Beck v Rowe Enterprises Pty Ltd & Pancontinental Resources Pty Ltd [1997] QSC 51

~cJ3r-~ Sc' 97(85( State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) .~ SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No W228 of 1995 JOHN GREGORY BECK and ROWE ENTERPRISES PTY LTD and PANCONTINENTAL RESOURCES (BASE METALS) PTY LTD TOWNSVILLE .. DATE 18/02/97 JUDGMENT Plaintiff First Defendant Second Defendant 1 4th Floor. The Law COllrts. Geor!!e Street. Brisbane. O. 4000 TeJep/lOnt': (07) 2274]60. Facsimile: (07) 227 55]2 -- 1 of 12 -- 180297 T49-52/HG M/T TSVSC3915 (Cullinane J) 'HIS HONOUR: In this matter the plaintiff has instituted proceedings claiming damages for personal injuries against his employer, the -first defendant, and the owner of the mine at which he was performing work when injured, the second defendant. In the course of addresses counsel representing both defendants conceded that a finding of negligence or breach of duty should be made against both defendants. It is therefore necessary for me to consider only the issues of contributory negligence and damages. The allegation against the plaintiff so far as contributory negligence is concerned essentially is that he ought to have sounded the surface overhead where he was working on the day he was injured, and that he ought to have barred down this surface. Included in the allegations made is an allegation that he failed to regularly visually check the area in which he was working. It is implicit in these allegations that the plaintiff, taking due care for his own safety, ought to have realised that the surface overhead may be unstable, or pose a risk of injury to him and that he ought to have, as a matter of sound practice, carried out the procedures that I have mentioned, and that had he done so, the accident would have been avoided. I think it is fair to say that it was accepted by everybody who gave evidence that sounding and barring down an overhead surface in a mine where one is working is good practice where there is any reason to doubt the security of the area where one is working. The plaintiff said, and I accept, that the 2 JUDGMENT -- 2 of 12 -- 180297 T49-52/HG M/T TSVSC3915 (Cullinane J) 'job on which he was working commenced the previous day. He was engaged as a driller employed by the first defendant. I accept generally the evidence which was given that his situation cannot be approximated to that of a miner, and also that it was primarily the second defendant's obligation to ensure that the gubbies where drilling work in the nature of exploration activity was to be carried out to take steps to see that these were safe. I am satisfied that the defendants failed in their duty to the plaintiff to do this and since it touches on the question of contributory negligence I should also say it seems to me that the way in which this should have been achieved is by bolting and meshing the area. The plaintiff says that he barred down the area on the morning of the day that he commenced and that the accident happened on the following day. He says that at the end of the first day a drill was partly completed and it was necessary that the equipment not be moved because considerable time is taken in setting up the drill for the purposes of drilling. For barring down to take place the equipment would probably have to be moved. He also said that he had not been instructed that he should sound ar.d bar down the overhead surface at the start of each day and that on the day of the injury he saw nothing amiss in the area where he was working. The evidence also suggests apart from the difficulty I have mentioned associated with sounding and barring down, once the equipment is in place, that there are some disadvantages if barring down takes place whilst the equipment is in place 3 JUDGMENT -- 3 of 12 -- 180297 T49-52/HG M/T TSVSC3915 (Cullinane J) which include an increased risk to a person standing on the drilling equipment, for the purposes of barring down, and also the risk of damage to the drilling rig in the event that barring down dislodges rocks. Indeed, the evidence rather suggested that once the drilling rig was in place barring down as a matter of practice did not occur above it. However, I think it is also fair to say that it was accepted that notwithstanding these disadvantages if there was reason to believe that there may be a risk of injury, in working in the area, the appropriate course would be to remove the equipment and to bar down the surface. As I have said however the plaintiff said, and I accept, that there appeared nothing amiss to him at the time he started work, on the day that he was injured, nor did he see anything in the course of the day which alerted him to any risk. It was suggested that what was seen later should lead to the conclusion that the area required barring down at the time the plaintiff started, or at some time during the course of that day, and would support a conclusion that he had failed to take care for himself by not doing so. The evidence does not satisfy me of this. There was evidence from Mr Bligh which might support this conclusion. However, the evidence from others who'were at the scene suggested that any looseness of rock was associated with the fall that had occurred, and I am not prepared to accept that there were other indications which might support the conclusion contended for. 4 JUDGMENT -- 4 of 12 -- 180297 T49-52/HG M/T TSVSC3915 (Cullinane J) Finally, there is the evidence of Mr Decker who described the particular type of material where the accident occurred. He suggested tha~~one can bar down in such an area and get a sound which suggests that nothing is amiss and yet a rock, such as the one that fell here, could work its way loose in the course of the day and without any earlier indications of trouble, suddenly fall. In these circumstances, I do not think firstly that a finding is justified that the plaintiff failed to take care for his own safety in not barring down the overhead surface on the day of the accident and that secondly, even if such a finding was to be made that the conclusion should be reached that this would have prevented the accident occurring. I therefore find against the defendant on the question of contributory negligence. The plaintiff sustained a fracture of the right distal radius and ulnar and a scaphoid fracture of the right wrist. The treatment which the plaintiff underwent in relation to this initially appears in the reports of the hospitals, which have been tendered. There are a number of reports of Dr Gibberd, an orthopaedic surgeon, of Townsville and Dr Sandown, an orthopaedic surgeon of Adelaide, relating to the progress of the plaintiff's disability. The plaintiff underwent a procedure in Adelaide which involved the fusion of the distal radius ulnar joint and removal of approximately one centimetre at the lower end of the ulnar. The benefit which such an operation is designed to achieve is to provide further movement but I accept the evidence of Dr Gibberd that it also results in increased pain. The mechanics 5 JUDGMENT -- 5 of 12 -- 180297 T49-52/HG M/T TSVSC3915 (Cullinane J) of what is involved and the consequences of the procedure were described by Dr Gibberd in evidence before me and I accept what he says. - In functional terms he says that the plaintiff has a disability of about 10 to 15 per cent loss of function of the right arm. The plaintiff at the time was employed as a driller. His work history appears in Exhibit 1. He had not long been employed by the first defendant. He had previously worked as a driller and had also worked on his own account it appears, unsuccessfully, as a driller owning a drilling rig. He had operated for some three years a pest control franchise before returning to the mining industry. He had worked for Longyear, based in Adelaide, carrying out drilling throughout South Australia and New South Wales for a year or so, and it was whilst he was working for that company that the first defendant approached him and offered him work at Charters Towers. He has on two occasions worked as a driller since the accident, once with Silver City Drilling, and once with Ausdrill Limited. In the latter case the work was primarily supervisory in nature but he says, and I accept, that it was necessary that he also perform some of the physical aspects of the work. I accept what he says supported as it seems to me to be by Dr Gibberd that the disability which he has causes him such pain in the wrist, when carrying out drilling work and the activities associated with it, as to make it not unreasonable for him not to continue to do that work, and in these circumstances I think his damages are to be assessed 6 JUDGMENT -- 6 of 12 -- 180297 T49-52/HG M/T TSVSC3915 (Cullinane J) 'upon the basis that he is incapable of doing so as a result of the negligence of the defendants. He worked it has to be said for significant periods for each of the two employers he has worked for as a driller since the accident. He has commenced a business in partnership with another person as a pest controller. The business commenced on 10 December 1995. His partner, Mr Klein, was called to give evidence before me. He works as a driller and only works for about a day a week in the partnership. I have got evidence from accountants before me as to the profitability and the likely future of the business. I think that the position probably is somewhere between the two views expressed. The business has been going for a little over a year and I accept what has been said by Mr Coco as to the considerations which militate in favour of some improvement on the first year results for the reasons which he gave. On the other hand, it is impossible to ignore what has taken place during this year, and I think that his prognosis is probably a little on the rosy side, and I also think it is likely that the plaintiff, who I thought was a man of some initiative and drive, is likely if the opportunity presents itself to better his situation to do so, and that it should not be assumed that he will be limited to the income which the business currently generates or is likely to on the assessment I have made in the future. It is necessary to consider the claim made in respect of past and future economic loss. I had evidence of the income which the plaintiff has in fact earned as a driller in the two 7 JUDGMENT -- 7 of 12 -- 180297 T49-52/HG M/T TSVSC3915 (Cullinane J) positions he has had since the accident. I had evidence of the earnings of other persons engaged in the mining industry as a driller including income of persons working overseas. Indeed, I had evidence from a man currently working in Chile. It appears that a number of people from the mining industry workforce in the Charters Towers region have travelled overseas for periods where they are able to earn substantial incomes which are also tax free. As against this the industry whilst presently undergoing something of a boom is, I think I am entitled to take judicial notice of, notoriously volatile. There is evidence from Mr Rowe, the principal of the first defendant, that the plaintiff's employment with him was not likely to have continued for much longer and at least until recent times it is unlikely that he would have employed the plaintiff for significant periods. On the other hand, the evidence suggests that there has been a significant demand for drillers of recent years. The plaintiff I am satisfied would have pursued employment in this field given the substantial income that it could have provided to him and he and his wife would have been prepared to make some sacrifices in this regard. On the other hand, he is a relatively young man with a young family and I think it unrealistic to assess damages upon the basis that he would have been likely to continue to work in it indefinitely. Moreover, his pre-accident work history does not, in my view, support the proposition that it would be realistic to assess damages upon the basis that he would have been employed 52 weeks of the year in this field. Such employment usually 8 JUDGMENT -- 8 of 12 -- 180297 T49-52/HG MIT TSVSC3915 (Cullinane J) involves being away from home for considerable periods and often work in harsh conditions. I should also say that it does not seem to me that the plaintiff is precluded from working in a supervisory position in the area, provided that this does not involve very much in the way of heavy duty. If he was fortunate enough to obtain such a position then he would be able to do it although I recognise that the evidence, which I accept, suggests that generally such positions do require a person to perform a significant degree of heavy work. The result is that a disability which whilst expressed in terms of loss of function does not impress one as being great has resulted in a significant loss to the plaintiff in the sense that he is deprived of the opportunity to engage in drilling work which would produce a substantially greater income than he could expect to earn in other positions. However, I do not think that drilling could have been expected to represent a work future to him which could be regarded as full time and permanent. These are all factors which have to be balanced in striking an appropriate figure for past and future economic loss but I emphasise that I see the impact of the disability as having resulted in substantial loss to him. The plaintiff has also been deprived of the ability to engage in some recreational activities which he previously enjoyed. These are dealt with in his statement, Exhibit 1. So far as general damages are concerned I think the figure contended for by the plaintiff is not unreasonable and I allow general damages in the sum of $32,500. The plaintiff has received by 9 JUDGMENT -- 9 of 12 -- 180297 T49-52/HG MIT TSvSC3915 (Cullinane J) way of a lump sum payment from the Workers' Compensation Board the sum of $8,886. I allow interest on the difference between this sum and $15,000 which I ascribe to the past, namely, $6,114 at two per cent per annum for 4.8 years producing a sum of $586. So far as past loss of income is concerned I have evidence of the plaintiff's earnings from his employment with the two companies that he was employed by, as a driller, and also from his pest control business. In relation to this period the plaintiff earned while he was working at Silver City Drilling some $25,700 and at Ausdrill Limited some $50,575. The significant periods that the plaintiff worked under difficulty at these places suggests to me that the discounting for the factors I have already referred to should at least in respect of past economic loss not be the subject of heavy discounting. I allow in respect of past economio loss, including loss of superannuation entitlement, the sum of $55,000. The plaintiff has received by way of Workers' Compensation payments for substitution of income the sum of $26,499.81. The difference between the two sums is $28,500.19. I allow interest at the rate of 5 per cent per annum for 4.8 years on this sum producing a figure of $6,840. I have already referred to the various factors which have to be taken into account in relation to future economic loss. I think that an appropriate figure including loss of superannuation entitlements in respect of future economic loss is the sum of $135,000. 10 JUDGMENT -- 10 of 12 -- 180297 T49-52/HG M/T TSVSC3915 (Cullinane J) So far as the claims for care and assistance are concerned I am satisfied that the plaintiff required care and assistance which for some·,periods was significant. It is difficult to approach this calculation on anything other than a matter of impression and I propose to allow the sum of $2,000 in respect of the past. It was not the subject of any serious challeng~ and the counsel for the defendant drew my attention to that fact in his address. I allow in respect of interest on that sum the amount $192. The claim in respect of future care relates to an inability to perform certain activities of a heavier nature around the yard and an inability to mow and certain other matters which are referred to in the statement of the plaintiff's wife. I do not think the evidence supports an award of anything like that claimed. I accept that over the period of the next 40 years or thereabouts which represents the plaintiff's life expectancy he will at times have difficulty with some activities for which it is reasonable to expect he may need assistance and for which some allowance should be made. I allow in respect of future care and assistance the sum of $4,000. General damages are agreed upon in the sum of $9,486.27 to this has to be added the Fox and Wood component of $8,546.10. The total of this sum is $254,150.37 from this has to be deducted the sum of $53,238.73 being the total amount the plaintiff has received from the Workers' Compensation 1 1 JUDGMENT -- 11 of 12 -- 180297 T49-52/HG M/T TSVSC3915 (Cullinane J) I Qroducing a figure of $200,861.64. There will be judgment for the plaintiff against the defendants in the sum of $200,861.64 with costs inc1uding reserve costs to be taxed. 12 JUDGMENT -- 12 of 12 --