Wright v New England Antimony Mines Nl

[2003] NSWSC 735

Reported Decision: (2003) Aust Torts Reports 81-716

Supreme Court

CITATION:	Wright v New England Antimony Mines NL [2003] NSWSC 735
HEARING DATE(S):	5-9, 12-16 May 2003
JUDGMENT DATE:	12 August 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Burchett AJ at 1
DECISION:	That the Plaintiff bring in, on a date to be fixed, short minutes of orders including entry of verdict for the Plaintiff.
CATCHWORDS:	Torts - personal injuries claim against employer - accidents in mine - additional claim for Raynaud's phenomenon caused by use of vibrating drills - effect of safety bulletins of Western Australia Mines Department as statements of responsible professional opinion about mining practices - defence that safer method would have been uneconomic in marginal operation - principles - what was involved in statutory duty of training as regards safety precautions - effect on damages of pt 5 of Workers Compensation Act 1987 NSW where separate accidents had occurred
LEGISLATION CITED:	Mines Inspection Act 1901, s56 Mines Inspection General Rule 1994, cl7, cl23 Workers Compensation Act 1987, s151G, s151H, s151M
CASES CITED:	Bankstown Foundry Proprietary Limited v Braistina (1986) 160 CLR 301 Fox v Wood (1981) 148 CLR 438 Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183 Griffiths v Kerkemeyer (1977) 139 CLR 161 Leppington Pastoral Co Pty Limited v Juweinat [2002] NSWCA 228 State Rail Authority of New South Wales v Cowan [2003] NSWCA 147 Woolage v The State of New South Wales [2001] NSWCA 256 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES :	Mr Donald Edmund Wright New England Antimony Mines NL
FILE NUMBER(S):	SC 20855/01
COUNSEL:	Mr P Semmler QC with Mr C Hickey for the Plaintiff Mr C Hoeben SC with Mr G Butler for the Defendnat
SOLICITORS:	Abbott Pardy & Jenkins Solicitors for the Plaintiff TurksLegal for the Defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Burchett AJ

Tuesday, 12 August 2003

20855/01 Donald Edmund Wright v New England Antimony Mines NL

Judgment

1 His Honour: In an area known as Hillgrove, at the edge of the escarpment not far from Armidale, gold and antimony have been mined for well over 100 years. Antimony, which in ancient times was used as a cosmetic, is principally used today as a fire retardant for plastics. At Hillgrove, it is found in narrow ore veins also bearing gold, and the viability of mining any individual lode will depend, among other factors, upon the combined values of the quantities of both metals to be obtained from that particular lode. During a period of some years from 1995, the defendant, which operated the mines at Hillgrove, was only able to do so at a loss, the price of antimony being very much depressed by growing competition from China, by far the world’s major producer. As a result, the mines were shut down in January 2002, although shortly afterwards two of the largest Chinese mines were struck by disasters, so that the price of antimony trebled, and it may be that mining at Hillgrove will at some stage be able to resume. This case arises out of the methods pursued in the mining operations prior to their closure, particularly in a mine known as the Metz mine, in which the plaintiff was engaged to do the especially arduous and highly skilled work of a rise miner. The plaintiff sues in respect of very serious injuries, claiming that they were caused by the negligence of the defendant in the conduct of the undertaking.

2 In order to understand the issues in the case, it is necessary first to appreciate the nature of the activities by which the ore was extracted at the Hillgrove mines, and in particular in the case of the Metz mine. The ore being mined at some depth (about three or four hundred metres) is in a narrow vein or lode contained within rock which, in a number of the Hillgrove mines, is granite, but in the Metz mine is slate or similar rock, the vein being perhaps 0.4 of a metre wide. It may be pictured as rather like a sheet hanging on a washing line and pushed away from the vertical a little by the pressure of a gentle wind so that the sheet is inclined at about 85 degrees to the horizontal, with some ripples, rather than just hanging vertically at 90 degrees. The section of such a sheet of ore being mined at any one time (called a stope) in the Metz mine, towards the end of the last decade of the 20th century, would generally be about 35 metres from top to bottom and 100 metres long; or, in a particular instance, it might be 50 metres long, as it had more often been earlier in the decade. Of course, drilling would have established that the vein extended much further, but I am speaking of a single section chosen to be mined in the one operation. The method of mining that stope would then involve starting with a horizontal tunnel or drive along the length of the vein for at least the 100 metres and a similar drive along the vein 35 metres deeper in the mine. In order, then, to mine the vein between these drives, it would be necessary to create a near vertical tunnel at one end of the 100 metres length for access to the section of the vein to be mined, to confirm the continuity of the ore, and to provide a pathway for circulating air for ventilation. The near vertical tunnel, known as a rise, also called a raise, would in fact be angled somewhat to facilitate climbing up and down it on steel ladders affixed to the lower side of the incline (known as the foot wall, the opposite side being called the hanging wall). In order to achieve an incline of some 65 to 70 or 75 degrees in the Metz mine, the rise would be angled longitudinally in relation to the vein or sheet of ore, although of course, since that vein would be only about 0.4 of a metre wide, the rise would necessarily be wider than the vein. At the same time, in narrow vein mining, a particularly important object of the exercise is to keep the width as narrow as possible since every extra bit of rock taken from outside the ore zone must have the result of diluting the metalliferous content of the total material mined. In giving an indication of how long the stopes in the Metz mine were generally, I am relying on the evidence of the mine’s general manager, Mr Bradley, who said that, whereas in the early 1990s the stopes were about 50 metres long, in the late 1990s, the period relevant for this case, “we ended up trying to make our stopes as long as possible… so we had… a hundred metre long stope”. Mr Bradley also pointed out that a rise between two levels 35 metres apart, put in at an incline of 65 or 70 degrees, would be 40 metres in length.

3 It is now possible to approach the central issue in the case, which relates to the hazards involved in the operation the plaintiff was required to undertake, and whether the defendant was negligent in failing to institute and maintain a safer system. The method generally utilised at the Hillgrove mines, and utilised exclusively at the Metz mine, for the creation of rises was the method known as ladder rising, or open-ladder raising. There are other methods which were referred to in the evidence, particularly the creation of rises by the use of a device known as an Alimak, and ladder rising, except for very short rises quite unlike those involved in this case, is only systematically pursued in Australia on a routine basis, it appeared from the evidence, in one other mine, the Central Norseman Gold Mine in Western Australia, which also has narrow veins. Ladder rising involves a single highly skilled miner ascending from the lower drive by drilling into the roof of rock above him an appropriately directed and spaced group of drill holes; setting charges of high explosive; blasting; directing water jets and compressed air up the section of rise excavated in order to dislodge loose rocks; inspecting the walls of the excavation and its roof, known as the back, with a hand-held light or his miner’s cap lamp; climbing up to the back by the use of a steel ladder which he has affixed in sections to the foot wall as he has progressed; using a scaling bar to prise off loose sections of rock which might otherwise fall upon him and to test the back and the side walls for drumminess which might reveal discontinuities below the surface of the rock and again require barring off of unstable pieces of it; and then beginning on a new cycle of the work by drilling the next set of holes for blasting, utilising a layback ladder to support himself and the weight of the compressed air drill and air leg, the layback ladder being a small section which hinges from the ladder itself near the top at an angle so as to rest against the opposite wall of the rise.

4 It is obvious from this brief description that very much will depend on the skill and diligence of the rise miner. Unless he succeeds in barring down every piece of rock which is unstable because the blasting, drilling or exposure to the air has made it so, or because of some discontinuity in the rock or some tendency in the rock to split, as slate is apt to do, he may be struck later in the operation by a falling piece of rock. As the rise progresses to a greater height, there is a greater area of rock from which this may happen, and also a piece falling from high up will be more dangerous. The barring down process, also called scaling, must be repeated from the top to the bottom of the rise, after every blasting. The incline of the rise means that slabs falling off the hanging wall, in particular, may fall some distance and then strike a rise miner who is on a ladder attached to the foot wall. As the work progresses, rocks in the wall will have been exposed to air and water, and the mere airing of them may have a splitting effect, depending on their composition. As the rise becomes higher, too, after each blast it will be more difficult to detect from the bottom whether there are pieces particularly likely to fall from the back, and the rise miner will be exposed for a longer period, while climbing the ladder, to the fall of such a piece before he can get to the top and bar it down. Consequently, the rise miner will “scurry” up his ladder after a blast in an attempt to shorten the time of his exposure to the greatest risk. These were the problems to which the mining engineer called as an expert in the plaintiff’s case adverted.

5 A clear demonstration that the seriousness of the dangers I have mentioned has always been recognised is to be seen in the fact, which no witness disputed, that, in the case of ladder rises, rise miners do not work in shifts because one miner will not take the risk that another, who worked in the rise on the previous shift, may not have barred down efficiently or with sufficient diligence. Thus one rise miner does one ladder rise, except in a case of real emergency as where the miner who started a rise becomes incapacitated. Nor will an offsider be brought into the rise, as he would be to assist the miners in the subsequent mining of the stope. These features of the method make the work slower, but are always tolerated.

6 To complete the picture of the method of mining in the pursuit of which the rises were created at the Metz mine, by the time of the plaintiff’s injuries, it is only necessary to state that this method, known as shrink stoping, involved the erection along the lower drive for the length of the section to be mined (I have referred to 100 metres as the length because there was evidence that this had become usual at the Metz mine, by the time of the plaintiff’s injuries, but it might be 40 metres or any other length up to about 100 metres) of a timber platform with chutes in it at intervals through which the materials mined might be drawn off into trucks travelling below the platform along the drive, and then the blasting of a horizontal slice from the bottom of the section of the vein and host rock to be mined for its full length (100 metres or some other length), which would fall to the timber platform. After the first slice, there would be a second, and so on. As loose rock blasted out takes up more space than solid rock in situ, the taking of a few slices would very soon exhaust all the space above the platform, and therefore it is necessary, fairly continuously, to draw some rock off through the chutes. That is why the process is known as shrink stoping, referring to the shrinkage of the expanded rock by the drawing off of some of it. In this way, slice after slice is taken until the whole of the section or stope has been mined. The thickness of each slice would, of course, be limited by the length of the drills used to place the explosives, while the width would have to be wide enough for men to work, and thus wider than the 0.4 of a metre which, in the case of the Metz mine, was the approximate width of the vein, but, as has been explained, would be kept as narrow as possible to reduce dilution of the ore.

7 It was in pursuit of his task as a rise miner in the Metz mine that the plaintiff, on two different occasions, suffered injuries for which he claims damages. Mr Wright, who was born on 6 January 1963 and left school in Uralla at the age of 14, having been what he himself described as a “pretty average” student, had spent most of his working life as a miner in the employ of the defendant. He had also worked as a farm hand. By late 1988, he began to do rise mining, the most skilled and highly paid category of mining work in the defendant’s mines. He received no particular training for it, but learned by experience. The angle at which the rises were inserted was, in general, around 70 to 75 degrees, and the rises he was doing averaged between 30 and 40 metres in length, the longest one being 56 metres. The stopes were usually around 40 metres in length, although, as I have said, the stopes in the Metz mine became 100 metres. They would not be longer than that because of the practical difficulty of extending services for greater distances. In the Metz mine, the plaintiff said, he was creating rises at a depth below the surface of some 300 to 400 metres in slate which was “more unstable” than the other rocks in which he had done this work. He said:

You cannot see faults behind [the] rock and that’s what was happening. … Once it was exposed to air or water it was like in sheet form and it had little seams of graphite in behind it and as I say once air and water got to it, it tends to weaken it and it can drop without warning.

Graphite, of course, is used as a lubricant, and it would tend to facilitate one layer of slate sliding on another so that, as the plaintiff said, “it would fall unpredictably”.

8 The dimensions of the rises which Mr Wright created, other than their length, were usually about 1.8 metres from the foot wall to the hanging wall and between 1.4 and 1.6 metres in width. The ladder he used came in sections 10 feet long, which he bolted to the top of the existing ladder and then attached to the foot wall by drilling holes nearly three feet into the wall. The ladder had round steel rungs. Mr Wright would climb up the ladder and would have to take all his equipment up by hand including an Atlas Copco drill weighing about 25 kilograms, an air leg weighing about 20 kilograms, two drill steels, a section of steel ladder, cables and hoses attached to the drill, explosives and detonators, bolts, pins and tools. He was not provided with an additional light; only his cap lamp. For every new section of the rise, the plaintiff would drill 16 or 17 holes, each two metres into the back in the direction of the rise, that is, a little off the vertical. Fifteen of these holes would be loaded with explosives and fired, the purpose of the extra one or two being to provide some space for the explosion to break into.

9 At about nine thirty in the morning on 14 January 1997, the plaintiff was hit on the back of the head and the neck and shoulders by what he described as “a big piece of rock”. He said it was

a big sheet which actually fell from behind me somewhere. I was actually leaning down to get a two metre steel from the ladder behind me. … I didn’t see where it come from, it come down in a big sheet and pushed me down between the vee of the two ladders [ie the layback ladder and the main ladder] . … [I] t fell into three pieces. … I’m not sure whether it was because it hit my head or the ladders that it broke.

Asked to estimate the size of the piece, Mr Wright said:

I drive a Holden and I would say it would be about half the size of that bonnet and probably at least a foot thick. It was just a massive big sheet.

10 Mr Wright was numbed down the left side of his body and experienced a flow of yellowish fluid from his nose. He said he thought he had broken his neck, and he stayed for some time in the vee formed by the ladder and the layback ladder about two metres below the top of the rise and 30 to 40 feet from the surface below. After about an hour he managed to climb down and went to hospital where, following an X-ray, he was told there was no bone damage detected. He reported the incident to the underground manager of the mine, Angus McDougall. He suffered a stiff neck thereafter for about three weeks, and continuing headaches. His neck was treated with physiotherapy, and he continued working, although with pain.

11 The accident in January 1997 was in the Metz mine. Mr Wright had worked as a rise miner, suffering relatively slight injuries from falling rock from time to time, in a number of other mines at Hillgrove called the Garibaldi, the Eleanora, the Sunlight, the Freehold and the Cosmopolitan as well as the Rockvale. But he said the others were different because the Metz mine “was far more unstable than the other mines”, the slate in the Metz being “more prone to falling”. Not only was the slate more prone to falling, but also it did not break up with blasting into such small pieces as the granite did in the other mines.

12 On 31 March 1998, when Mr Wright was again putting in a rise in the Metz mine, at about a quarter to two in the afternoon, he was hit by another rock. On this occasion he was climbing down the rise and had reached the second last ladder section, being about 12 to 15 feet from the bottom, having attached the explosives, and having a roll of bell wire around his arm to hook it into the main firing line. This rise had reached the stage of being “more than 20 metres” above him. Immediately before he was struck, he heard some rock hitting the ladders on the way down, and he said he was trying to climb down “as fast as I could”. He was hit on the top of the head and dislodged from the ladder. After falling, he saw the piece of rock, which was a chunk of slate “about the size of a soccer ball”. Of course, he was wearing a helmet at the time. He said he lay on the ground for a while feeling numbness again down the left side, and then staggered to where two other miners were working, who took him to the surface. He was driven home.

13 This accident, like the first one, was reported, and the report form was tendered in evidence. It shows that the rise involved was a “vent rise”, that is, as Mr Wright explained, “it was going to be used for ventilation”, not as a rise from which a stope was to be mined.

14 Following the second accident, the plaintiff again had a nasal drip, and felt very sore. He went to a medical centre where he saw Dr Chapman, a general practitioner, who arranged for an X-ray. Mr Wright went back to the mine the next day on light duties, resuming full duties after about three weeks. He described himself as suffering pain which “was just getting worse and worse as it went on, as time went on… [in his] head and [in his] neck”. His arms were very numb, both of them, a symptom he had not had prior to this accident to the same degree. Similarly, the pain in his head and neck “got worse after the second accident”. He again had physiotherapy and was told “there was no bone damage”. As the rest of the year 1998 unfolded, he was finding it “was getting harder and harder to manage” his work; it “was very painful to do it and [he] found that [he] was passing out”. He spoke to several senior people at the mine, including the general manager, Mr Bradley, telling them that he did not think that he could continue to mine because he “would be a danger to [himself] or to someone else”. That resulted in him seeing a Dr Hunter McEwin who examined him on behalf of the defendant early in 1999. Mr Wright was also referred to a neurosurgeon, Dr Sheehy, whom he saw on 7 May 1999, following which he had facet joint injections on each side of the neck which gave him no relief. He also had an MRI scan, a cervical myelogram and a CAT scan. In June, he was seen by Dr Darveniza, a neurologist at St Vincent’s Hospital, where he spent a couple of days having tests. He continued working on light duties, but in considerable pain. As a consequence of the continuing pain, Mr Wright’s marriage relationship deteriorated quite rapidly, having previously appeared stable on the evidence, and in about June or July 1999 he moved to a separate flat, largely because he feared that his own reactions might lead to harm to his two young children. He has continued to see them regularly and they are his principal source of pleasure in his present state.

15 On 1 August 1999, Mr Wright was admitted to St Vincent’s Private Hospital under Dr Sheehy for a decompression and fusion operation on his neck at the C5/6 level, the disc being removed and replaced with a titanium cage and the intervertebral disc space being packed with bone. For about three months following this operation, Mr Wright obtained some relief from his pain. At that time, he was living in his flat in Armidale and his sister Mrs Sue Godwin was visiting regularly to do domestic chores for him. She continued to give him assistance until the end of March 2003.

16 On 22 November 1999, the plaintiff was readmitted to hospital under Dr Sheehy for bilateral occipital blocks. These were injections into the back of his neck which were painful at the time and had the effect of numbing the back of his head. It has remained numb since, but that has not in fact been of much help because the area of pain in his head is behind the eyes, and has continued. The plaintiff returned to light duties after this procedure, and again on 27 March 2000 he was admitted to hospital and seen by Professor Champion, a pain management specialist. Professor Champion prescribed Endone, a morphine-based drug, later changed to Oxycontin, a slow release form of morphine, which the plaintiff has continued to take ever since.

17 On 30 August 2000, Mr Wright was admitted to St Vincent’s Hospital again for a further myelogram and CAT scan, following which on 7 September 2000 Dr Sheehy performed a further operation to decompress the nerve roots at the C5/6 level. Mr Wright said that this further operation was “very painful. I’d never felt anything like it.” There was some improvement in sensation in his hands, but the headache and neck pain persisted. He was off work until 14 November 2000.

18 On 19 February 2001, Mr Wright saw Dr Darveniza again, who recommended that he continue with the Oxycontin, with Capadex, and also Endep, an antidepressant. Mr Wright had never felt depressed before his injuries. But he was not getting, and still does not get a full night’s sleep. Often he has to get up and have a hot shower to try and relieve the pain. He continued doing light supervisory duties at the mine until 13 January 2002, when this work ceased to be available to him because the Hillgrove mining operation had effectively closed down. He has not worked since, and has not felt fit for work. He had been kept on to do light supervisory work, and had done it “when I could”, but had not really been fit for some time, even for that.

19 In February 2002, a surgeon in Armidale performed a carpal tunnel decompression on Mr Wright’s right arm, which was effective for the arm cramp he had been suffering. Also, in the first half of 2002 he was admitted to Tamworth Base Hospital for three days for an intravenous infusion of Lignocaine, which only helped very temporarily. He had a further infusion in the hospital of a different drug later in the year, but again without lasting relief. He continues to see a local general practitioner, Dr Henschke, who gave evidence of his own persistent, but unsuccessful, attempts to find some solution for the pain Mr Wright is suffering. On 4 March 2003 Mr Wright saw a Professor Cousins at the Royal North Shore Hospital pain clinic on referral from Dr Henschke. Professor Cousins has put him on an additional drug, Neurontin, which is not a cure but has helped “to an extent”, and recommended a pain management programme, which the plaintiff would like to commence when his resources permit him to do so. The plaintiff continues to suffer “very severe” pain which “doesn’t go away”, being “there all the time”. His pain is both a constant headache and a constant neck ache. His neck, of course, has also been stiffened by the operations.

20 The plaintiff has a separate problem of numbness, and also pain, in the fingers of both hands, which has been diagnosed as due to Raynaud’s phenomenon, to which I shall refer later in these reasons because it is the subject of a separate basis of claim.

21 The plaintiff’s case in respect of the two incidents when he was injured by falling rock, while putting in ladder rises at the Metz mine, was supported by the evidence of a number of miners who had worked there, and who confirmed the instability of the slate rock containing the ore, and its tendency to peel away and fall. It was also supported by the expert evidence of Mr Dorricott, a principal mining engineer with Australian Mining Consultants, the largest specialised mining engineering consultancy in Australia. Nearly all Mr Dorricott’s work is associated with underground metalliferous mining, and he has an impressive background of knowledge and experience, having taught rock mechanics for ten years at the University of Ballarat, having also taught at the Western Australia School of Mines, and having had practical experience in the design and management of underground mining operations. Mr Dorricott is currently the project manager of a feasibility study for a proposed new underground gold and antimony mine in Victoria which, like the Hillgrove mines, would involve narrow vein mining. Mr Dorricott said that he himself would not “consider ladder rising”. He gave the reason: “because I do not believe ladder rising is safe”. He said he knew about and “had personal experience of” ladder rising in Australia in the 1970s, but he said: “there’s very little ladder rising carried out in Australia now.” He said the reasons were safety, the physical difficulty of ladder rising “which makes it very hard to get people who are prepared to do it”, and the availability of an alternative method. Asked about the extent of ladder rising done in Australia in the last five or six years, he answered:

As a routine systematic part of a mining operation I am only actually aware of one mine in Australia that’s doing it regularly. That’s the Central Norseman Gold Mine in Western Australia and there are – there would be – other mines that would occasionally put in a short rise using ladders, but I would say these would be short service rises just making a little connection from one place to another. They would not be something they do on a regular basis as part of their mining method.

He specified the height of those occasional rises as six to ten metres.

22 Mr Dorricott also said that:

There are now very stringent guidelines put out by the Department of Mines in Western Australia regarding the issue of different rising methods and they have ranked them in a hierarchy according to the safety aspects and they recommend that if possible, all rising should be done by non-entry methods, which is a method where there is no miner in the rise, such as raise boring or long hole rising, and then if an entry method is required, they recommend that it be done using mechanical equipment such as an Alimak or a gig rise or cage where a protective platform is available, and that ladder rising should only be used as a last resort and only under conditions where the safety is reasonably as good as it can be.

Mr Dorricott also gave evidence, which was uncontradicted, that in the Central Norseman Gold Mine, the one mine where ladder rising is systematically used, “the reefs are much flatter” so that “they are further inclined away from the vertical”, being:

typically around 45 degrees but in the mine where I am aware they are using ladder rising as part of their mining methods, they are actually even flatter than that, they are down around the 30 degree mark.”

In addition to that, these “rises are generally much shorter. The distance between the sub-levels is only approximately 14 metres so the rises are much shorter.”

23 Mr Dorricott described ladder rising, such as was practiced at the Hillgrove mines, as “an inherently unsafe method of rising and there is no way that you can make it safe”. He said that scaling is:

never a guarantee that a rock won’t fall at a later stage. Scaling removes the identifiable loose rock at the time when you conduct the scaling but it’s possible that there are loose rocks which were not obvious or rocks that were not loose at the time but become loose during the next stage of drilling.

He also referred to the fact that:

rock is not a manufactured material, it’s a natural material that has been subjected to dramatic changes in pressure and temperature and it has inherently what we call discontinuities throughout. Some rock masses have a lot more discontinuities than others and these discontinuities allow the rock mass to break up into smaller pieces of rock and these discontinuities are not all visible from the edge of an opening, some of them may be parallel to the wall of the opening and back in the rock mass and you can’t see them.

He said it was typical of slate, in particular, that “the bonding together of the layers one to the other is not very good”, with the result that scaling may not be able to achieve stability. On this point, he concluded that “in the absence of rock bolts there is no way of preventing the successive falling off of rocks in that laminated rock structure”. The use of rock bolts was not generally practicable in the rises in the Metz mine, because of the confined space.

24 It was pointed out in the evidence that the Department of Mineral and Petroleum Resources of Western Australia has a vast experience in the problems of mining, and its views are heeded by responsible mining engineers all over Australia, by whom, Mr Dorricott said, they are “regarded as extremely valuable and high level advice on what the current thinking is in regard to mining practices”. He made particular reference to a Safety Bulletin issued by that department on 29 May 1998 (referred to as Safety Bulletin No. 39). This concerned methods of rising in mines (also called raising). Under the heading “LADDER ACCESS IN OPEN RAISING”, adverting to the method to which I have referred as “ladder rising”, the bulletin states: “this method of work presents the widest spectrum of hazards and the highest level of associated risks.” The bulletin lists a series of what it describes as “non-entry methods”, that is, methods not involving a miner actually working in the rise, and then states: “of the entry methods, which all involve drill-blast, the Alimak system presents the least hazards and the most readily managed risks.” It refers also to another method known as “cage raising”, and then continues:

When the practicability of the above vertical development methods have been assessed, and ladder raising has been determined to be the only option practicable (in the legal sense defined in s.4 of the Mines Safety and Inspection Act) [this of course does not apply in New South Wales] , then every precaution must be taken. … The following precautions are considered to be the basic minimum for open-ladder raising: [emphasis original]
- Inclination not to exceed 60° from the horizontal.
- Cross-section to be as small as practicable consistent with safe use of the equipment; (normally not greater than 1.2m to 1.5m square).
- Length should not exceed an absolute maximum of 20m but in any case should be no longer than can be examined with a strong hand light from the raise entrance.
… … …
- A powerful hand light must be available to inspect the raise after blasting and wash down and before re-entry.

25 Although this safety bulletin was issued by the State Mining Engineer of Western Australia on 29 May 1998, Mr Dorricott’s evidence was that it represented the accumulated wisdom of many years of mining and “was a clear enunciation of what people had been thinking for some years in the industry … what had become accepted practice”. On that basis, it seems to me to be significant that, in a number of respects, the practices followed at the Metz mine did not nearly measure up to what the bulletin described as “precautions … considered to be the basic minimum for open-ladder raising”. In the Metz mine, the inclination of the ladder rises generally exceeded the maximum of 60 degrees, being from 65 to 75 degrees. The length of the rises greatly exceeded what the bulletin stated to be “an absolute maximum of 20m”, being generally about 40 metres, or double that absolute maximum. The rises in the Metz mine also infringed the cumulative requirement in respect of length that they “should be no longer than can be examined with a strong hand light from the raise entrance”; no strong hand light was provided, but the evidence indicated that, in any case, such a light would not have enabled examination from the raise entrance of a raise anything like 40 metres in length in the Metz mine. The evidence was that the light in fact provided to Mr Wright would not enable him to inspect the rise effectively over a greater distance than about ten metres. An earlier departmental guideline, issued in Western Australia in May 1997, also emphasised the need for “adequate illumination” and “adequate inspection of the face, walls and backs from a safe area” in relation to barring down and scaling, and noted that “[g]round conditions in an area can change with time for a number of reasons including … vibrations from drilling and blasting operations” and “time dependent behaviour of the rock”.

26 Mr Dorricott’s evidence was not confined to criticism of the use of ladder rising for rises of the nature of those created at the Hillgrove mines. He explained that the rises in question could have been created by the use of an Alimak, a piece of equipment which the defendant possessed and had used in at least one of the Hillgrove mines other than the Metz mine, the Bracken’s Spur mine. When a rise is created using an Alimak, a climbing rail is bolted to the hanging wall of the rise with grooves in it to take the climbing mechanism of the Alimak. The one owned by the defendant, but rarely used, was pneumatically powered; however, they may also be diesel powered or electrically powered. They come in different sizes, but each Alimak has an enclosed cage in which miners and equipment may be transported up the rise, through the top of which, by raising a trapdoor, access may be gained to a working platform above it which is itself surmounted by a rigid steel mesh canopy to provide protection from falling rocks. The construction of the canopy using steel mesh has the advantage that a drill or a scaling bar may be poked through the mesh into the back of the rise without the miner exposing himself to the risk of being hit by a falling rock. He may also work around the canopy, but if the rise is kept to dimensions only slightly greater than the length and breadth of the canopy, it is obvious that his exposure will be slight, at any rate compared to the situation of a ladder rise miner clinging to his ladder with no overhead protection. It is possible for a single rise miner to work from an Alimak, just as a ladder rise miner works alone, but, with the Alimak, it is also possible to have an offsider standing in the suspended cage beneath the working platform, from where he can pass up tools and equipment to the rise miner working on the platform.

27 Mr Dorricott gave evidence that, over a period of four and a half years, he was employed at the Mount Lyell Copper Mine in Tasmania, where he designed and produced drawings for Alimak rises, and also supervised a rising crew using an Alimak. The smallest rise created there with an Alimak was about six feet by six feet, or perhaps six feet by five feet. Mr Dorricott expressed the opinion, having heard the evidence of the miners involved in the work at the Metz mine:

Based on the information that I have heard I believe Alimak rising would have been a viable alternative.

The defendant contested the ability of an Alimak to follow small variations in the incline or direction of the lode, but Mr Dorricott did not accept that this would pose any practical difficulty. He did accept that the minimum size of rise would be slightly larger, using an Alimak, but only slightly larger, than a rise in the Metz mine created by the method of ladder rising. The minimum size of the rise using an Alimak would be 1.8 by 1.8 of a metre. Comparing this with what Mr Wright was achieving by ladder rising, there would be an additional strip of waste rock averaging 0.3 of a metre thick by 1.8 of a metre wide, extending for the length of the rise. But Mr Dorricott did not think that strip of additional waste rock would extend for the length of the stope. In his view, the widening of the rise would not “necessitate the widening of the stope”. In the case of the 100 metre stopes which Mr Bradley said he had moved to in the Metz mine, Mr Dorricott calculated that the percentage increase in dilution resulting from the widening of the rise would be 0.54 of one per cent. In a shorter stope of 60 metres length, it would be 0.9 of one per cent. This would bring an increase in costs, but not in the same percentage, both because the increase in costs would occur only in some of the variable costs (eg handling of waste rock) and also because there would be compensating economic advantages, as well as costs, arising out of the use of the Alimak. In a long-term programme of rising, Mr Dorricott said:

Without actually doing any cost analysis at the individual mine, I would say that overall there would not be a significant difference in the unit cost of rising by Alimak or ladder rising.

28 In the case of the unstable walls of rises created in the slate rock of the Metz mine, a quite separate advantage of Alimak rising would be the ability to bolt the walls with rock bolts from the Alimak, in order to secure the long term stability of the rise.

29 But, for the defendant, it was asserted that the slight increase in the width of the rise would, in practice, be continued in the mining of the stope, so as to dilute the ore further. Mr Dorricott accepted that there could be a transitional stage of reduction of the width blasted out:

Yes, the first round [of blasting] in going from a 1.8metre wide down to a 1 metre wide, you would probably have a transition from one width to the other, but you do that in the space of a round which is about 1.8 metres. You wouldn’t carry the extra width forward for tens of metres along the line of the stope.

He described the suggestion that you would as “absurd”, and later reiterated that he could see “no basis for that line of argument at all”. Allowing for the transition, he adjusted his previous figures for the percentage increase in dilution that would result from the use of an Alimak to 2 per cent for a stope 40 metres in length, or still less than 1 per cent for a stope 100 metres in length.

30 The defendant’s general manager, Mr Bradley, gave evidence to the effect that the problem of dilution was the major obstacle to the use of an Alimak in the rises in the Metz mine. Of course, this problem could only have applied to rises from which stopes were to be mined. The plaintiff’s second, and more severe, injury was sustained in a ventilation rise. In any case, not only was the view of Mr Bradley, who had never actually tried to use the Alimak in the Metz mine, directly contradicted by Mr Dorricott, who had had experience of the use of an Alimak in the Mount Lyell mine in rock conditions similar to those existing in the Metz mine (Mount Lyell had shale and schist; the Metz slate), but there seemed to me to be a serious flaw in the logic of that view. For what Mr Bradley was saying was that the stope would be too wide because of the greater width of the rise, so special and difficult measures would have to be taken to bring it back to the correct width. But the evidence was far from suggesting that this problem, if it occurred, would be a consequence of the use of an Alimak. In fact, a miner who worked in the Metz mine at the relevant time, from 1996, Mr Roberts, gave evidence that a practice was followed, “quite routinely over Metz”, of cutting what were called “pillars” in stopes in order to reduce the width of the stope. He had himself “cut a lot of pillars in that country” in order to “secure the ground to bring the … width back to reasonable size”. So the problem was already there because of the nature of the rock, and the remedy was known and was used. The defendant’s expert, Associate Professor Laurence, expressly conceded that “with proper application of modern methods you could confine the expansion [of the width of the stope] to the transition stage”. It was put to him that, as a result, “the total increase in costs would be of the order of 1 to 1.5 per cent”, to which he replied, not that something quite different would be involved, but: “I can’t agree because I don’t have the figures”. Of course, as Mr Dorricott pointed out, there would be compensating economic advantages to set off against such an increase in costs associated with dilution of the ore.

31 Mr Bradley disputed the evidence of the plaintiff that the rises he made in the Metz mine were 1.4 to 1.6 of a metre wide. He suggested 1.3 to 1.4 would be too much. But there was evidence that Mr Salgo, the underground manager at about the period when the plaintiff’s accidents occurred, had estimated the rises were approximately 1.4 of a metre wide and 45 metres in length. Mr Salgo had also made a comment to the effect that a rise “is particularly dangerous after the use of the high explosives as rocks are loosened and often fall”. He was not called to give evidence, nor was his predecessor as underground manager, Mr McDougall. There was no suggestion that either was unavailable. In my opinion, on all the evidence, there was a difficulty in the Metz mine, both with the rises and the stopes, in the maintenance of a predetermined width, because of the tendency of the slate to peel off in layers, and I accept the evidence of the plaintiff as to the width of the rises. I also accept the evidence of Mr Dorricott that, as a consequence, the use of an Alimak would not have made a significant difference to the overall cost of the mining operations, even without taking into account indirect benefits, which would have been real, though they are hard to quantify, such as reduced loss of time through injuries to rise miners, and less pressure for increments to wages in the nature of “danger money”. For the defendant, it was argued that Mr Dorricott’s views were theoretical, whereas Mr Bradley had practical experience of mines at Hillgrove. But Mr Dorricott actually had considerable experience with Alimak rising, while Mr Bradley had made little use of the defendant’s Alimak, and none in the slate rock of the Metz mine.

32 Mr Bradley, in cross-examination, admitted there was “an inherent high level of risk” with ladder rising. I have already set out the views of Mr Dorricott about that, which he supported by reference to an official bulletin issued in Western Australia. But, for the defendant, reliance was placed on the evidence of Associate Professor Laurence who said he “wouldn’t concede” that “the practice of ladder rise mining for rises of greater than ten metres is inherently unsafe”. He also said:

No, I believe, as it was practised at New England Antimony, there were hazards and the hazards were being managed, or the risks were being managed as a result of those hazards.

Asked specifically, “You did not think that the methods used at Hillgrove, in particular the ladder rising method, was unsafe?” he answered: “No, I did not think it was unsafe”. After the scaling procedure had been carried out, he asserted “a skilful miner would have removed the risk of falling rocks”, and again, if the scaling or barring down after blasting “is done properly, the back or face and the walls will be stable indefinitely”. But, pressed in cross-examination with the evidence of miners who had actually worked in the Metz mine, he reluctantly admitted that this “was an exaggeration”. Nevertheless, he maintained his disagreement with the views expressed in the Western Australian bulletin, as well as those of Mr Dorricott. But he conceded that the “ground conditions” described by the miners who gave evidence could be regarded as “very poor”, and finally, after much hesitation, when it was put that “assuming … there was a rise corresponding to [the miners’] description”, the “rise shouldn’t be more than 20 metres” in length, he said: “Yes, I think I’ll grant that”. He also eventually conceded that the lack of illumination presented “an unnecessary risk … because you can cheaply and easily provide him with a proper lamp to illuminate the distance”. Having considered the evidence of Associate Professor Laurence in the light of these concessions, and of all the evidence, I prefer the views of Mr Dorricott, which I found very persuasive.

33 In my opinion, the defendant was negligent in employing the plaintiff to perform work in accordance with a system that was known to be inherently dangerous, and, additionally, in that such precautions were ignored as might have reduced the risks, though only a different system could have eliminated them or made the work reasonably safe. The precautions ignored were those referred to in the Western Australian bulletin which embodied knowledge that had been widespread in the profession of mining engineering for a number of years and was certainly available to the defendant. A much safer alternative system of work was also known and available, the method of Alimak rising. I am satisfied this method would have been practicable in the Metz mine. Even if it had not been, the dangers of the system pursued there were so serious in the particular rock conditions prevailing that no ladder rising of the kind referred to in evidence, nor anything similar, was consistent with the taking of reasonable care. While I accept Mr Dorricott’s evidence and conclude that the economic advantage Mr Bradley thought he gained by the use of ladder rising in the Metz mine was illusory, I also conclude that if it had been real it could not have been sufficient to justify the degree of risk of severe injury that it entailed.

34 The last conclusion involves what, in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, Mason J saw as a balancing of considerations. I refer to this passage as cited by Mason, Wilson and Dawson JJ in Bankstown Foundry Proprietary Limited v Braistina (1986) 160 CLR 301 at 306:

The perception of the reasonable man’s response [to the risk of injury] calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

35 In Braistina (at 308-309), their Honours considered further the nature of the balance to be struck where a plaintiff is alleged to have been exposed to “unnecessary risks of injury”, pointing out:

If protective measures are reasonably open to an employer then ordinarily they will not unduly impede the accomplishment of the task. The extent to which the proposed measures would unduly impede that accomplishment will bear directly on the question whether it was reasonable to expect them to be undertaken. [Emphasis original.]

It was the test posed by this question that the defendant failed; for the risk it took when it rejected the alternative system was not “a bare possibility of a known risk which … had never eventuated”, to use the words of Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183 at 222, but a significant risk acknowledged by responsible professional opinion and demonstrated by observed instability in the Metz mine, although previous rock falls there had not caused permanent disabilities. (One previous “large falling rock, a slate rock” had injured the plaintiff’s shoulder on 28 February 1996, but he had made a “full recovery” by July 1996 after physiotherapy.) Nor was the choice between a mine with ladder rising that was plainly viable and a mine with an Alimak that was plainly not. Both parts of such a proposition would be wrong: the mine was at best marginal, and within quite a short time it failed; nor would the Alimak have contributed appreciably, even if at all, to that failure. From this point of view, too, the case contrasts with Graham Barclay Oysters Pty Ltd v Ryan , from which, somewhat hopefully, the defendant sought comfort.

36 In the Statement of Defence, contributory negligence was pleaded, but this issue was not pressed in argument, and in my opinion rightly. Nothing emerged in the evidence to justify a view that the plaintiff contributed to his own injuries by any careless act or omission. I am satisfied that, on each occasion when he was injured, he was pursuing the task he was employed to carry out with care, skill and diligence.

37 My conclusion that the defendant is liable in negligence, and that the plaintiff was not contributorily negligent, makes it unnecessary to consider the plaintiff’s alternative claim for breach of statutory duty, brought in reliance on cl 23 of the general rules given force by s56 of the Mines Inspection Act 1901 (NSW). Clause 23 provided for a number of obligations compliance with which “the manager of a mine must ensure”, including:

a) operations are carried on in such a manner as to avoid danger to persons from falls of ore, rock or other substances.

But the defendant argues that this does not create a private right of action, nor does it specify a precise obligation to be performed. That argument I will leave for another day.

38 Earlier in these reasons, I referred in passing to a further claim that is made by the plaintiff. This is a claim, again brought both in negligence and for breach of statutory duty, in respect of a condition of his hands which has been diagnosed as Raynaud’s phenomenon, also known as “white fingers” or HAV (hand arm vibration). The plaintiff’s case, in relation to this, is that it was caused by long-continued repetitive use of an air drill in his work for the defendant; that the risk of the condition so developing was or should have been well known to the defendant; that no warning, appropriate training or (for many years) medical examination to detect the problem in its early stages was offered to him; and that other measures to reduce the risk, such as job rotation or reduction of the vibration by changes in the method of work, were not adopted.

39 The defendant accepted it was reasonably foreseeable that use of the Atlas Copco Panther air drill, the drill provided to miners in the Hillgrove mines, might lead to the development of Raynaud’s phenomenon, and conceded no warning was issued. But the chain of causation was said to be incomplete, and breach of duty was denied on the basis there was no reasonable alternative available. So far as rotation of duties was suggested, the defendant pointed out that the work of a rise miner, in its nature, involved rotation of drilling with other activities not subjecting the worker to vibration. In any case, the defendant argued, the plaintiff, if warned, would have continued with his highly paid work, rather than forego any of it, just as he did continue after requiring surgery on one arm for a carpal tunnel problem, notwithstanding his knowledge that the drilling could lead to the same problem in the other arm.

40 So far as breach of statutory duty was said to have arisen out of cl 7(3)(b) of the general rules under the Mines Inspection Act, which required the manager of a mine to “ensure that persons who work at the mine … have been adequately and appropriately trained”, the defendant argues that the training in question does not include a health warning, but is relevantly limited to instruction in the use of the drill. I do not agree. It seems to me that, if good practice requires a suspension of non-stop drilling from time to time, adequate training would include instruction to that effect. And if pursuit of an activity the subject of training requires some warning, adequate training would include the giving of that warning.

41 The defendant’s other points have greater substance. Before saying anything further about them, it is convenient to indicate the relevant medical evidence. Perhaps the most comprehensive analysis of this part of the plaintiff’s condition is that made by Associate Professor Conolly, a hand surgeon, who examined Mr Wright for the defendant. He referred to the left carpal tunnel operation in 1992, to the cervical injuries, and to the plaintiff’s “recurring white fingers” with “some swelling of the fingers of his right hand and numbness of the fingers of the left hand”. He noted the whiteness, affecting all digits, “was not quite as frequent since he stopped drilling”. Associate Professor Conolly diagnosed: “Raynaud condition. Under control. No significant residual impairment.” He thought it developed “about 1999” and “[r]epetitive handling of vibrating equipment [was] probably the cause”.

42 Reviewing Mr Wright in October 2002, the Associate Professor suggested the vibration operated by aggravating a predisposition, but added:

It is also possible that the head and neck injury of January 1997, caused cervical nerve root irritation, which could be partly responsible for the Raynaud condition and also [responsible for] the present numbness in both hands and arms … The prognosis depends on his cervical spine problem, not his hand problem.

In the plaintiff’s case, Associate Professor Champion gave evidence to broadly similar effect. Although Dr Henschke used the word “painful” with reference to the plaintiff’s Raynaud’s condition, he also described it as “a nuisance”, the basic treatment for which was to “stay warm”. I understood him to regard it as a small matter in the overall context of the plaintiff’s grave situation.

43 All three of the plaintiff’s claims are subject to the provisions of Part 5 of the Workers Compensation Act 1987 (NSW) as it stood at the relevant times. For a case subject to these provisions, s151G(2) provided:

The amount of damages to be awarded for non-economic loss [defined by s149 to mean pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement] is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.

44 Section 151G(3) then specified a maximum amount, which “may be awarded only in a most extreme case”, and which, by s151M(3), might not be increased by an award of interest. From time to time, this figure was adjusted by amendments, and the parties were agreed that at 14 January 1997 it was $221,650, whereas at 31 March 1998 it had been raised to $226,650. By further provisions of s151G, if the proportion assessed under subs(2) was less than a specified amount, no damages might be awarded for non-economic loss, and in a case falling between that amount and a specified higher amount, such damages might only be awarded upon a reduced basis. The parties were agreed that the cut-off amount which eliminated damages for non-economic loss was equivalent to 17.6 per cent of a most extreme case, and the reduction formula would apply where the proportion assessed was between 17.6 per cent and 23.5 per cent. In addition to these restrictions upon awards for non-economic loss, it was not in dispute that s151H, at relevant times, contained provisions the effect of which was that no damages were to be awarded for economic loss unless the damages for non-economic loss in respect of the injury in question exceeded the equivalent of 23.5 per cent of a most extreme case.

45 In Woolage v The State of New South Wales [2001] NSWCA 256, a unanimous Court of Appeal (Handley, Beazley and Stein JJA) held that, where a plaintiff had twice suffered injuries as a result of the defendant’s negligence, it was necessary to determine his entitlement to damages for non-economic loss separately, in respect of each cause of action, in accordance with s151G. As the two injuries, though occurring in almost identical circumstances, necessarily created two causes of action, it was an error to assess one lump sum for general damages, instead of applying s151G, first to one, and then to the other. In that case, the result of going about the task of assessment correctly was to assess the first accident at too low a proportion for the claim to be sustainable but, as all the plaintiff’s losses could be attributed to the second accident, and being so attributed justified the assessment of a sufficient proportion of the maximum amount, he recovered in respect of the defendant’s liability for this accident.

46 In the present case, it was not submitted for the plaintiff that the reasoning in Woolage v The State of New South Wales, which appears directly in point, can be avoided by reference to Leppington Pastoral Co Pty Limited vJuweinat [2002] NSWCA 228, although counsel for the defendant did refer to the argument in State Rail Authority of New South Wales v Cowan [2003] NSWCA 147 where that case is mentioned. I therefore consider this matter upon the principle of Woolage v The State of New South Wales. If it is so considered, a separate application of s151G to the claim in respect of the plaintiff’s Raynaud’s phenomenon seems to me inevitably to lead to the conclusion that this claim does not get over the threshold of allowability. It cannot be regarded as equivalent to 17.6 per cent of a most extreme case.

47 The more difficult question relates to the two injuries in rises at the Metz mine suffered on 14 January 1997 and 31 March 1998. For the plaintiff, it was contended that the 1997 injury should be assessed at 30 per cent of a most extreme case, and the 1998 injury at 45 per cent. For the defendant, the argument was that the plaintiff’s ongoing disabilities should be attributed to the 1998 accident, the 1997 accident having produced but transitory and relatively minor consequences. The defendant, on this basis, submitted the 1998 injury should be assessed at 50 per cent of a most extreme case.

48 I am not able to accept the defendant’s submission. It is true that the plaintiff resumed the very demanding work of a rise miner following his 1997 accident. But that does not, in the special circumstances of this case, require the conclusion that is suggested. It is to be remembered that the plaintiff also resumed the same work after the 1998 accident, and continued to do it for a significant period until signs of actual physical collapse drove him to accept that he was endangering himself and others. Even when the extent of his injuries had been established, he did not simply stop working; although in very considerable pain, he performed such light duties as were made available to him. He was described by more than one medical witness as a stoical or uncomplaining man. In my assessment of him, he was a patient man who expected guidance from his doctors and was willing to act on it; having been told that X-rays had revealed no fracture, he worked on through his pain, believing there could not be anything seriously wrong. He is an intelligent person, but very conscious of the limitations of his education, and the superior knowledge his doctors were able to apply to the assessment of his situation. Both prior to the 1998 accident and after it, I think the plaintiff worked when most men would have ceased work.

49 In the view I have taken of the facts, and having regard to the law as it was declared to be in Woolage v The State of New South Wales, I cannot simply attribute the plaintiff’s suffering and disabilities to one injury. I think each injury was a very serious injury in itself and in its direct consequences. Furthermore, the first injury would have produced also the potential to be aggravated by the second, and the second would have had effects which it produced because it operated against the background of the effects of the first. Each injury was, in my opinion, an effective cause of the surgery which was reasonably necessary to deal with the effects of both of them, and thus of its consequences. Each contributed to the plaintiff’s present condition of unrelieved, or at best inadequately relieved, headaches and pain.

50 I have come to the conclusion that the plaintiff’s submission should be accepted insofar as the 1997 injury should be assessed at 30 per cent of a most extreme case and the 1998 injury at 45 per cent of a most extreme case. The resulting figures for non-economic loss are $66,495 and $101, 992. I do not accept the defendant’s suggestion that the accumulation of these percentages at 75 per cent shows them to be excessive, and in reaching the conclusions I have stated I have been careful to avoid any element of double compensation.

51 I turn to the question of the damages to be awarded for the plaintiff’s loss of earning capacity, in the past and for the future. As regards the past, the defendant’s willingness to keep the plaintiff on in lighter work, and the plaintiff’s willingness to do all that he could, despite his pain and restrictions, had the result that there was little actual loss of earnings until the closure of the mine in January 2002. Indeed, it is conceded by the defendant as a measure of the plaintiff’s earning capacity, uninjured, that he was able, in the year to 30 June 2000, to earn at the rate of $1,000 per week net. Nevertheless, Mr Wright did take some time off as a result of his injuries, for which a further claim was made in a written submission presented by leave after I had reserved my decision. In the circumstances, I shall deal with this item, if counsel are unable to agree, when short minutes are brought in. For the period 14 January 2002 to 5 May 2003, when the plaintiff was out of work following the closure of the mine, he claimed at the rate of $1143 per week (based on the wages paid to rise miners at Gympie Eldorado Gold Mine in Queensland) or alternatively at the rate of $1271 per week (based on wages paid in mines at Cobar). The amounts calculated, including an allowance for interest, were $78,009 and $86,745 respectively. For the same period, the defendant suggested a figure of $52,000, equivalent to a rounded allowance of one year at $1,000 per week.

52 There can, of course, be no certainty what the plaintiff would have done, if uninjured, when the mine closed. But there is evidence that mining work was obtained by others at the places mentioned or in Tasmania. Mr Wright was both skilled and a very willing worker. The plaintiff’s calculations assume he would have worked for 1.25 of a year during the period, thus building in some deduction. With his special qualities, the plaintiff might actually have done better than others. In my opinion, it would be reasonable to allow a rough average of the two calculations, and I allow $82,000.

53 The future is more problematic. Both sides suggest the plaintiff would have earned at a higher rate for 15 years, up to age 55, than thereafter. This is because of the arduous nature of work as a rise miner. The plaintiff puts forward the same rates as a guide, the defendant the figure of $1,000 per week. But the defendant argues for successive reductions of 35 per cent (treating the loss as no more than the loss of a chance) and a further 20 per cent for the significant vicissitudes affecting a rise miner. For the plaintiff, it is contended the deduction should be a conventional 15 per cent. In evaluating these submissions, I bear in mind the plaintiff’s record of working through difficulties and his significant level of skill. It would have been highly likely he would have been a preferred candidate for work. I do not accept the defendant’s suggestion, which I do not think the medical evidence really supported, that the plaintiff had a significantly vulnerable back before the accidents in question in this case. At all events, he is a man of unusual tenacity, and while he might well have been prepared to accept lower wages, after a period away, in order to return to Armidale, it is also quite possible he would have been able, within a comparatively short time, to return to very well paid work in a re-established mine at Hillgrove. Balancing the possibilities as best I may, I think the plaintiff would be fairly compensated, in respect of the next 15 years, by a figure calculated on the basis of a loss of $1,000 per week less a contingency allowance of 15 per cent. The special factors which might increase the 15 per cent contingency allowance are to some extent balanced by favourable factors and to some extent by the reduction of the weekly figure to $1,000. In choosing that figure, I have also had some small regard to the possibility the plaintiff still has some residual earning capacity, but I have not given that much weight. The reason is that, although I was at one stage impressed by the possibility the plaintiff’s intelligence would give him an opportunity to retrain, maturer reflection has convinced me he would face enormous hurdles. The medical evidence which I accept, including that of the defendant’s Dr McEwin, offers very little hope of renewed employment

54 Beyond age 55, the plaintiff seeks an award to cover the five years to age 60. The main differences between the parties for this period are (1) that the defendant suggests a residual capacity of $300 per week, and (2) that the defendant would seek a deduction for contingencies of 20 per cent, not the more usual 15 per cent. The basis of the lower claim for later years being that the plaintiff would have done less arduous and dangerous work, I do not think the 20 per cent deduction would be appropriate; nor, for the reasons I have explained, do I think any substantial allowance should be made for a residual earning capacity. I allow the sum of $58,555 which represents a loss of $620 per week for five years commencing in 15 years’ time, with a contingency deduction of 15 per cent.

55 Appropriate sums will need to be calculated and added for the loss of superannuation for the past and the future. I leave it to counsel to include these when bringing in short minutes.

56 The defendant acknowledges a sum of $72,000 for out-of-pocket expenses accepted by the workers compensation insurer.

57 A claim is made upon the principle of Griffiths v Kerkemeyer (1977) 139 CLR 161, as modified by the terms of s151K of the Workers Compensation Act, in the form in which it stood at the relevant time, in respect of the services provided to the plaintiff by his sister prior to the hearing. There was some vagueness about the evidence both of the plaintiff and his sister as to the hours of domestic work she did in his apartment. The defendant is prepared to concede 10 hours per week for 10 weeks from 5 August 1999 to 14 October 1999 (yielding a figure of $1,740) and thereafter one hour per week to 1 March 2003 (176 weeks – yielding a figure of $3,062). In my opinion, the first part of this concession represents the appropriate allowance, but I think in some weeks in the later period the plaintiff’s sister performed work for longer than one hour. At the same time, the plaintiff’s estimate probably includes “chatting” time for the brother and sister. Doing the best I can to estimate fairly as between the parties, I think a calculation based on an average of 1.5 hours per week from 15 October 1999 (yielding a figure of $4,593) would be fair and reasonable. I therefore allow a total of $1,740 + $4,593 = $6,333.

58 I accept the defendant’s submission that, for the future, the plaintiff’s sister is unlikely to provide regular assistance, and allowance should be made simply for paid assistance on the basis of one hour per week, yielding a calculated figure for 38 years of $18,040. The defendant accepts that, in addition, provision should be made for home modifications and aids in the sum of $10,050, which I regard as appropriate.

59 Because the quite intensive treatment the plaintiff has received has failed (as Dr Henschke very plainly stated) to find a solution to the plaintiff’s grave condition, the future expenses of anticipated treatment are unusually high in this case. The defendant accepted a calculation, based on the medical evidence and a projection of the current expenditure on pain relieving drugs, of $118,513, from which the plaintiff accepted a deduction of 25 per cent should be made, yielding a sum of $88,885. The only qualification for which the defendant contended was that it argued the deduction should be 50 per cent. But, while the future may offer cheaper forms of treatment or some fortunate relief of pain, the evidence offers no firm basis for any conclusion other than that the plaintiff will continue to need regular drug therapy. In my opinion, the deduction of 25 per cent is appropriate.

60 Of course, the cost of future treatment will not be limited to the cost of drugs. The parties submitted competing estimates of future medical expenses, both exceeding $20,000. I think a fair and reasonable estimate is $25,000.

61 It is accepted I should also allow a sum of $10,500 upon the principle of Fox v Wood (1981) 148 CLR 438.

62 The only formal order I make at this stage is that the plaintiff bring in, on a date to be fixed, short minutes of orders appropriate to reflect these reasons.

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Last Modified: 10/03/2003