Bissell v Mount Isa Mines Ltd [2006] QSC 59

SUPREME COURT OF QUEENSLAND CITATION: Bissell v Mount Isa Mines Ltd [2006] QSC 059 PARTIES: MAURICE LIONEL BISSELL (Plaintiff) v MOUNT ISA MINES LIMITED (Defendant) FILE NO/S: SC No 10 of 2005 DIVISION: Trial PROCEEDING: Claim ORIGINATING COURT: Supreme Court at Mount Isa DELIVERED ON: 23 March 2006 DELIVERED AT: Townsville HEARING DATE: 13 th and 14 th March 2006 JUDGES: Cullinane J ORDER: Judgment in favour of Plaintiff against the Defendant. CATCHWORDS: QUANTUM - DAMAGES - Workplace injury. Where defendant has admitted liability. Arm disability - whether significant economic loss. COUNSEL: Mr Richard Lynch for the Plaintiff Mr Andrew Stobie for the Defendant SOLICITORS: Sciacca’s Lawyers & Consultants, Brisbane for the Plaintiff Walsh Halligan Douglas Lawyers, Brisbane for the Defendant [1] The plaintiff’s cause of action was admitted at the commencement of the trial. [2] The plaintiff who was born on 26 October 1969 was injured in the course of his employment with the defendant on 2 December 2001. He was employed as an underground miner at the George Fisher Mine near Mount Isa. He was injured when a basket in which he was working fell a distance of 2.5 to 3 metres to the ground. [3] In the accident he sustained a comminuted fracture of the right elbow. He also sustained an injury to the lumbar spine and also to the right foot. The injury to the -- 1 of 7 -- 2 right foot healed quickly without any symptoms. He suffered for some time some symptoms in the back which appear to have resolved although he says that occasionally in his current work some activities cause symptoms. [4] The injury to the right arm has left him with a disability which, on his case, has limited his occupational horizons, resulting in significant economic loss to him. [5] Indeed it can be said that the primary issue in this case is whether the plaintiff has been prevented from working as an underground miner at least in the tasks he has previously worked in. [6] His disability places some limitations on his ordinary day to day activities but on the plaintiff’s case by far the major impact of the disability is felt in the area of his earning capacity. [7] The plaintiff left school at age 17. He was then in the process of repeating grade 12. He worked for some time in a bank and then in a variety of positions including labouring, a barman and the supervisor of a resort. He became the duty manager of a hotel for a period [8] He comes from a mining background. He married his wife in 1996 and their first child was born on 3 November 1994. At this time he realised that it was necessary for him to obtain work which produced a higher income and as a result applied for work at the defendant’s mine in Mount Isa. [9] He commenced work with the defendant on 7 April 1997 as a nipper. [10] His wife and young daughter joined him some months after he commenced work at Mount Isa. They have since had another child born on 7 March 1998 and purchased a house in Mount Isa in October 1999. [11] After some eighteen months, he was promoted to the position of grouter and a couple of years later became a cable bolter. He says that at the time of the accident he was employed as a ground support operator which required the performance of cable bolting duties, ground support duties and certain other tasks. This work as with it would seem underground mining work generally requires the performance of 12½ hour shifts on the basis of two day shifts and two night shifts with then some four days off. [12] He had sustained an injury to the right arm in a motor vehicle accident in 1997 but the evidence suggests that he had made a complete recovery from this. He is right handed. [13] Following the accident he was taken to the Mater Hospital in Townsville where surgery in the form of an open reduction with internal fixation using k-wires and tension band was performed. [14] In December 2001 his arm was placed in a fibreglass cast. After this was removed, he underwent physiotherapy. [15] He returned to work in January 2002 and commenced a rehabilitation programme organised by the defendant. He was performing office duties during this time and did some computer training and other courses. He was however anxious to return -- 2 of 7 -- 3 underground and did so on 6 April 2002, as a cable bolter working with an offsider. He found that his arm was quite sore doing this work and he says he kept bumping it and aggravating his injury. As a result arrangements were made for him to see a specialist in Brisbane who removed the wires that had been inserted in Townsville. [16] He returned to light duties for a period of about four weeks and then took annual leave. He returned to work as a cable bolter on 21 September 2002. He says that this work was heavy work and that he needed an offsider to assist with the heavy work and one was not always available. As a result he says he suffered a good deal of pain and realised that he should change to another position and did so to that of loader operator or mucker. According to his evidence this was less physically demanding but resulted in some loss of income. He changed positions in October 2002. [17] He remained in this position until the beginning of 2004. The work itself is described in paragraphs 26 and 27 of exhibit 8. Two aspects of it caused him particular problems with his arm. One was the need to constantly pull himself up the steps of the loader which he operated. This involved taking the whole or a good deal of the weight of his body on his arms as he did so. He says he had to do this about 70 to 80 times a shift. In addition it was necessary to do what are described as clean ups which occurred on an average of about once a week. This required the use of an implement described as a pelican pick to dig away dirt from areas where it was caught such as corners and where the machine could not effectively clear the dirt away. [18] In October 2003 he complained to the injury management co-ordinators that this work was causing him pain and he arranged through them to complete courses in workplace health and training with a view to being moved into a training job when it became available. To this end he completed a certificate for a Workplace Trainer and Assessor’s Course in December 2003 but continued with the work as a mucker until a position became available. [19] This occurred in March 2004. He is currently employed as a training facilitator. [20] The plaintiff says that at the time of his accident he intended to remain as a cable bolter because he enjoyed the work and it provided a substantial income to him. He and his family were settled in Mount Isa. He said that he hoped to progress to the more lucrative position underground of a jumbo operator. This is the highest level to which an underground miner might aspire. The evidence before me suggests that there are at the George Fisher Complex some 20 jumbo operators out of a workforce of 230 underground miners. According to Sheldon Jacka the senior human resources adviser for the defendant, a jumbo operator’s role is a very senior mining role and it takes a long period of time to gain the necessary skills and competencies to be able to fulfil that position. Most people who have that position would have at least ten years and in some cases fifteen to twenty years experience in underground mining. There are more persons qualified for this position than there are positions available but they are paid according to that classification once they become qualified. The entry level is some $116,000 and it is plain that many earn substantially more than that. [21] Mr Jacka expressed the view in cross-examination that it was highly likely that the plaintiff would eventually have got to that level if he put the time and effort in to it. -- 3 of 7 -- 4 [22] There is then a real prospect that the plaintiff at some time in the future would have progressed to the position of jumbo operator. [23] There is a dispute before me between the two orthopaedic surgeons who were called to give evidence as to whether the plaintiff is capable of performing underground mining work. [24] Dr Watson saw the plaintiff twice on behalf of the defendant initially in relation to the claim for workers’ compensation. [25] His view is that the impairment of function of the plaintiff’s right arm should not prevent him from performing the work of an underground miner. He says that he is fit for any duties and “I personally would place no restrictions on this patient”. [26] He assesses the plaintiff’s disability as being some 2% loss of function of the whole person. [27] One significant feature of Dr Watson’s evidence is that although he relates the fact that the plaintiff moved from the work of a cable bolter to mucking duties and from mucking duties to a workplace training facilitator, he does not appear to have asked the plaintiff anything about the difficulties that the plaintiff says he was experiencing in the underground mining tasks as part of his assessment of the plaintiff’s capacity to continue performing those tasks. [28] Dr Gillett saw the plaintiff only once and this it was suggested is a reason why Dr Watson’s evidence should be preferred. However it is clear that he saw the plaintiff at a time when on the view of both of the orthopaedic surgeons his position had stabilised. His assessment of the plaintiff’s disability is that he has a 10% impairment of the upper limb. There will be degenerative changes and he will be left with a disability of 15% of the upper limb. There is loss of movement in the joint and damage to the articular surfaces [29] He expressed the view that it was reasonable for the plaintiff to have moved to a workplace training facilitator from mucking work when he did given the problems he was experiencing. He said that had the work accident not occurred it would have been likely that he could have worked as a cable bolter until age 60. [30] Some emphasis was placed upon Dr Gillett’s opinion in his first report that he thought that the machinery operating activities rather than manual handling activities would be better for the plaintiff. In his evidence he spoke of a time frame in relation to this of some five to ten years. [31] However in my view he was talking generally and there is nothing inconsistent between this and his opinion that the plaintiff acted reasonably from a medical point of view in ceasing the underground mining work which he had been performing when he did and in obtaining his current position. [32] My assessment of the plaintiff was of a hardworking, genuine man who wished to obtain the best possible income he could to provide for himself and his family. He suffered a significant loss of income in giving up the work of an underground miner and in moving to his current position. There is certainly nothing to suggest that he is a malingerer nor do I accept that he had determined upon some type of career -- 4 of 7 -- 5 change independent of the impact of the accident upon his capacity to perform underground mining work. [33] I accept Dr Gillett’s opinion.I am satisfied that the plaintiff has suffered an impairment of his capacity to earn an income in that he is no longer capable of performing the work of an underground miner of the kind that he had been previously performing. [34] Nonetheless the position into which he has moved which is a staff position has some advantages to him. Whilst the income that he earns from that is significantly less than that which he would have earned had he remained in a mucking position it offers some opportunities in the way of advancement. Jacka put the matter in this way: “The training facilitator role is a stratum 1E role. That role – it’s a staff position as opposed to an EBA position within our organisation. We have a fairly, I’d say, well structured career pathing system for anyone who is a staff member working for Xstrata Zinc and in alignment with that a training facilitator has a large range of options in order to put together a career progression path that they might like. So training’s incumbent upon the safety department, the human resources department, it’s not located just in underground mining, it works across the whole lease, so all sections of our operation employ training facilitators and there are senior positions as well located within the training system so – and managerial positions should you pursue it. Are there any positions which can be identified within the George Fisher Mine to which the plaintiff Mr Bissell might aspire even with further experience and training?—Yeah, sure. The – the next position would be a stratum 1F position which is a senior professional band. That’s for people who have the level of experience to hold that. That’s geologists and mining engineers, training professionals and safety professionals hold that qualification. So that’s a training coordinator’s position that’s in charge of and running a team of other training facilitators. And certainly beyond that there are senior training positions within the organisation which incorporates running training for the zinc business, and there’s also a managerial training position.” [35] There is only the one training co-ordinator at the George Fisher Complex and three facilitators. Some further qualifications are open to the plaintiff. He may have to compete with tertially qualified persons the higher he seeks to progress. A co- ordinator’s gross wage is $83,000. [36] At one time it was suggested to the plaintiff that he might aspire to the position of a supervisor underground. The plaintiff expressed some reservations about such a position and the responsibilities which came with it and I thought that he was genuine and realistic in expressing those reservations. [37] The plaintiff has been assessed recently in what is described as a Personal Effective Review (PER) at the highest level. He has received some increment in his income -- 5 of 7 -- 6 as a result. Mr Jacka was inclined to speak in glowing terms of the potential for advancement of a person who has been assessed in such a way and suggested that such a person would be identified as someone who would be regarded as especially valuable within the organisation and the employer would be anxious to retain him. [38] There is a significant skill shortage in the mining industry as is notorious and the training and qualifications which the plaintiff has now is something which he would be able to use across the industry and beyond it. No doubt it might also be said that at least within the industry his experience as an underground miner would also enable him to obtain employment elsewhere. [39] It cannot of course be assumed that the industry will always be so buoyant. In addition there has to be taken into account the risk that at some time as his children become self-supporting the plaintiff and his wife would have sought a life which involves less arduous employment than underground mining involving as it does long hours of shift work. [40] Nonetheless I accept that at the time the plaintiff was injured his intention was to remain indefinitely as an underground miner and that at least physically there would have been nothing to prevent him from staying in that position until he reached somewhere around the age which Dr Gillett refers to in exhibit 7B. [41] There are contingencies in this case moving both ways. On the one hand the plaintiff is likely had he remained as an underground miner, to have at some time achieved the position of a jumbo operator with the consequent significantly enhanced earnings that such people receive. In his current position his career path horizons are somewhat wider and he is better equipped to obtain employment outside of the industry if the need arises or he chooses to do so. Such a career path might see him remain in the workforce somewhat longer than would be the case if he remained an underground miner. Some degree of moderation is required when allowing for his present prospects. He has only a secondary education, limited managerial experience and would be at a disadvantage if he has to compete with those who are tertially educated. [42] What cannot be denied however is that at present on a comparison between what the plaintiff would have been earning as a cable bolter (a gross income of $103,360 a year) and his position as a training supervisor (a gross income of $74,500) the plaintiff is significantly worse off. He is considerably worse off if the income of a jumbo operator is taken into account. Even if he progresses to a co-ordinator he will probably be earning less than what he would have earned underground. I do not lose sight of the fact that in positions of this kind a housing allowance is involved. He is thus likely for many years in the future to be worse off financially than would have been the case. [43] The plaintiff says that he enjoys golf to which he returned not long after the accident. He has adapted his game somewhat to allow for the handicap of his right arm. He has some difficulties with some tasks around the house. It can however be said that the impact upon his day to day life is relatively small and that the real impact of the disability is upon his earning capacity. [44] I assess general damages in the sum of $32,500. I allow interest on $15,000 at 2% for 4.3 years producing a figure of $1,290.00. -- 6 of 7 -- 7 [45] It follows from the findings I have made that the plaintiff should be allowed past economic loss in the sum claimed namely $42,000. I do not think it is appropriate for any discount to be applied to this given the period for which the plaintiff worked for the defendant and the fact that it is a little less than 4 ½ years which has passed since the accident. I allow interest on $30,664 at 5% for 4.3 years producing a figure of $6,592.76. [46] The claim for past economic loss is as I have said the area of sharpest disagreement between the parties. I am satisfied that the plaintiff has had an impairment of his earning capacity in that he is unable to work as an underground miner in the positions he previously worked and this is productive of economic loss to him. I have referred to some of the contingencies as to his future employment both now and had he not suffered the accident and the fact that these move in both directions. I have also referred to some of the general contingencies which have to be taken into account. The plaintiff is 36. On a direct comparison between the work he would be likely to be doing as an underground miner but for his injury and what he is presently earning with his retraining, he is suffering a nett loss of about $315 a week accepting the defendant’s submissions as to the relevant tax rate. [47] Doing the best I can bearing in mind the imponderables involved I assess the plaintiff’s future economic loss at $180,000. I do not think that the plaintiff’s future economic loss could on any reasonable assessment of it be less than this. [48] I allow in respect of past occupational superannuation 12% of $30,665, a sum of $3,679.80. [49] In respect of future occupation superannuation loss I allow 12% of the amount allowed for future economic loss namely $21,600. [50] There is to be allowed special damages represented by amounts paid by MIM Care in the sum of $35,072.39 and an amount of $75.20 representing the sum to be refunded to HIC. [51] The total of these figures is $ 322,810.15. [52] From this has to be deducted the sum of $46,408.07 being the refund to the self- insurer. [53] There will be judgment for the plaintiff against the defendant in the sum of $276,402.08. -- 7 of 7 --