Suleski v Sons of Gwalia Ltd - [2004] WADC 88

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SULESKI -v- SONS OF GWALIA LTD [2004] WADC 88

CORAM: MARTINO DCJ

HEARD: 19-27 NOVEMBER 2003 16-19 FEBRUARY 2004

DELIVERED : 14 MAY 2004

FILE NO/S: CIV 718 of 1998

BETWEEN: BORIS SULESKI
Plaintiff
AND
SONS OF GWALIA LTD
Defendant

Catchwords:

Torts - Negligence - Employer and employee

Legislation:

Limitations Act 1935

Mines Safety and Inspection Act 1994
Workers' Compensation and Rehabilitation Act 1981

Workers' Compensation and Rehabilitation Amendment Act 1993

Result:

Plaintiff's claim dismissed, damages provisionally assessed

Representation:

Counsel:

Plaintiff: Mr P R Eaton (November 2003)
:Mr M D Cole (February 2004)

Defendant: Mr P V Batros

Solicitors:

Plaintiff: Terrace Law
Defendant: Mullins Handcock

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

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Jongen v CSR Ltd (1992) A Tort Rep 81‑192
Matthews v Kuwait Bechtel Corporation [1959] 2 QB 57
McLean v Tedman (1984) 155 CLR 306

Case(s) also cited:

Paric v John Holland Constructions Pty Ltd (1985) 62 ALR 85
Ramsay v Watson (1961) 108 CLR 642
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Whisprun Pty Ltd v Dixon [2003] HCA 48

MARTINO DCJ:

Introduction

In May 1996 the plaintiff ("Mr Suleski") was a pit technician employed by the defendant ("Sons of Gwalia") at Sons of Gwalia's open pit mine, approximately five kilometres from Southern Cross. Mr Suleski claims that on 9 May 1996 he was working on a ledge approximately five metres above the pit floor using powdered lime to mark areas to be mined on the face below him when he fell onto broken rock and was injured.
Mr Suleski alleges that he was injured as a result of Sons of Gwalia's negligence and breach of contract. He claims damages for the personal injuries he alleges he suffered. In his particulars of negligence he claims that Sons of Gwalia, its servants or agents were negligent in that they:
"a)failed to provide any or any adequate assistance;
b)failed to ensure that the mine pit ledge was safe to work on;
c)failed to provide [Mr Suleski] with a safety harness;
d)failed to observe that [Mr Suleski] was in a position of peril; and
e)failed to provide a safe and proper system of work."
The final particular of negligence is further particularised as follows:
"(i)The requirement [Mr Suleski] use lime to mark an area was unsafe in that it required [Mr Suleski] place himself in close proximity to a vertical or near vertical face in circumstances where the ledge might be unstable underfoot.
(ii)[Sons of Gwalia] failed to devise a system of marking which ensured that the marker would not be exposed to danger."
Mr Suleski also relies upon those particulars to claim that Sons of Gwalia was in breach of its contract with him in that it breached implied terms to exercise reasonable care for his safety and to provide a safe place of work. The claim for breach of contract was made by amendments to the writ and statement of claim made with leave during the trial.
The injuries Mr Suleski claims he suffered in the alleged accident are a head injury, a fractured nose, abrasions to the left thigh and a soft tissue injury to the cervical spine. Mr Suleski claims that as a result of the alleged accident he sustained a major depressive disorder, anxiety disorder, panic disorder, pain disorder and a somatoform disorder which have produced depression, multiple negative thought patterns, loss of self esteem, poor concentration, sadness, confusion, psychomotor retardation and a flattening effect.
Sons of Gwalia admits that Mr Suleski was employed by it at its gold mine but denies that he was marking with lime areas to be mined, that Mr Suleski fell, that it was negligent or in breach of contract and that Mr Suleski suffered any injury or loss. Sons of Gwalia pleads that:
"a)if the pit technician does his job properly, it is a one man job and there is no need for any assistance;
b)the mine pit ledges are never intended to be worked on;
c)you do not use a safety harness in the open cut mining industry because there is nothing to attach it to;
d)if a pit technician is doing his job properly he should never be in a position of peril;
e)[Sons of Gwalia] always made its best and reasonable endeavours to provide a safe and proper system of work. On a mining site it is not possible [to] achieve a level of perfection;
f)the pit technician or anyone else is not supposed to be on the ledge in the first place; and
g)the pit technician is supposed to mark only on the horizontal [plane] in the normal course. Occasionally if the vertical face requires marking (which is very rare) any such marking for the purposes of the excavator can be made by the pit technician whilst standing on the horizontal pit floor."
Sons of Gwalia claims that Mr Suleski's claim for breach of contract is barred by s 38(1)(c)(v) of the Limitation Act 1935. It also claims that any injuries suffered by Mr Suleski were caused or contributed to by his negligence in:
"a)[failing] to adhere to the instructions given to him by his supervisor;
b)[failing] to take adequate or proper precautions for his own safety; and
c)[failing] to exercise reasonable care for his own safety, by deciding of his own volition and for no good reason, nor for any good purpose, to walk out on a beam (sic), and without any prior reference to the geologist in his office."
Sons of Gwalia also pleads that Mr Suleski was in breach of statutory duty imposed on him by s 10 of the Mines Safety and Inspection Act 1994 and that any injury loss or damage suffered by him was caused or contributed to by that breach. Sons of Gwalia has provided the following particulars of breach of statutory duty:
"a)as an employee of [Sons of Gwalia], [Mr Suleski] owed a duty to take reasonable care to ensure his or her own safety and health at work;
b)pursuant to Section 10(2)(a) of the Mines Safety and Inspection Ac 1994, [Mr Suleski] failed to comply with instructions given by [Sons of Gwalia] for [Mr Suleski's] own safety or health; and
c)[Sons of Gwalia] otherwise repeats [it particulars of contributory negligence]."
Sons of Gwalia also claims that any injury, loss or damage suffered by Mr Suleski was caused or contributed to by "a pre-existing medical condition and/or psychiatric disorder of [Mr Suleski] or other factors, namely [Mr Suleski] is a malingerer" and that Mr Suleski has failed to mitigate his loss by:
"a)failing to return to work when he was told by Mr Tim Blyth from [Sons of Gwalia], Dr Derham, Dr Oleh Kay and Dr William Walker to do so; and
b)his trenchingly (sic) refusal to go back to work."
Sons of Gwalia counterclaims that it was an implied term of the contract of employment between it and Mr Suleski that Mr Suleski would exercise reasonable care and skill in the performance of his duties and that he breached that duty in the manners claimed in the pleas of contributory negligence and breach of statutory duty. It counterclaims that by reason of that breach it has suffered loss and damage in that it is exposed to liability for Mr Suleski's claim in this action.

Mr Suleski

Mr Suleski was born on 14 August 1953 in Macedonia. He was married on 20 January 1982 and has two children, who were born on 23 December 1982 and 23 February 1986.
He was educated in Macedonia. His level of education was to the equivalent to Year 10 level in Western Australia. He was 16 years old when he left school.
On leaving school Mr Suleski commenced an apprenticeship as a surveyor. He had completed two years of that apprenticeship when he came to Australia in 1972. He had not completed the apprenticeship and was not qualified as a surveyor.
Approximately two months after his arrival in Australia Mr Suleski commenced work in Perth as a labourer at fish processing factory. He remained in that employment for approximately a year.
Mr Suleski's next employment was with the Main Roads Department in Port Hedland. He was working as a labourer or assistant bricklayer on the construction of a road between Port Hedland and Roebourne.
After working for the Main Roads Department for approximately a year Mr Suleski obtained employment as a kitchen hand in Karratha. He remained in that employment for approximately a year and then obtained employment driving trucks and rollers in the construction of a road between Fitzroy Crossing and Halls Creek.
Following that employment Mr Suleski returned to Macedonia. Prior to his return to Macedonia Mr Suleski had been employed for the majority of his time in Australia.
In Macedonia Mr Suleski obtained employment in a bakery working night shifts. Mr Suleski married in Macedonia. He returned to Australia in 1982, with his wife, before his first child was born.
After his arrival in Australia in 1982 Mr Suleski obtained employment as a kitchen hand in Karratha. He became an Australian citizen in 1983 and returned to Macedonia with his family the same year.
Mr Suleski returned to his bakery work in Macedonia and also assisted his father one day a week on his father's small farm. He remained in Macedonia until 1987 when he returned to Australia. Mr Suleski's wife and children did not accompany him on his return to Australia but remained in Macedonia.
Mr Suleski obtained employment in Southern Cross with Broken Hill Metals in a gold mine. He carried out a range of labouring and driving tasks in that employment.
In 1989 Mr Suleski returned to Macedonia, where he remained until 1994. In Macedonia he returned to working in a bakery and on his father's farm. In 1994 Mr Suleski returned to Australia. His wife and children joined him approximately 2 months later.
In February 1994 Mr Suleski obtained employment as a sampler with Reynolds Mining, a gold mining company, in Southern Cross. While working for Reynolds Mining Mr Suleski became a pit technician. Mr Suleski became employed by Sons of Gwalia when that company took over the mining operations of Reynolds Mining at Southern Cross.
Mr Suleski was able to give evidence without the aid of an interpreter but his command of English is limited. He is at times difficult to understand, both because of his accent and his use of grammar.

Mr Suleski's duties as a pit technician

When he worked in Southern Cross for Reynolds Mining and Sons of Gwalia Mr Suleski worked on several open cut mines. Each open cut mine was called a pit and identified by a name. The pit at which Mr Suleski was working on 9 May 1996 was the Sunbeam pit. It was part of a group of mines known as Transvaal.
The role of a pit technician at Sons of Gwalia's open cut mines is to ensure the efficient digging of ore out of the mine by providing support to the mine geologists. The pit technician marks out areas to be mined, supervises the digging of the ore and the loading of the ore onto trucks, records the loading of ore onto trucks, takes samples of ore, takes the samples to the assay laboratory and carries out other tasks as directed by the geologists.
At the Sunbeam pit the geologist to whom Mr Suleski reported in May 1996 was Mr Andrew Loreck. Mr Loreck reported to Mr Timothy Blyth. Sons of Gwalia employed Mr Blyth as its senior geologist for its Marvel Loch operations. His responsibilities included the Sunbeam pit. The Marvel Loch operations were approximately a 20 minute drive from the Sunbeam pit.
The method adopted by Sons of Gwalia to mark areas on a mine was the use of powdered lime. Other methods can be used and are used on other mines. Other methods of marking a mine include the use of paint and coloured flagging tape.
Mr Suleski obtained the lime from a shed near the site office. The lime was in bags. Each bag weighed 30 kilograms. Mr Suleski would break up a bag into two bags each containing 15 kilograms of lime and take those bags with him to the pit.
Mr Suleski marked the areas to be mined with that lime. The mining was performed by excavators. Mr Suleski was in contact with the drivers of the excavators using two-way radios.

Open cut mining

An open cut mine is a mine in which ground is removed in layers to provide access to ore. As layers are removed a pit is formed. The walls of the pit are called batters. Each level of the pit is called a bench. To ensure the safety of the mine floor the walls are interrupted by safety catch benches which are formed as the mine gets deeper. These safety catch benches, which are called berms, catch any rock that falls down the batters.
The process of removing layers of the mine begins with blast holes being bored into the rock. Explosives are placed into the holes and fired, breaking the rock into pieces that are placed onto a truck by an excavator and removed from the pit.
The first holes that are drilled are around the perimeter of the pit. These holes, which are called pre-split holes, are drilled close together. Once the explosives are fired in the pre-split holes the rock is cracked along the line of the holes to form the wall of the pit.
The walls of the pit are generally five metres high between each berm. The blast holes are drilled a little deeper than five metres to ensure that the rock is broken to a depth of five metres. The creation of these five metre walls is done in two stages. At first the broken rock is removed to a depth of two and a half metres. Once that layer is removed the next two and a half metres of broken rock is removed and the unbroken rock is exposed. At that stage the excavator cleans back the rock along the walls of the pit to the where the pre-split holes were drilled.
There was a difference between the witnesses as to the angle of the walls of the pit. Mr Suleski's evidence was that the walls of the pit were initially vertical and that the walls were excavated to an angle of 70 degrees. Craig Richard Pridmore, a geologist who worked as the mine geologist at Sons of Gwalia's Southern Cross pits until approximately late 1995, gave evidence that the initial angle of the wall of a pit could range from between 70 degrees and 90 degrees. At an angle of 90 degrees the walls would be less structurally secure and the angle would be reduced.
Mr Blyth's evidence was that when the walls are created the pre-split holes are drilled at the angle at which the wall is meant to be, which is usually about 70 degrees.
I accept that pit walls are not designed to be at an angle of 90 degrees. At that angle the walls would be unsafe. I also accept that the pre-split holes were drilled at the angle at which the wall was designed, which is generally at an angle of approximately 70 degrees. It is likely that blasting did not always produce a wall at the same angle as the pre-split holes and that sometimes the walls would be steeper than 70 degrees after blasting. When that occurred the obvious thing to do would be to excavate the wall until it reached an angle of 70 degrees.

The marking of the walls of the pit

Mr Suleski's evidence was that as part of his duties as a pit technician he was required to mark the five metre high walls of the pits when the angle of walls needed to be reduced by excavation. The marking of the walls was to provide directions for the excavator operator. Mr Suleski's evidence was that he did so by marking to two and a half metres from the floor of the pit and marking down two and a half metres from the top of the wall by pouring lime over the edge of the wall.
Mr Pridmore's evidence was that at times the wall of a pit would need to be marked by the pit technician to show the excavator operator where there was ore to be mined. This was done by the pit technician pouring lime over the edge of the pit wall.
Mr Loreck's evidence was that the obvious way to mark the pit wall was to do so from the floor of the pit and that anyone in the mining industry knows that.
Mr Blyth also gave evidence that if it were necessary to mark the wall of the pit it could be done by marking the wall from the pit floor. His evidence was that it would be unsafe to pour lime over the edge of walls.
Mr Loreck completed an accident report form after he found Mr Suleski. That form asked the following question:
"Steps taken to prevent similar recurrence:"
Mr Loreck answered that question:
"Ensure personnel are aware of correct procedure climbing up and down 5 metre faces."
In the form Mr Loreck has noted that Mr Suleski had told him that he had fallen down the pit wall and so the answer that I have quoted does not assist me in determining whether there was a general practice to go to the top of pit walls to mark them.
Mr Loreck's evidence was that on 9 May 1996 he instructed Mr Suleski to stay with the excavator on the pit floor because he did not want Mr Suleski to go to the top of the face of the pit and pour lime over the edge. Mr Loreck did not give evidence as to why he seemed to think that Mr Suleski might go to the top of the face of the pit and pour lime over the edge if he was not told not to do so and he was not asked that question by either counsel.

The events at the Sunbeam pit on 9 May 1996

There were only two witnesses as to the events at the Sunbeam pit on the morning of 9 May 1996: Mr Suleski and Mr Loreck.
Mr Suleski's evidence‑in‑chief was that on 9 May 1996 he started work at six in the morning. When he arrived at work he picked up a map from the geologist's office at the Sunbeam pit. Apart from a cleaner there was no‑one in the office. The geologist was not there, but the geologist's standard instruction to him was to collect a map from his office each morning.
After he collected the map he went to the pit to see how far work had progressed during the night shift. He then returned to the office and collected two 15 kilogram bags of lime.
On the pit floor there were two excavators. One of the excavators had broken down. The excavator that was working was at a location approximately 20 metres from where Mr Suleski was to mark the pit with lime. A pipe was leaking water above the pit floor and Mr Suleski began to repair the leak.
Mr Suleski's evidence was that it had been raining the night before, was raining that morning and that it stopped raining between 8 o'clock and 9 o'clock, although he was not sure of the time at which it stopped raining.
Mr Loreck approached Mr Suleski at approximately 9 o'clock in the morning. He spoke to Mr Suleski at the top of the pit. Mr Loreck told Mr Suleski to go into the pit and mark the five metre wall of the pit as indicated on the map Mr Suleski had collected that morning.
Mr Suleski repaired the pipe and then drove his vehicle into the pit. He collected the two bags of lime from the pit floor. He then walked to a ledge at the top of the five metre wall to mark it. The ledge was between three and four metres wide. He left one bag approximately half a metre from the edge and took the other bag to the edge. On the surface of the ledge there were large rocks which were difficult to stand on and were slippery. He has no recollection of what occurred after looking over the edge. His next memory is of waking in Sir Charles Gairdner Hospital.
In cross examination Mr Suleski agreed that he had seen Mr Loreck at approximately 6.15 in the morning of 9 May 1996. When counsel for Sons of Gwalia reminded him that his evidence in chief had been that he had not seen Mr Loreck until 9 o'clock that morning Mr Suleski denied that he had changed his evidence and said that it was hard for him to remember matters that happened so long ago.
Mr Suleski called Mr Loreck to give evidence. Mr Loreck's evidence‑in‑chief was that in the morning of 9 May 1996 at approximately between 10 and 11 o'clock he drove down to the pit floor to check on how Mr Suleski was going on the excavation of the ore at the northern end of the pit. Near the northern wall of the pit Mr Loreck saw Mr Suleski. Mr Suleski appeared unwell. He was leaning against his vehicle with his arms crossed and his head leaning forward. He had some lime on his trousers and his jacket was ruffled.

Near Mr Suleski on the pit floor was a bag of lime. The bag had holes in it and was almost empty. There was some lime on the bottom of the pit.
Mr Loreck checked Mr Suleski's pulse and pupils and took him to the Southern Cross District Hospital.
The wall of the pit from the floor to the next berm was approximately five metres. There was lime on the wall to a height of approximately two metres from the pit floor. Mr Loreck had placed that lime on the wall earlier that morning. He could not see any other lime on the wall of the pit.
Mr Loreck had decided to mark the wall after a meeting that morning. As a result of that meeting Mr Loreck knew that it was intended to scrape down the batters. Mr Loreck knew that Mr Suleski was working outside of the pit doing another task so he went down to the pit floor and marked up the ore body.
In cross‑examination Mr Loreck was asked about his meetings with Mr Suleski on the morning of 9 May 1996. His evidence was that he first met Mr Suleski at approximately 6.30 am in the office car park area. He next saw Mr Suleski at approximately 10 o'clock on the pit surface staking out a cable route near the contractors' office. The pit surface is at the top of the mine, not the pit floor. Mr Suleski had almost completed that task.
Mr Loreck instructed Mr Suleski to go to the pit floor to monitor the digger extracting ore in the pit and to work with the digger operator. The digger is another name for the excavator. As I have noted earlier in these reasons Mr Loreck's evidence was that he instructed Mr Suleski to stay with the excavator on the pit floor because he did not want Mr Suleski to go to the top of the face of the pit and pour lime over the edge. When Mr Loreck had marked the pit wall that morning he did so by standing on the pit floor.

The physical injuries suffered by Mr Suleski

As I have noted Mr Suleski's evidence was that he could not recall what occurred between him being near the edge of the pit wall and waking in Sir Charles Gairdner Hospital. His evidence was that he was in a lot of pain at the hospital and that he had bruises down the left side of his body, to his nose and to his head.
Mr Loreck's evidence was that when he saw Mr Suleski on the floor of the pit Mr Suleski did not appear to be well. Mr Suleski was leaning against his vehicle which was something he did not usually do. Mr Suleski's jacket looked a bit ruffled and he had lime on his trousers. Mr Suleski showed Mr Loreck a graze on his left thigh just above the knee. That was the only injury Mr Loreck observed on Mr Suleski.
At the Southern Cross District Hospital Dr Hugh Derham, a general medical practitioner, saw Mr Suleski. Mr Suleski appeared confused and drowsy and said he could not remember his accident. He complained of a sore neck and head. He was in a reduced state of consciousness and was difficult to rouse. He did not voluntarily speak but only answered when spoken to in a loud and encouraging voice. The only physical injury observed by Dr Derham was an abrasion of the left posterolateral thigh. Dr Derham's opinion was that the reduced state of consciousness was caused by a fairly substantial head injury. His diagnosis was concussion due to a head injury and a possible soft tissue neck injury. Dr Derham gave Mr Suleski intravenous fluid, inserted a urinary catheter and arranged for him to be transferred as a matter of urgency to the neurological unit at Sir Charles Gairdner Hospital.
Mr Suleski was transferred to Sir Charles Gairdner Hospital by plane and arrived at the hospital on 9 May 1996. The hospitals records are that in the Emergency Department he was drowsy but orientated and obeying commands. His pupils were equally reactive. He had no cerebra-spinal fluid leak from his ears or nose and there were no focal neurological deficits. Aside from a swollen nose there were no other injuries. CT scans of his cranium were performed on 9 and 15 May 1996. These showed no abnormality other than a fractured nose. X‑rays of his cervical spine, thoracic spine, lumbar spine, pelvis and chest showed no abnormality. He was admitted for observation. In the ward he complained of attention deficit and sleeping problems. He was reviewed by ear, nose and throat surgeons who decided to manage his fractured nose conservatively. On 21 May 1996 he was discharged back to the care of Dr Derham in Southern Cross Hospital.
Dr Derham saw Mr Suleski in the Southern Cross Hospital daily from 21 May 1996 to 28 May 1996. Mr Suleski's sleep pattern was disturbed and he exhibited multiple negative thought patterns. Dr Derham formed the opinion that Mr Suleski was depressed and becoming more so. He prescribed anti‑depressant medication and encouraged Mr Suleski to return to work under close supervision and on light duties. It was Dr Derham's opinion that it would be therapeutic for Mr Suleski to return to work. Mr Suleski did not return to work. It is Dr Derham's opinion that Mr Suleski's suffered reactive depression as a direct result of an accident on 9 May 1996 and that due to that depression Mr Suleski was unable to contemplate a return to work. Dr Derham referred Mr Suleski to Dr William Walker, psychiatrist and to Dr David Prentice, a physician with an interest in headaches. It was Dr Derham's opinion that all Mr Suleski's clinical signs were consistent with him falling five metres.
When he saw Mr Suleski on 9 May 1996 Dr Derham did not observe that Mr Suleski had a broken nose and he saw no swelling, obvious deformity or abrasion of the nose. The only objective sign of injury he found was the abrasion of the left posterolateral thigh.
In the course of cross examination Dr Derham gave the following evidence:
"Didn't it strike you as being rather odd that if a man had fallen on a mine site from a ledge 5 metres up and fallen down onto broken ground - didn't it strike you as odd that there would be no other sign of injury on his body?---No. That's not odd at all. I have seen many people who have had various falls and accidents and very often the objective signs of injury are quite minimal.
They may be minimal but in this case they are almost non existent apart from the abrasion on his left posterolateral thigh. That's something less than minimal, isn't it?---No.
Have you ever had in your long experience as a general practitioner cases where patients have come to you having fallen from heights onto broken ground and had a lot of bruises and abrasions?---Yes.
Isn't that more often the case than not?---It's difficult to say. I can't remember seeing a hundred. I have seen a handful of such people.
Again I'm putting it to you that it's more likely than not that you would have a widespread number of cuts and abrasions if in fact someone fell from such a height onto broken ground?‑‑‑Possibly.
…
Would it be your view then that it's more likely than not that the broken nose occurred after you had examined the man?---No.
Why not?---A blow to the nose can very easily leave no marks and take several hours to produce a swelling." (T196‑198)
It is Dr Derham's opinion that because of the degree of lack of consciousness when he first saw Mr Suleski that Mr Suleski suffered a fairly substantial head injury.
In the morning of 9 May 1996 Dr Derham contacted Mr Suleski's wife Mrs Kica Suleski. Mrs Suleski was at work 35 kilometres from Southern Cross. Mrs Suleski went straight to the Southern Cross District Hospital and saw Mr Suleski at approximately noon. Her evidence was that Mr Suleski was lying in bed with a sheet over him. Mrs Suleski could see his head but not any other part of his body. He appeared to be unconscious and had fresh scratches on his nose and the left side of his face. Mrs Suleski remained with her husband at the Southern Cross District Hospital for approximately five minutes. She left to make arrangements to enable her to go to Perth.
Mrs Suleski travelled with Mr Suleski on the plane to Perth. Her evidence was that Mr Suleski appeared unconscious on the flight. Mrs Suleski saw Mr Suleski at Sir Charles Gairdner Hospital. Her evidence was that he had fresh grazes with skin loss on his left shoulder, his torso on the left side, his left arm from his shoulder to his elbow, his left hand and his left leg to his knee. Mrs Suleski also gave evidence that at Sir Charles Gairdner Hospital Mr Suleski had a plastic bag attached to the left side of his body and that a doctor told her that Mr Suleski's left kidney was bleeding.

Film of Mr Suleski

Sons of Gwalia arranged for film to be taken of Mr Suleski. The first film was taken in October 1996. That film shows Mr Suleski walking slowly but not with any obvious disability. He had a walking stick with him but did not appear to place any significant weight on it when he was walking. He stepped onto a bus without any obvious difficulty. A young boy was walking with Mr Suleski in part of the film. The young boy carried two full plastic bags. Mr Suleski carried nothing other than his walking stick.
The second film was taken in August 1997. It shows him walking, ascending and descending stairs. When doing so Mr Suleski walked slowly but without any obvious difficulty. He again did not appear to place any significant weight on a walking stick he had with him. The film shows Mr Suleski in a shopping centre where he stood at a post office counter and was served. The film also shows Mr Suleski sitting on a bench in the shopping centre and sitting outside reading a newspaper
The third film was also taken in November 1997. It showed Mr Suleski bending slightly to look at a car and standing at the side of the road looking at the car. His wife lifted the bonnet of the car and looked into the engine. Mr Suleski walked across a busy road. He appeared to have unrestricted neck movements when looking to check traffic on the road. Mr Suleski was also shown at a shopping centre where he ascended stairs, walked and sat. Mr Suleski walked slowly and had a walking stick but did not appear to place any great weight on it. There did not appear any restriction in the movements of Mr Suleski's head.

Medical opinions on Mr Suleski

The first medical practitioner who saw Mr Suleski was Dr Derham. Dr Derham first saw Mr Suleski on 9 May 1996 and the last occasion was 28 May 1996. I have summarised Dr Derham's opinions earlier in these reasons. On 28 May 1996 Dr Derham discharged Mr Suleski from the Southern Cross District Hospital. He advised Mr Suleski to return to work. Dr Derham believed that it would be therapeutic for Mr Suleski's depression to return to work. However Mr Suleski did not return to work and it is Dr Derham's opinion that due to his depression Mr Suleski was unable to contemplate a return to work.
Dr Michael Beinart is a general medical practitioner who practises in West Perth. He has been Mr Suleski's general medical practitioner since 6 June 1996. When Dr Beinart first saw Mr Suleski he appeared to be in a severely distressed and emotional state. Mr Suleski had a full range of movement of his cervical and lumbar spine but was guarded in his movements and complained of diffuse tenderness over his paraspinal muscles. Dr Beinart contacted Dr Derham and they agreed that Mr Suleski see Dr Walker and Dr Prentice. Dr Beinart referred Mr Suleski to Dr Oleh Kay, psychiatrist, on 24 October 1996. In Dr Beinart's opinion Mr Suleski has suffered severe secondary depression as a result of a fall down a pit wall on 9 May 1996 and that as a result of that depression he is unfit for work and likely to remain unfit in the future.
Dr Walker first saw Mr Suleski on 6 June 1996. Mr Suleski presented as a tense, agitated man who looked depressed. In his report to Dr Derham dated 9 July 1996 Dr Walker described Mr Suleski as shuffling in like an old man. Dr Walker found he had to examine Mr Suleski in a patchy way and that formal testing of cognition was impossible as Mr Suleski would get distressed and claim to be dizzy. Mr Suleski tended to focus on physical symptoms. Although Dr Walker could not fully assess Mr Suleski he thought it likely that Mr Suleski had post‑concussion syndrome, some soft tissue damage and some depression and anxiety.
Dr Walker arranged for Mr Suleski to be admitted to Stirling Community Hospital and for him to be examined by Dr Peter Silbert, neurologist.
Dr Silbert saw Mr Suleski on 19 and 30 June 1996 and arranged for an EEG. The EEG was normal. Dr Silbert reassured Mr Suleski that there was no serious underlying neurological cause for his symptoms.
Dr Walker also arranged for Mr Suleski to receive neuropsychological assessment, but this was not possible because the tests did not produce reliable results.
Mr Suleski left Stirling Community Hospital on 5 July 1996. At that time Dr Walker saw Mr Suleski as having had a frightening incident in which he fell five metres or so and may have felt that his life was in danger. Dr Walker considered it likely that Mr Suleski had been concussed but that he did not suffer lasting neurological impairment. He expected that the prognosis would be favourable and that Mr Suleski would improve, however that may have been affected by Mr Suleski's extreme pessimism about the outlook.
Dr Walker continued to treat Mr Suleski for approximately a year. Mr Suleski's condition did not improve and the treatment was not successful. In a report to Mr Suleski's solicitor dated 17 February 1997 Dr Walker expressed the opinion that Mr Suleski had no present or future capacity for work and that he would require ongoing treatment by his general medical practitioner with occasional psychiatric monitoring and possible some antidepressant and sedative medication.
A few days before he gave his evidence Dr Walker saw the films of Mr Suleski which were taken in 1996 and 1997. The contents of the films did not alter the opinion he expressed in his report of 17 February 1997. He did not find Mr Suleski's presentation in the films as totally different form his presentation to Dr Walker. Dr Walker saw the films as showing manifestations of Mr Suleski's presentation to him, although to a lower degree. Dr Walker saw in the films that Mr Suleski was treated as being disabled and was benefiting from being so treated and this reinforced his own perception that he was ill. For example the film of Mr Suleski watching Mrs Suleski looking under the bonnet of the car showed behaviour which in Dr Walker's opinion was not the behaviour of a normal Balkan man.
It was Dr Walker's opinion that Mr Suleski was exaggerating things but that behind that he was suffering an underlying serious psychological dysfunction. He diagnosed Mr Suleski as having suffered an acute stress reaction to a fall and this reaction had caused Mr Suleski to suffer chronic symptoms of depression and anxiety.
Dr Walker considered it important for Mr Suleski to return to work to improve his psychiatric condition and he told Mr Suleski that he should do so, but Mr Suleski did not return. Dr Walker described Mr Suleski as retreating to a more inaccessible state. It was not Dr Walker's opinion that Mr Suleski was making a conscious decision not to return to work, but that he felt he was unable to do so.
Dr Walker described as dangerous Dr Kay's assessment of Mr Suleski as consciously fabricating his symptoms on the basis of one interview and then seeing the films. I refer to Dr Kay's opinions later in these reasons. Dr Walker did not agree with Dr Kay's opinion.
Dr Prentice saw Mr Suleski on 10 June 1996 and has not seen him since. He diagnosed post concussion syndrome with headache, possibly migrainous in nature, and dizziness. He recommended that Mr Suleski return to his general medical practitioner.
Dr Oleh Kay saw Mr Suleski on 30 October 1996 and has not seen Mr Suleski in a psychiatric consultation since then. When Dr Beinart referred Mr Suleski to Dr Kay he requested Dr Kay's opinion as to whether Mr Suleski was suffering from post-traumatic stress disorder. On the basis of his interview with Mr Suleski and the other medical reports with which he had been provided Dr Kay with reasonable certainty ruled out post-traumatic stress disorder.
In his report to Dr Beinart dated 30 October 1996 Dr Kay noted that the reports demonstrated significant inconsistencies in Mr Suleski's accounts of events and that, together with Dr Kay's examination of Mr Suleski, strongly suggested to Dr Kay that Mr Suleski was not suffering from depression but "rather a more complicated psychiatric disorder such as a somatoform disorder or a factitious disorder [hysteria or malingering]". A somatoform disorder is a psychiatric or psychological disorder which produces physical symptoms. Another name for the disorder is hysteria. Dr Kay used the term factitious disorder as meaning conscious malingering. In that report Dr Kay expressed the opinion that "[g]iven the obvious inconsistencies on psychiatric examination and the historical account, I believe that it is more likely that unconscious mechanisms are playing a more significant role in the in the genesis of his symptoms than him consciously malingering a disorder." Dr Kay's opinion at that time was that it was likely that Mr Suleski was not consciously malingering but had presented to him with genuine symptoms and was suffering from a somatoform disorder.
Dr Oleh Kay considered that the degree of physical injuries sustained by Mr Suleski did not correlate with Mr Suleski falling vertically some five to ten metres.
Dr Kay gave evidence on 21 November 2003. The night before he gave evidence Dr Kay saw the films of Mr Suleski that had been taken in 1996 and 1997. On the basis of those films Dr Kay changed his opinion on the question of whether Mr Suleski was consciously malingering or was suffering from a somatoform disorder.
Dr Kay found that Mr Suleski's gait in the films was completely different to his gait when Dr Kay saw him in his rooms. Dr Kay described Mr Suleski's gait in his rooms as bizarre, extreme and very peculiar. In his evidence Dr Kay described his opinion as follows:
"I have been provided with several surveillance videos of Mr Suleski taken at about the time that I had seen him and I know that his gait in other settings is completely different to the gait that he was presenting when I examined him. The gait that he was displaying outside of the setting of my consulting room features essentially a normal gait. Now, given that there's a substantial difference in the symptoms and that the substantial difference is depending on whether he is being examined by myself or he is in a situation where he believes he is not being examined - given also that there were other inconsistencies in the history that was provided to me by Mr and Mrs Suleski - I am of the opinion that the gait symptoms that he was displaying when I examined him were as a result of conscious mechanisms; in other words, it's not unconscious mechanisms, not a conversion disorder, not a somatoform disorder but, rather, a factitious disorder or malingering." (T327)
It was not only the change in Mr Suleski's gait that led to Dr Kay changing his opinion. There were other activities on the films that Dr Kay considered significant. These included Mr Suleski taking a large step to get onto a bus, unrestricted neck movements, the absence of any compelling evidence of depression, the apparent ability to conduct a financial transaction at the post office counter, his ability to walk up and down steps and his ability to bend and sit.
Dr Peter Stevenson is a consultant physician. Dr Stevenson saw Mr Suleski at the request of Sons of Gwalia's insurer on 10 October 1996 and on 4 November 2003. In his report dated 29 October 1996 Dr Stevenson has recorded Mr Suleski's description of his recollection of how he came to be injured as follows:
"Mr Suleski stated that, on 9 May 1996, at 10 am, he had driven in a pick-up truck to Sunbeam Pit for the purpose of putting in lime for the diggers. He said he can remember picking up a bag of lime and carrying it out of the truck, but had no other recollection until waking up in Sir Charles Gairdner Hospital with doctors at his bedside."

Dr Stevenson had no record or recollection that Mr Suleski ever told him he left the floor of the pit.
After he saw Mr Suleski in 1996 Dr Stevenson felt that there were two alternative hypotheses as to the cause of Mr Suleski's presented state. One hypothesis was that Mr Suleski had severe cerebral and cervical effects of trauma and a profound reactive depression to a terrifying experience and that his condition and prognosis had been grossly worsened by the failure of the insurer to recognise his claim and to fund proper treatment. The alternative hypothesis was that Mr Suleski showed gross symptom magnification of relatively minor or non-existent residual effects and that his condition had been exacerbated and prognosis worsened by the desire for financial compensation. Dr Stevenson favoured the second hypothesis. His reasons were that the Mr Suleski's presentation was bizarre and theatrical, that more severe post-concussion symptoms of headache and depression tend to occur in persons who have suffered trivial head injuries, that it was not clear to Dr Stevenson that Mr Suleski did have a frightening experience and that the results of neuropsychological testing of Mr Suleski did not provide to Dr Stevenson an explanation for Mr Suleski's presentation other than gross symptom magnification.
When he saw Mr Suleski on 4 November 2003 Dr Stevenson remained of the view that the Mr Suleski's presentation was not genuine. It was his opinion that Mr Suleski had recovered from any minor injuries he suffered on 9 May 1996.
After that appointment Dr Stevenson saw the films of Mr Suleski. In Dr Stevenson's opinion Mr Suleski's activities shown in those films confirmed the opinion he had formed on his reviews of Mr Suleski in his rooms. Dr Stevenson noted considerable differences between Mr Suleski's behaviour in the films and his behaviour in his rooms, particularly in the way he walked and his neck movements. In his rooms Mr Suleski hobbled and walked with a slow, hesitant gait whereas on the film he walked in a reasonably normal manner which did not suggest any incapacity. In his rooms Mr Suleski had an erratically limited range of movement in his neck. The neck movements in the film appeared unrestricted.
Professor Andrew Harper is a medical practitioner who practises in occupational and public health medicine. Professor Harper saw Mr Suleski on 13 March 1997 at the request of Mr Suleski's solicitor. Mr Suleski told Professor Harper that on 9 May 1996 he slipped and fell down a pit nine metres deep and that he did not remember the incident but remembered only being in Sir Charles Gairdner Hospital. He told Professor Harper that he had numerous symptoms including neck pain, head pain, insomnia, blood in his mouth, left loin pain, feeling unhappy and demoralised, intermittent disorientation and memory loss, dizziness, nausea and vomiting, fatigue and forgetting words. Professor Harper's opinion was that Mr Suleski's signs and symptoms were consistent with a head injury being suffered in a fall and that the head injury which rendered him totally incapacitated for any form of gainful employment. Professor Harper did not expect Mr Suleski's condition to improve sufficiently for him to re-enter the work force at any time.
Prior to giving his evidence at the trial Professor Harper had read reports on Mr Suleski from other medical practitioners. In his oral evidence Professor Harper said that his opinion when he saw Mr Suleski was that Mr Suleski had suffered concussion in the fall and that the most likely explanation for his cognitive symptoms was post-concussion symptoms. After reading the other reports Professor Harper's opinion was that the head injury suffered by Mr Suleski was minor and that his symptomatology and continuing disability is psychiatric. It follows that my acceptance or rejection of Professor Harper's opinions turns on my assessment of the opinions of the psychiatrists who have seen Mr Suleski.
Professor Harper was shown film of Mr Suleski taken in October 1996. He agreed that the film did not show a person who was severely disabled.
Dr Harold Schaeffer is a consultant neurosurgeon who is now semi-retired. Dr Schaeffer has seen Mr Suleski at the request of Sons of Gwalia's insurer. The first occasion on which Dr Schaeffer saw Mr Suleski was 5 December 1997. Dr Schaeffer found marked discrepancies between Mr Suleski's reports to him of his complaints and symptoms and his clinical findings. Dr Schaeffer was unable to arrive at a diagnosis of any medical condition suffered by Mr Suleski as a result of any accident at Sons of Gwalia's mine on 9 May 1996. In his opinion Mr Suleski had made a total recovery from any injuries suffered in any such accident and from the view point of his physical condition Mr Suleski was capable of returning to work with Sons of Gwalia.
In January 1998 Dr Schaeffer saw the films of the Mr Suleski taken in 1996 and 1997. It is his opinion that Mr Suleski's activities shown on the films are inconsistent with his alleged injuries. He had no doubt that Mr Suleski grossly exaggerated his complaints and symptoms when Dr Schaeffer saw him.
Dr Schaeffer again saw Mr Suleski on 16 October 2003. He again found gross discrepancies between the symptoms reported by Mr Suleski and Dr Schaeffer's clinical findings. It seemed likely to Dr Schaeffer that Mr Suleski suffered a broken nose and superficial soft tissue injuries as a consequence of an accident at the Sons of Gwalia mine on 9 May 1996 from which he had fully recovered.
In 2002 Dr Beinart referred Mr Suleski to Dr Pamela Levitt. Dr Levitt is a psychiatrist. She first saw Mr Suleski on 10 June 2002 and has continued to see him. Dr Levitt diagnosed Mr Suleski as suffering from a major depressive disorder and an anxiety disorder. She has treated him with a variety of antidepressant medications and referred him to Graylands Hospital where he received electro-convulsive therapy. Mr Suleski had only minimal and short‑lived response to that treatment.
In Dr Levitt's opinion Mr Suleski continues to suffer from a major depressive disorder and anxiety disorder. She considers it unlikely that his disorders will resolve because he has failed to respond to appropriate treatment. It is Dr Levitt's opinion that it is highly unlikely that Mr Suleski will return to the work or to his previous level of functioning. He will need to continue to take medication and be reviewed by a psychiatrist for the foreseeable future.
Shortly before giving her evidence Dr Levitt saw the films taken of Mr Suleski in 1996 and 1997. They did not alter her opinions. In her opinion there was little a psychiatrist could conclude from watching those films. It is her view that as a psychiatrist she needs to talk to a patient and take a history from the patient to form a diagnosis. Her opinion is that a psychiatrist does not form a diagnosis from looking at a patient and that the majority of patients who suffer from depression walk around and attend work.
Dr Julia Charkey‑Papp is a psychiatrist who treated Mr Suleski as a voluntary patient at Graylands Hospital. Dr Charkey‑Papp first saw Mr Suleski on 25 November 2002, on referral from Dr Levitt. She diagnosed Mr Suleski as suffering from a major depressive disorder. Dr Charkey‑Papp provided to Mr Suleski electro-convulsive therapy which consisted of six treatments.
Electro-convulsive therapy is reserved for severe cases of depression where other methods of treatment have failed. Mr Suleski was discharged from hospital on 18 December 2002 on completion of that treatment. In Dr Charkey-Papp's opinion Mr Suleski continued to require treatment for his depression on discharge.
Dr Charkey-Papp saw the films taken of Mr Suleski in 1996 and 1997. Her evidence was that she was quite surprised by Mr Suleski's appearance in those films and that he appeared to have deteriorated physically significantly since the times at which the films were taken. In her opinion it was not possible to say from the films that Mr Suleski was not suffering from depression at the times that the films were taken. Her reasons were that a person who is deeply depressed is capable of walking and visiting a shopping center. A person suffering deep depression will also have brief periods of time in which they can function reasonably well.

The reliability of Mr Suleski's evidence

Counsel for Sons of Gwalia submitted that Mr Suleski was deliberately not telling the truth when giving his evidence. He pointed to the difference between the evidence between Mr Loreck and Mr Suleski as to what Mr Loreck told Mr Suleski to do on the morning of 9 May 1996 and to the difference between Mr Suleski's evidence as to the time at which he first met Mr Loreck on 9 May 1996 He also pointed to the differences between Mr and Mrs Suleski's descriptions of the injuries Mr Suleski suffered and the evidence of Dr Derham and the records of Sir Charles Gairdner Hospital. Counsel for Sons of Gwalia also pointed to the films of Mr Suleski's activities taken in 1996 and 1997 and to his movements in the witness box, which he submitted were unrestricted at times.
Sons of Gwalia also called evidence of the records of the Bureau of Meteorology at Southern Cross on 9 May 1996 which showed that no rain fell at Southern Cross on 9 May 1996 and that 1 mm of rain fell on 8 May 1996. Mr Suleski's evidence was that it had rained during the night of 8 May 1996 and in the morning of 9 May 1996, and that it stopped raining in the morning. In my view the records of rainfall taken approximately five kilometres from the mine do not throw any doubt on Mr Suleski's evidence.
While I prefer the evidence of Mr Loreck to that of Mr Suleski on the events of 9 May 1996 it does not follow inevitably that Mr Suleski was intentionally dishonest in his evidence. I find that Mr Suleski has had problems with his memory since 9 May 1996 and this has affected his ability to recall the events of the day.
Mr Suleski's description of the physical injuries suffered by him was exaggerated. I do not find this to be intentional dishonesty. It was the evidence of a distressed man who is prone to be dramatic and who believes he was seriously injured.
Mr Suleski's activities recorded on the film and movements in the witness box were at times unrestricted. However they were not major activities or movements. At no time did Mr Suleski engage in significant physical activity. He appeared to me to be a person who believed he was disabled.
My assessment is that Mr Suleski is a dramatic person who exaggerates his symptoms and restrictions. There are parts of Mr Suleski's evidence that I do not accept. Mr Suleski has difficulty with his memory and there are aspects of his evidence that are not correct. However I do not find him to be an intentionally dishonest witness. My assessment of Mr Suleski is that it is his view that he suffered serious injuries in an industrial accident on 9 May 1996 and he gave his evidence consistent with that view and with his own dramatic personality.

Finding as to the practice at Sons of Gwalia's mines on the marking of the walls of the pit

Earlier in these reasons I have referred to the evidence of Mr Suleski and Mr Pridmore as to the marking of the walls of the pit. I also referred to the evidence of Mr Loreck that on 9 May 1996 he instructed Mr Suleski to stay with the excavator on the pit floor because he did not want Mr Suleski to go to the top of the face of the pit and pour lime over the edge.
I conclude from the fact that Mr Loreck gave an instruction to Mr Suleski to stay with the excavator because he did not want him to go to the top of the face and pour lime over the edge that Mr Loreck felt that there was a possibility that Mr Suleski might go there if he was not given an instruction to the contrary.
On the evidence of Mr Suleski, Mr Pridmore and Mr Loreck to which I have referred I conclude that at times pit technicians at the mine, including Mr Suleski, did mark walls of the pits by pouring lime over the edge of the walls.

Finding as to Mr Loreck's instructions to Mr Suleski on 9 May 1996

Mr Suleski clearly had difficulty recalling the events of 9 May 1996. His evidence was that he had difficulty remembering what had occurred because it was a long time ago. He also gave evidence that he has had difficulties with his memory since the accident. In my view the recollection of Mr Loreck is more likely to be correct. I accept the evidence of Mr Loreck that he told Mr Suleski to remain with the digger on the pit floor.

Finding as to physical injuries suffered by Mr Suleski

It is my view that the observations of Dr Derham and of the medical practitioners who saw Mr Suleski on 9 May 1996 are likely to be correct. As medical practitioners their training and their experience requires them to observe a patient and to record their observations. The observations of Dr Derham are confirmed by the observations of Mr Loreck.
Dr Derham did not observe any swelling of Mr Suleski's nose, but it was observed at Sir Charles Gairdner Hospital. I accept Dr Derham's evidence that a blow to the nose can leave no marks and take several hours to produce swelling.
I find that Mr Suleski suffered an abrasion to his left thigh and a fracture to his nose at the Sunbeam pit on 9 May 1996. I also find that when he was seen by Dr Derham on that day Mr Suleski was in a reduced state of consciousness which was caused by the same trauma which fractured his nose.

The cause of Mr Suleski's injuries

There was no direct evidence as to how Mr Suleski suffered his physical injuries. Mr Suleski's evidence was that his last recollection before he awoke in hospital was that he was looking over the pit wall. The description of the incident provided to Dr Stevenson by Mr Suleski recorded and recalled by Dr Stevenson does not refer to Mr Suleski leaving the floor of the pit, however in my view that absence does not lead to the conclusion that Mr Suleski did not leave the floor of the pit or that he has no recollection of doing so. It would be very simple for there to be a misunderstanding between Dr Stevenson and Mr Suleski, caused by Mr Suleski's limited English. It is clear that there were communication difficulties between the two men, although I am sure that Dr Stevenson did not appreciate that he was having difficulty understanding what Mr Suleski was trying to explain to him. On the second occasion that he saw Mr Suleski Mr Suleski showed him a photograph of the pit. In his report dated 5 November 2003 Dr Stevenson wrote that the photograph "showed a 50‑100m pit rather than the 5m pit described. When I confessed my mystification Mr Suleski said that there had been considerable further excavation since his accident. The photograph was therefore not helpful." Mr Suleski was unable to explain to Dr Stevenson how an open pit mine is created with benches and with walls between each bench.
In May 1996 Mr Suleski signed in an accident report that he could not remember what he was doing at the time of the accident or how he was injured. Those words were not written by him but he signed beside them. They were written by Mr Blyth when he was speaking on the telephone to Mr Suleski. The form was then sent to Mr Suleski and he signed beside the words that Mr Blyth had written. In view of Mr Suleski's limited command of English, the fact that the form was completed on the basis of a telephone conversation, Dr Derham's evidence as to Mr Suleski's physical and mental state at the time and the fact that Mr Suleski does not recall completing the accident report form, does not lead me to reject Mr Suleski's evidence that he went to the top of the pit wall.
I accept Mr Suleski's evidence that he went to the top of the pit wall to pour lime over the edge and that is his last recollection.
I also accept Dr Derham's evidence that the injuries suffered by Mr Suleski are not inconsistent with a fall of approximately five metres. On this issue I prefer the evidence of Dr Derham to that of Dr Kay. There are two reasons for that preference. The first is that Dr Derham saw Mr Suleski on 9 May 1996 and upon his return from Sir Charles Gairdner Hospital and so directly observed Mr Suleski's physical condition. The second reason is that as a general medical practitioner Dr Derham had more recent experience with the assessment of patients who have recently suffered physical injuries than Dr Kay. I conclude that the injuries suffered by Mr Suleski were the result of his falling from the edge of the pit wall.

Whether the injuries were suffered as a result of a breach of the duty of care owed by Sons of Gwalia

As his employer Sons of Gwalia owed to Mr Suleski a duty of care to avoid exposing him to unnecessary risk of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. This duty required Sons of Gwalia to provide a safe system of work for its employees and to have regard to the possibility of inadvertence or negligence on the part of its employees including Mr Suleski: McLean v Tedman (1984) 155 CLR 306. The content of the implied term in the contract of employment is the same as the duty of care owed in the law of tort: Matthews v Kuwait Bechtel Corporation [1959] 2 QB 57.
It was clearly dangerous for Mr Suleski to stand on top of the five metre high pit wall to pour lime over the edge. It was also unnecessary. The wall could be marked to a height of approximately two and a half metres from the pit floor, which would give adequate directions to the excavator operator.
If Sons of Gwalia had required or permitted Mr Suleski to go to the top of the pit wall to pour lime over the edge then in my view it would have been in breach of its duty of care to him. However the instruction Mr Loreck gave to Mr Suleski was to remain on the pit floor. Mr Suleski fell as a result of his disregard of that instruction. His injuries were suffered not as a result of any failure by Sons of Gwalia to satisfy its duty of care to him but as a result of his failure to follow the instruction that had been given to him by Mr Loreck. I conclude therefore that Mr Suleski has not established any cause of action against Sons of Gwalia.

Provisional assessment of damages

As I have heard all the evidence as to damages it is appropriate for me provisionally to assess Mr Suleski's damages in case I am wrong in my conclusion as to liability. I have set out my conclusions as to the physical injuries suffered by Mr Suleski. They were modest injuries which have not left him with any significant long term physical disabilities.
There was a significant variation between the medical practitioners as to whether Mr Suleski suffers any psychiatric illness. I have summarised the views of the various medical practitioners earlier in these reasons. The psychiatrists are in the best position to determine whether or not Mr Suleski suffers psychiatric illness because that is their training and experience and that is what they were considering when they saw Mr Suleski.
I prefer the opinions of Dr Walker, Dr Levitt and Dr Charkey-Papp that Mr Suleski suffers from depression to the opinion of Dr Kay. Dr Kay saw Mr Suleski only once, whereas each of the other psychiatrists has had the opportunity to see Mr Suleski on several occasions over a period. Dr Kay changed his opinion after he saw the films of Mr Suleski. I prefer Dr Walker's assessment of those films to that of Dr Kay. They show Mr Suleski doing very little other than walking, sitting and reading. They also show him as being treated as being disabled at the shopping centre and when there seemed to be some problem with the car which was attended to by Mrs Suleski.
I accept Dr Walker's evidence that Mr Suleski suffered an acute stress reaction to his fall and this reaction has caused Mr Suleski to suffer chronic symptoms of depression and anxiety. These symptoms are totally disabling and are likely to remain disabling.

I find that the failure of Mr Suleski to return to work was caused by his symptoms of depression and anxiety. These symptoms rendered Mr Suleski unfit for work. The failure to return to work did not break the chain of causation nor did it constitute a failure to mitigate Mr Suleski's loss.
Counsel informed me that the assessment of damages is to be made under the provisions of the Workers' Compensation and Rehabilitation Act 1981 which were inserted into that Act by the Workers' Compensation and Rehabilitation Amendment Act 1993 (Act No 48 of 1993).
Prior to his accident Mr Suleski was a hardworking man with a family. As a result of the accident he has become disabled from working and substantially disabled from enjoying not only working but also his family and any social activities. I assess his case as being 25 per cent of the most extreme case, so that his general damages would be $71,154.
For the year ended 30 June 1996 Mr Suleski's taxable income was $47,409 and his after tax income was $33,917. As his accident was on 9 May 1996 it may be that Mr Suleski's rate of earning for a full year was higher than those figures indicate. However there was no evidence as to what, if any, workers' compensation payments Mr Suleski received and so I cannot calculate how much higher his income may have been for a full year. For the year ended 30 June 1995 Mr Suleski's taxable income was $62,147 and his after tax income was $44,006. However in that year his employer changed from Reynolds Mining to Sons of Gwalia and he received a termination payment of $14,222.29 from Reynolds Mining, of which $5,123 was included in his taxable income. For the year ended 30 June 1994 Mr Suleski's taxable income was $20,105 and his after tax income was $18,037. However he commenced working for Reynolds Mining in February 1994 and so his annual income in that year does not reflect his income earning capacity as a pit technician.
It is not possible for me precisely to calculate Mr Suleski's income earning capacity as a pit technician at the time of the accident. I estimate it as being $920 a week inclusive of income tax and $700 a week after tax has been deducted.
For the period from 9 May 1996 to the date of judgment I assess his loss of earning capacity as being $291,800. Interest on that sum for that period at the rate of 3 per cent per annum is $69,984.
Mr Suleski was born on 14 August 1953 and there are approximately 14 years until he turns 65. Using the multiplier of 499.4 on a weekly loss of $700 provides a figure of $349,580. The discount I make for contingencies is 6 per cent so that the loss of future earning capacity is $328,605.
There was no evidence as to employer superannuation contributions. The average employer contributions contemplated by the superannuation guarantee legislation in the period since the accident is 7.5 per cent. I have adopted the method used in Jongen v CSR Ltd (1992) A Tort Rep 81‑192 to calculate the value of the lost superannuation contributions.
I calculate the past loss firstly by taking 7.5 per cent of $920 which gives a weekly figure for superannuation contributions of $69. For the period since 9 May 1996 that equates to a loss of $28,763. I add interest at the rate of 3per cent per annum to reflect the earnings that the contributions could have made in that period. I calculate that interest at $6,898 which gives a total figure for the past superannuation contributions and earnings of $35,611. I reduce that figure by 30 per cent for fund management fees and the like to give a figure of $24,963.
For the future the rate of superannuation contributions is 9 per cent. 9 per cent of $920 is $82.80. The present value of a loss of $82.80 for 14 years is $41,350. I deduct 30 per cent for fund management fees and the like and 6 per cent for contingencies to give a figure of $27,209 for the value of future superannuation contributions.
Mr Suleski tendered some chiropractic accounts and receipts and gave some general evidence about the cost of treatment but there is insufficient evidence for me to calculate past or future treatment costs. I would not allow the cost of chiropractic treatment as it has not been established that such treatment was reasonably necessary. There clearly has been some need for treatment and some will be required in the future. I would allow $7,500 for past and future treatment costs inclusive of interest.
There has been no evidence of income tax paid on any workers' compensation benefits received and I would give liberty to apply to prove that figure if Mr Suleski had succeeded on liability.
The summary of damages I would have allowed if Mr Suleski had been successful is:
General damages  $71,154.00
Loss of past earning capacity  $291,800.00
Interest on loss of past earning capacity                   $69,984.00
Loss of future earning capacity  $328,605.00
Loss of past superannuation contributions               $24,963.00
Loss of future superannuation contributions            $27,209.00
Past and future treatment costs  $7,500.00
Total$821,215.00