no allowance for future services.
The plaintiff may have to have a minor operation to his foot in the future. If he does this will probably cost about $3,000. There is the possibility that he would be better off if he had the lower part of his leg amputated and wore a prosthesis. This however does not seem a step which, understandably, he is prepared to take. Again there is a suggestion that he might in the future have an operation to get pain relief from pain in his spine. The doctors do not favour this course and really suggest that the aetiology of the pain is not such that an operation of that sort would give him relief.
I am not persuaded that many of the aids and equipment which have been claimed including handrails around the house and a wheel chair are reasonably required by the plaintiff. Indeed, it is Dr Morgan's view that he would be better off if he had trouble with his foot to use crutches so that he would keep up his muscle tone and avoid the psychological impact of seeing himself as requiring a wheelchair.
I am unpersuaded that when this litigation concludes the plaintiff will incur anything like the medical and pharmaceutical expenses claimed - in the sum of $91,118. I allow for future expenditure:
For bandages, dressings etc. $3.700
For drugs (principally for psychological/psychiatric needs) $20,000.00
For medical consultations $6,000.00
________
$29,700.00
________
For the cost of special shoes that the plaintiff will need at $450 per pair, I take the view on the evidence that he will need one pair of these shoes a year and the present value of the cost of such shoes over the next 38 years is $7,590. He will need a walking stick every two years and the present value of walking sticks in the future will be $214. He will need to purchase socks monthly by reason of the injury to his left foot and the present value of the socks needed over the next 38 years is $10,120.
I assess the plaintiff's damages as follows:
Pain, suffering, loss of amenities of life $75,000.00
Apportioned $45,000 pre-trial and $30,000 post-trial
Interest on pre-trial assessment at 2% per annum for a period of 6.5 years at 2% $5,850.00
Pre-trial loss of income $296,172.00
Interest on $195,935 being $296,172 less $160,237 received by way
of Workers' Compensation, pension etc. for 6.5 years at 6% $76,414.65
Loss of future earning capacity $327,745
Past Griffiths v. Kerkemeyer damages (March 1990 for 200 weeks) $18,000.00
Special Damages
Medical Treatment
(a)Hospital expenses paid by WCB (Ex. 2) $10,748.95
(b)Medical expenses paid by WCB (Ex. 2) $13,329.46
(c)Other expenses paid by WCB (Ex. 2) $2,257.31
(dTravel expenses paid by plaintiff (Ex. 12A) $2,542.00
(e)Other expenses paid by plaintiff $1,150.00
(f)Refund to Medicare (Ex. 15) $5,335.55
(g)Refund to St Vincents Hospital (Ex. 17) $382.00
Interest on special damages paid by plaintiff ($6,494.53) @ 6% p.a. for 6 years $2,338.00
Pharmaceutical Expenses
Prescriptions (6/4/90 to 9/3/93) (Ex. 14) $1,465.00
As per Schedule of Pharmaceutical Expenses from P Curkovic Pharmacy
(10/3/93 to 01/08/95( (Ex. 13) $1,337.53
Sterilised gauze (required every 2/3 months since accident) @ $15.00 each packet $375.00
Tape (required yearly) @ $15.00 per roll $300.00
One pair of custom made shoes $450.00
Walking stick $25.00
Lawnmowing Expenses
As per Schedule of Lawnmowing Expenses (Ex. 11A) $1,385.00
Future Expenses
Cost of operation to foot in the future $3,000.00
Cost of shoes in the future $7,590.00
Cost of walking sticks in the future $214.00
Cost of socks needed in the future $10,120.00
Cost of future pharmaceutical and medical expenses $29,700.00
________
$893,227.45
Fox v. Wood component $2,881.25
________
Total $896,108.70
________
40% of that total is $358,443.48.
From that sum $96,327.87 is refundable to Workers' Compensation Board leaving $262,115.61.
I give judgment for the plaintiff for the sum of $262,115.61.
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