Walker v Newlands Northern Underground Pty Ltd - [2019] QSC 96

SUPREME COURT OF QUEENSLAND

CITATION:

Walker v Newlands Northern Underground Pty Ltd [2019] QSC 96

PARTIES:

DANIEL WALKER

(plaintiff)

v
NEWLANDS NORTHERN UNDERGROUND PTY LTD

(defendant)

FILE NO/S:

No S315 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

11 April 2019

DELIVERED AT:

Rockhampton

HEARING DATE:

18, 19 and 20 March 2019

JUDGE:

Crow J

ORDER:

1. Judgment for the Plaintiff for $999,506.50

2. The Defendant’s insurer pay the Plaintiff’s costs on the standard basis from 17 March 2016.

CATCHWORDS:

TORTS – NEGLIGENCE – GENERALLY – where plaintiff claims damages for injuries suffered in the course of employment with the defendant – where liability is admitted – where causation and quantum are remaining issues in dispute – whether plaintiff suffered subsequent chronic pain disorder – whether plaintiff suffered neuropathic pain as a result of the initial injury – whether plaintiff suffered psychiatric injuries as a result of the injury

Workers’ Compensation and Rehabilitation Act 2003 (Qld), 305D(1)
Workers’ Compensation and Rehabilitation Regulation 2003 (Qld), s 9

Tabet v Gett (2010) 240 CLR 537
Wichmann v Dormway Pty Ltd [2019] QCA 31
Grant v John Grant and Sons Pty Ltd [1954] 91 CLR 112
Kovan v Hail Creek Coal [2011] QSC 051

COUNSEL:

P Cullinane QC for the Plaintiff

G O’Driscoll for the Defendant

SOLICITORS:

Taylors Solicitors for the Plaintiff

BT Lawyers for the Defendant

Introduction

The plaintiff, Daniel Walker, sustained personal injury in the course of his employment as an underground miner on 7 April 2013. At the commencement of trial liability was admitted in full with counsel for the defendant, identifying causation and quantum as the relevant issues to be determined.
Mr Walker is currently 32 years of age having been born on 22 February 1987. Mr Walker has no formal qualifications having left school after completing grade 10. Mr Walker has worked in a number of different manual occupations prior to obtaining employment in the coal mining industry in early 2009. After commencing in the coal mining industry Mr Walker obtained a crane operator’s licence, a forklift driver’s licence, supervisor qualifications, a senior first aid certificate, a working in confined spaces certificate, and a work at height certificate.
On 13 July 2011, Mr Walker obtained employment with the defendant at the Newlands underground coal mine. Mr Walker was allocated to the development crew and was involved in working with a team of several crew members who were tasked to build roadways underground. Mr Walker’s unchallenged evidence was that he was extremely happy working underground at Newlands, that he considered it was the career path that he had been looking for the whole of his life and that he took a pay cut from his previous mining job to take up work at Newlands.[1] At Newlands, Mr Walker obtained “numerous black coal competencies”[2]
[1] Ex 1 paragraph 23.
[2] Ex 1 paragraph 152.
After working with the development crew from 13 July 2011 until March 2013 Mr Walker was redeployed to an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QSC 96
Decision Date: 11 April 2019

CaseChat Overview and Summary

The case of Walker v Newlands Northern Underground Pty Ltd involved a claim by the plaintiff for damages resulting from injuries sustained during employment with the defendant. The defendant admitted liability, but the issues in dispute were causation and the quantum of damages. The plaintiff alleged that he suffered subsequent chronic pain disorder, neuropathic pain as a result of the initial injury, and psychiatric injuries due to the injury. The Federal Circuit Court was tasked with determining these issues.

The court had to decide whether the plaintiff's chronic pain disorder, neuropathic pain, and psychiatric injuries were indeed a result of the initial injury. The court examined medical evidence provided by Dr. Salman and Dr. Goldston, who both confirmed that the plaintiff continued to experience pain and symptoms long after the initial injury and surgery. Dr. Salman had initially reported that the plaintiff was pain-free post-surgery, but subsequent reviews revealed ongoing complaints of pain. Dr. O'Callaghan, a pain specialist, diagnosed neuropathic pain, further substantiating the plaintiff's claims. The court also considered the restricted suitable duty certificate issued by Dr. Salman, which highlighted that the plaintiff was unfit for underground work due to the nature of his injury.

In its reasoning, the court found that the plaintiff's ongoing pain and symptoms were directly attributable to the initial injury. The evidence of continued pain and the necessity for a second opinion to address ongoing issues supported the plaintiff's claims of chronic pain disorder and neuropathic pain. The court also acknowledged the plaintiff's psychiatric injuries resulting from the initial injury and subsequent pain. Consequently, the court awarded damages to the plaintiff.

The court ordered that judgment be entered in favour of the plaintiff for $999,506.50, and that the defendant's insurer pay the plaintiff's costs on the standard basis from 17 March 2016.

Orders

Orders of the court

1. Judgment for the Plaintiff for $999,506.50

2. The Defendant’s insurer pay the Plaintiff’s costs on the standard basis from 17 March 2016.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In construing the Deed of Release, it is plain that the particular matter in the contemplation of the parties which was to be compromised was the plaintiff’s claim for unfair dismissal. The Deed expressly by Clause 3 exempts the operation of the Deed from the consideration of Mr Walker’s personal injury claim. I consider that the second proposition asserted by counsel for the defendant is incorrect.Medical evidence After performing the surgery on Mr Walker’s right hand on 14 April 2013 Dr Salman further examined Mr Walker on 26 April 2013. In Dr Salman’s report of 3 June 2013 Dr Salman recorded:[78]“I saw him again for follow up review on 26/04/2013. The surgical wound had healed well. He had an excellent range of motion in his finger and he was completely pain free. There was no reccurrence of the infection.”[78] Ex 21. It is not disputed that whilst being examined in his medical suite and not actively using his dominant right hand Mr Walker was completely pain free and had an excellent range of motion. That of course does not infer that Mr Walker had made a complete recovery from his injury. Indeed Dr Salman issued a restricted suitable duty certificate restricting Mr Walker from performing underground work, driving heavy machinery and advising that the wound ought to be kept clean and dry with “preferably office-based or supervisory duties”. It is apparent that the defendant complied with the request as best as it could by taking Mr Walker away from the heavy developmental duties and placing him on outbye duties however the outbye duties, although light, were underground and accordingly the wound could not be kept clean and dry. After Mr Walker’s return to work on 1 May 2013 he was first provided with the surface role as the Tomlinson Boiler Operator and then sent underground on outbye duties. Even on his first day at work Mr Walker not only experienced significant pain but reported significant pain to the Kinnect officer (named Kristy-Anne) who had been retained to assist him with his return to work. Mr Walker complained of ongoing painful symptoms to Kristy-Anne of Kinnect and to Mr Schneider the Safety Co-ordinator. There is no dispute that following his return to work, Mr Walker suffered significant pain whilst attempting to perform the lighter outbye duties. Mr Walker had attended upon Dr Goldston on 5 August 2013 who contemporaneously recorded his ongoing complaints of pain. Indeed on a review by Dr Salman in September 2013, Mr Walker continued to complain of the pain he was suffering from his injury which he had hoped had healed despite him undertaking all postoperative hand therapy and ingesting the prescribed medications. Dr Salman’s response to the complaints was to advise that Mr Walker continue to take painkillers as required and that he would need to get a second opinion “if there was an ongoing problem with him.” Clearly there was an ongoing problem and Mr Walker sought and received the second opinion from Dr O’Callaghan, the pain specialist, who has diagnosed neuropathic pain.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Walker v Newlands Northern Underground Pty Ltd [2019] QSC 96
PARTIES:	DANIEL WALKER (plaintiff) v NEWLANDS NORTHERN UNDERGROUND PTY LTD (defendant)
FILE NO/S:	No S315 of 2016
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	11 April 2019
DELIVERED AT:	Rockhampton
HEARING DATE:	18, 19 and 20 March 2019
JUDGE:	Crow J
ORDER:	1. Judgment for the Plaintiff for $999,506.50 2. The Defendant’s insurer pay the Plaintiff’s costs on the standard basis from 17 March 2016.
CATCHWORDS:	TORTS – NEGLIGENCE – GENERALLY – where plaintiff claims damages for injuries suffered in the course of employment with the defendant – where liability is admitted – where causation and quantum are remaining issues in dispute – whether plaintiff suffered subsequent chronic pain disorder – whether plaintiff suffered neuropathic pain as a result of the initial injury – whether plaintiff suffered psychiatric injuries as a result of the injury Workers’ Compensation and Rehabilitation Act 2003 (Qld), 305D(1) Workers’ Compensation and Rehabilitation Regulation 2003 (Qld), s 9 Tabet v Gett (2010) 240 CLR 537 Wichmann v Dormway Pty Ltd [2019] QCA 31 Grant v John Grant and Sons Pty Ltd [1954] 91 CLR 112 Kovan v Hail Creek Coal [2011] QSC 051
COUNSEL:	P Cullinane QC for the Plaintiff G O’Driscoll for the Defendant
SOLICITORS:	Taylors Solicitors for the Plaintiff BT Lawyers for the Defendant