Dawes v BHP-UTAH Coal Ltd & Anor [1994] QSC 363

se ~4(36~ State Reporting Biiieau- 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 DEMACK J No 23 of 1991 ALAN EDWARD DAWES and BHP-UTAH COAL LIMITED and LES BOAL MACKAY •• DATE 06/12/94 JUDGMENT Plaintiff First Defendant Second Defendant ---1 -- 1 of 19 -- 061294 T1-5/RT M/T MKY489/94 (Demack J) HIS HONOUR: Alan Edward Dawes was born on 2 May 1951. He was involved in a motor vehicle incident in the course of his employment with the defendant on 24 July 1989. The case has been contested both in respect of liability and in respect of damages. In my experience the case is quite unusual because although there has been this quite detailed contest, in many respects the matters placed before the Court are not in dispute. It is not in dispute that the plaintiff was technically a very competent employee of the first defendant as a dragline operator, and that he became a well respected and competent foreman of dragline operators. It is also not in dispute that the incident in which he was injured occurred at the principal intersection at the defendant's mine site at Saraji. It is not in dispute that that intersection at the time was one that was inherently dangerous at the time of day when the plaintiff was driving across it. The first defendant, as a responsible mine operator, instituted changes to the control of traffic crossing that intersection immediately after the incident. It is also not in dispute that the plaintiff sustained severe injuries and has had very severe psychological sequelae. However, again as a responsible employer, the first defendant has sustained a program of rehabilitation for the plaintiff, and the evidence before me shows that he is employed gainfully and usefully and at present finding considerable pleasure in his work. There remain, however, significant 50 60 2 JUDGMENT -- 2 of 19 -- 061294 T1-5/RT M/T MKY489/94 (Demack J) orthopaedic disabilities and there is still some unresolved psychological concern. The issue of negligence, se far as it concerns the first defendant, was not really the subject of argument by Mr Britton in his final address. The incident occurred at twilight on 24 July 1989. Mr Dawes was driving a four wheel drive vehicle along a road that crossed over this major intersection, travelling roughly in a southerly direction. To his right there was the ramp that went up to the main coal dumping position at the mine. Although the vehicular traffic using that dumping station normally crossed from Mr Dawes' left to right, he had experience of water trucks coming down from that ramp on his right. Also coming in from the right was traffic from the coal reject bin. The road from the reject bin came up a slight incline onto the intersection. However, in Mr Dawes' direction of travel there was also a substantial bund wall between the ramp up to the dumping station and the road coming from the reject bin. At the time the wash plant, which was situated behind the reject bin, formed a very dark structure against the last glow of the evening in the west. That structure had on it various lights, some of which were white and some of which were yellow. The second defendant was driving an 85 tonne Euclid truck from the reject bin up the road and onto the intersection. He had only the parking lights on. The road surfaces were all very dark, and some of them were slippery, having 50 3 JUDGMENT -- 3 of 19 -- 061294 Tl-5/RT M/T MKY489/94 (Demack J) recently been watered. In addition to those two roads on his right, Mr Dawes had also a double entrance from a parking area near the crib station that emerged onto the intersection from his left. There was a third road on his right which came in at an angle over his right shoulder. There was the main haul road up onto the dumping station which also carried traffic from his left to his right as I have previously mentioned. The intersection was of appropriately large dimensions. Doing the best I can with the scale material that is before me, it seems that it was almost lOO metres across from, what might ordinarily be thought of, the point where the intersection started in the direction of Mr Dawes' travel to the point where he had almost cleared the mouth of the road up from the coal reject bins. Mr Dawes says that as he approached the intersection he was travelling at about 35 kilometres an hour. The general speed limit imposed by the first defendant on the mine site is 40 kilometres an hour, so that he was travelling within that speed limit. He looked to his right at first, checking the three roads that were there, and saw nothing in any of them. He then checked around to his left. At some point in this he diminished his speed a little but not significantly. Having checked the .various .roads on his left and seen nothing, he looked back and saw that the Euclid truck was very close to him on his right. He tried to take evasive action but failed to succeed in that. The front tyre mounted over part of the four wheel drive that he was driving and the Euclid truck :; 50 60 4 JUDGMENT c -- 4 of 19 -- 061294 T1-5/RT M/T MKY489/94 (Demack J) came to a halt some distance clear of the four wheel drive. The front dashboard area was squeezed down onto Mr Dawes' leg. It seems to me clear enough, as the first defendant itself ~0 recognised, that this was not a safe place for its employees. It introduced changes to provide stop signs at the main haul road, and it also tried to delineate the lanes in which vehicles should travel. 20 However, as at 24 July 1989 it was extremely difficult for Mr Dawes or anyone else in his position to see the Euclid truck emerging as it did from the darkness that was in the shadow of the wash plant up across the dark surface of the road. The truck was painted white but the truck was driven in an area covered with coal dust day and night. The fact that the lights were not on greatly reduced the possibility of seeing the truck. It seems to me that the plaintiff has established that the first defendant did not provide a safe place of work because of the basic inadequacies of the design of the intersection. The plaintiff has also joined the driver, Mr Boal. It appears from his evidence that he was driving wit~~~y the parking lights on and there is no obvious reason why he should not have had more lights on. However, I am not satisfied on all the evidence that this would have made much difference. Photographs have been taken of the scene which 50 5 JUDGMENT -- 5 of 19 -- 061294 Tl-5/RT M/T MKY489/94 (Demack J) are part of the report of Mr Kahler, and these demonstrate that the pattern of lights on the wash plant is such that even if the headlights on the Euclid were illuminated, that would have added very little clear delinaation of the truck and may have simply added confusion. I am no·t satisfied that that is established as a negligent act which caused or contributed to the incident. It is also the fact that Mr Boal saw the four wheel drive vehicle approaching and did not take any steps to slow down until it was too late. He was travelling at a very slow speed, but the weight of the vehicle and the slipperiness of the road surface meant that stopping was a relatively slow process. However, all the rules of the road on the mine site required other vehicles to give right of way to him, and I am not satisfied that he acted in a negligent fashion continuing to drive. It seems to me the problem lies within the province of the first defendant as was very clearly recognised in the report that was prepared by Mr Clark and which is Exhibit 46, and upon the basis of the 10 20 c recommendations in which the changes to the intersection were :.: L carried out. I am satisfied that the first defendant, as employer, has failed to provide a safe place of work for the plaintiff. The issue of contributory negligence was thoroughly canvassed. It was pleaded that the plaintiff was negligent in failing to keep any or any proper look out, in driving at an excessive speed, and failing to stop, slow down or steer 50 6 JUDGMENT -- 6 of 19 -- 061294 Tl-5/RT M/T MKY489/94 (Demack J) clear, and in failing to give way to the second defendant's motor vehicle. I am satisfied that Mr Dawes looked with as much care as he could in the circumstances. It seems to me to be a case where he·was about his employer's business, moving from one part of the mine site to the other, and that he looked as well as he could. I am satisfied that his speed which was within the speed limit imposed by the first defendant was not excessive, and having been unable to see the other vehicle, it was not possible for him to give right of way to it. I accept the evidence from Mr Kahler, which described the difficulties of seeing the Euclid truck in the circumstances that prevailed at that time. So I am not satisfied that any contributory negligence has been proved. Mr Dawes was trapped in the vehicle for some time and Dr Kerrin, the local doctor at Dysart, was called to the scene while steps were taken to extricate Mr Dawes. He was then taken to the Dysart Hospital and Dr Kerrin's report, Exhibit 2, describes the injuries that were noted. There was a laceration on the right temporal region, a haematoma right frontal region, a long laceration over the right shin, a puncture wound on the right knee and a right knee injury. There was also an injury to the left forearm and left hand. There were no fractures to the skull. However, x-rays revealed a comminuted fracture of the left radius, a fracture of the left ulna styloid, a fractured base of the first metacarpal and a fracture .of the first proximal phalanx, and a fracture of the base of the second metacarpal. on the right lower limb there was clear injury and bone damage but no attempt was made at Dysart to undertake radiological '0 20 ~() 50 60 7 JUDGMENT -- 7 of 19 -- 061294 T1-5/RT M/T MKY489/94 (Demack J) investigation due to the pain involved. The nature of the injury to the right leg was described by Dr Cook in his evidence. There·· was a fracture of the upper right tibia that occurred some four to five inches below the head of the tibia. However, the bone between that fracture site and the head of the tibia itself was extensively fractured and the fracture extended up into the head of the tibia. There was also extensive involvement in the knee joint itself. On 25 July Mr Dawes was taken to the Pioneer Valley Hospital and treated by Dr White. A second operation was required to the knee on 29 July 1989, and some time later Mr Dawes was returned to Dysart Hospital. His wife noticed by then that he was extremely distressed and constantly breaking down in a tearful manner. Attempts were made to get him home from the hospital but he was most reluctant to leave the apparent security of the hospital. He would be taken home for two hours at a time, but was always anxious to return. He was finally discharged from the Dysart Hospital on 9 September 1989 with his right leg and left arm still in plaster. The plaster was removed eight and a half weeks after the accident. It was obvious by then that the right knee was quite seriously deformed. The bones had set in such a fashion that the knee joint was at 40 degrees instead of being flattened when locked. The left wrist also had some limitations of movement and loss of strength. 50 60 8 JUDGMENT -- 8 of 19 -- 061294 T1-5/RT M/T MKY489/94 (Demack J) on 25 October 1989 Mr Dawes was sent to see Or McMeniman in Brisbane in respect of his right leg. The doctor considered that an osteotomy to attempt to straighten the fracture of the tibia was not recommended, apparently because of the other damage within the knee joint itself. In December 1989 Mr Dawes returned to work on a rehabilitation program. On 2 January 1990 Dr White performed an arthroscopy. He describes this in Exhibit 5. He said that there was some medial lateral ligament laxity in the knee joint. He removed a large cartilaginous loose body. The medial femoral condyle displayed moderately marked erosive changes with fibrillation. Those areas were excised. The superior surface of the lateral tibial plateau displayed a longitudinal defect which appeared to be filled with solid cartilaginous material apart from one fissure. Dr White then sent Mr Dawes off to see Dr Fergus Wilson, and Dr Fergus Wilson expressed the view that no surgery was then required but that the plaintiff might come to arthrodesis. By this time Mr Dawes's distress and depression was such that he was referred to Dr Ken Gillman, psychiatrist. In March 1990 Mr Dawes saw Dr Johnson-Nurse who, while not directly recommending an osteotomy, canvassed the idea and suggested that it was worth considering. over the next two years Dr Gillman treated Mr Dawes for depression with varying levels of success, but always there was a persisting series of symptoms. Dr Gillman admitted Mr Dawes to the Mater Hospital in Mackay on 15 March 1992 and he 20 50 60 9 JUDGMENT -- 9 of 19 -- 061294 T1-5/RT M/T MKY489/94 (Demack J) was there seen both by Dr Alan Cook and by Dr Llew Davies, a physician. Dr Cook recommended the osteotomy and that was performed on 31 March 1992. Although the actual straightening of the bone seems to have been successful and the bone has reunited, when Mr Dawes returned to work on 17 August 1992 he still found that he had a great deal of trouble with his knee. He remained at work only for about four weeks. He was hospitalised on 5 October 1992 when he underwent operation for a knee replacement. He was discharged on 17 October 1992 and returned to work on a June 1993. He remained at work until 4 October 1993 when again his psychological difficulties caused him to cease work. He went to see Dr Alroe, psychiatrist in Rockhampton, and was admitted to St Andrews Hospital in Rockhampton for two weeks in November 1993. The program which Dr Alroe offered him of cognitive behavioural therapy had a very beneficial effect. His supervisors at work all note that once he returned to work after that he was very much better. However, the price for that improvement seems to be that the continuing symptom of fatiguability remains, so that although he is able to continue his work, his life at home is mainly taken up with sleeping. This seems to be having a fairly deleterious effect on his wife and children at present, but Dr Alroe sees them making the adjustment to this situation, and it is something that seems to be part of the life that Mr Dawes will have. 20 ··'..) 50 60 10 JUDGMENT c -- 10 of 19 -- 061294 T1-5/RT M/T MKY489/94 (Demack J) Three psychiatrists were called: Dr Gillman and Dr Alroe for the plaintiff and Dr Nothling for the first defendant. A lot of the debate between them lay in the question of how to characterise the plaintif£'s condition. It seemed to me that in the ultimate picture it did not matter much whether the fatiguability that Mr Dawes has is simply a symptom of his depression or whether it is some separate psychiatric condition. The real problem is that it persists and that although it is now three and a half years and more since Mr Dawes commenced treatment in the hands of Dr Gillman, his fatiguability remains a real problem. It seemed to me that there was not a great deal of difference of opinion between Dr Alroe and Dr Nothling. Dr Gillman, who has had.the longest contact with Mr Dawes, was certainly the most pessimistic of the psychiatrists. However, since 22 November last year when Mr Dawes returned to work, he has been able to work to the satisfaction of his employer and his work is secure. So far as the orthopaedic injuries are concerned, Dr Doughty has seen Mr Dawes on two occasions, and on 20 June 1993 he assessed the impairment of function to the left arm at 30 per cent of the left upper limb, with the possibility of future arthritis producing a 40 per cent loss of function. However, he saw Mr Dawes on 20 February 1994 and found there was a considerable improvement, so that he assessed the present loss of function at 20 per cent of the left upper arm. However, in 15 years he still expects the arthritis to 50 60 11 JUDGMENT -- 11 of 19 -- 061294 Tl-5/RT M/T MKY489/94 (Demack J) cause a deterioration to a loss of 40 per cent. What seems to me to be significant is that the improvement is attributed by Mr Dawes ·to the fact that he has been doing raffia work with his wife. This seems to bear out the assessment made by Dr Alroe that there is a very strong bond between husband and wife, and that there is also a very strong will in Mr Dawes to seek improvement. In respect of the right leg, Dr Cook assesses the loss of function at 30 to 32 per cent; Dr Doughty at 35 to 40 per cent. It .is clear enough that at least one further operation on the knee will be required when parts of the prosthesis will be replaced. It is also possible that there will be two such operations. Dr Cook seemed to think it was more likely than not that two would be required because of Mr Dawes's comparatively young age. There is always the possibility of there needing to be an arthrodesis, but this seems to be a very remote possibility. There is a shortening of the right leg which at present is dealt with by having a raise on the shoes and boots that Mr Dawes wears. One of the things that took a while to sort itself out in the trial was the question of the financial position of Mr Dawes with the first defendant. It became clear enough during the trial that the first defendant's policy is to ensure that its staff personnel do not lose income because of injury sustained at work. Consequently Mr Dawes has been kept in 1C ?0 50 60 12 JUDGMENT c -- 12 of 19 -- 061294 T1-5/RT M/T MKY489/94 (Demack J) employment at a rate which is the same as the rate he was earning as a foreman, apart from the shift allowance that is paid to such men. consequently the loss of wages has not been as substantial as one might have thought in view of the time that Mr Dawes has been off work. so far as workers' compensation periodic payments are concerned, the policy of the first defendant is that it pays the normal wage to its injured staff person and that person then assigns back the workers' compensation to it. Both counsel agreed that in assessing past economic loss the value of that periodic payment by the Workers' Compensation Board, which, of course, has to be deducted in the final sum, should be allowed as past economic loss. That sum is $58,360.75. The other past economic loss is simply the loss of shift allowances, and this amounts to some $55,000. The total of past economic loss then, calculated precisely, is $113,404.87. Interest on the part that relates to loss of shift allowances amounts to $17,834.29. A good deal of time was taken up with the question whether the plaintiff would get promotion from his position as a mining dragline foreman to the position of senior foreman, and also whether he would have become a mining superintendent. A good deal of the relevance of the debate disappeared when the pay structures for those three positions were put before the Court in the evidence of Mr Wandmaker. 50 60 13 JUDGMENT -- 13 of 19 -- 061294 T1-5/RT M/T MKY489/94 (Demack J) After that, the debate between counsel changed somewhat. For the purposes of assessing damages Mr Jones, Queens Counsel, who appeared for the plaintiff with Mr Baulch, submitted that I should proceed to assess damages on the basis that Mr Dawes would have certainly continued as a mining dragline foreman. This would have meant that he would have continued receiving the shift allowances that go with that job. These shift allowances are now in excess of $20,000 a year and mean that, for example, the gross pay for a mining dragline foreman is now $101,800 per year whereas the senior foreman who has a more senior position receives a gross pay of $93,000. However, because his basic rate of pay is some $13,000 more and because superannuation payments by the employer amount to 14 per cent of base pay, obviously there are benefits for the senior foreman which go beyond the actual gross pay calculated on an annual basis. It would seem fairly obvious that to avoid all this massive calculation Mr Jones has taken the approach which he commended. Mr Britton, who appeared for the first defendant, was anxious to promote the plaintiff once these figures came before the Court because of the effect that that might appear to have on the calculation of damages. As I said at the outset, it is clear that the plaintiff was a valued employee. There was some criticism of his skills in man management. However, these criticisms have to be measured against the reports that are being written at the moment by the person who is his immediate superior, Mr Cooney. Mr Cooney, in the last two assessments he has made :o "..:..·.: 50 60 14 JUDGMENT c -- 14 of 19 -- 061294 T1-5/RT M/T MKY489/94 (Demack J) of Mr Dawes, has spoken in quite glowing terms of his ability, including his ability to work in a team situation, and it seems to me that whatever inadequacies there were in the past, these are no longer compelling. However, to avoid the complexities of trying to assess when and if he would have been promoted, it does seem to me that there is much to commend the approach Mr Jones has taken, namely that the gross disabilities that Mr Dawes has suffered do involve a loss of economic capacity and that is best reflected in the value of the shift allowances that he has lost. Clearly he can not move around the mine with the facility that he had. Clearly he does not have the energy that he previously had. This combination of factors which arises .from his disabilities does reduce his economic capacity in the mine setting. Away from the mine it is doubtful that he would find any place to exercise his economic capacity. So for the future I propose to proceed on the basis that his basic loss is that of the shift allowance. Mr Jones has proposed a loss of shift allowance for 20 years. There is no clear evidence as to when the plaintiff would otherwise have retired, but that seems to me to be a reasonable approach on this basic question of loss of economic capacity. However, in addition to that there is also tha~spect that Mr Dawes will not be able to continue working up to a normal retirement age, whatever that might be. The reason for this is his psychological condition. This was an issue raised by Or Alroe. It seemed to me that he raised it in fairly 20 30 50 15 JUDGMENT -- 15 of 19 -- ---------- ----- 061294 T1-5/RT M/T MKY489/94 (Demack J) general terms but then later as his evidence went on he consolidated it a bit in a way which seems to me to be possibly over-stating the situation. Mr Dawes does have serious psychological problems but he has received great benefit from the recent treatment and he is obviously very strongly supported by his wife and by his basic commitment to doing all that is proper to maintain his work, his loyalty to the company and his support of the family. The loss of shift allowances as calculated by Mr Jones amounts to $133,280. It seems to me that a rounded off sum of $200,000 fully takes account of the prospect of early retirement, bearing in mind the high level of pay in the work that Mr Dawes was doing. So I assess future economic loss at $200,000. The other items that are claimed relating to special damages were not put in dispute by Mr Britton. So the total amount of special damages, including interest, is $56,788.38. There is a substantial claim for future expenses relating to the building up of shoes, the provision of pharmaceuticals and Panadol and knee guards and elastic bandages, future knee replacements. These items were not put in dispute by Mr Britton. However, there are two items in Mr Jones's claim, Exhibit 55, namely the number of visits to a general practitioner and to a psychiatrist which were questioned. It seemed to me that there was no justification in the evidence .-' ,;; '.~ 50 60 16 JUDGMENT c -- 16 of 19 -- 061294 T1-5/RT M/T MKY489/94 (Demack J) of Dr Nothling or Dr Alroe for the assumption that constant visits to a psychiatrist for the rest of Mr Dawes's life will be needed; rather it would seem to me that a period of about seven years would be sufficient allowance, and that, coupled with the amount of general practitioner visits that Mr Jones has claimed, I will allow in the amount of $6,500. If that is too restricted a view on the need for psychiatric help I will balance it by leaving the claim for travelling expenses at the amount suggested, namely $10,000. So the total for future needs I would assess at $35,555.05. There is no challenge to the amount claimed for services gratuitously rendered by Mrs Dawes, which I would assess at $5,090 with $550 for interest. Mr Dawes has suffered a very complex set of injuries which have transformed his way of life. He very much enjoyed his work and was a very dedicated employee of the first defendant. He had obviously been selected out from the men to fill a staff position and his glowing reports these days indicate the general capacity he had to contribute to the life and work of the first defendant and to enjoy doing it. His home life was also very significant to him, but this is now grossly disrupted because of his fatiguability. Most of the time when he is at home he is asleep. He has had a series of operations on his right leg, as well as operations to his left wrist. He is left with significant 50 ~0 17 JUDGMENT -- 17 of 19 -- 061294 Tl-5/RT M/T MKY489/94 (Demack J) orthopaedic injuries which, for a man who had always earned his living with his hands and with his physical strength, would mean that outside of his present employment there would be very few jobs open to him. He faces the prospect of two further operations to his knee. He will be on a regime of anti-depressant drugs for a very long time. He will still live with that embarrassment because needing psychiatric help is something that carries something of a stigma in the community. For all of these matters I would allow by way of damages for pain, suffering and loss of amenities an amount of $90,000. I will allow interest on $40,000 of that amount, a sum of $4,320. The total of the assessment then is $523,542.59. The amount of the refund to Workers' Compensation is $96,074.11. So the total judgment then is $427,468.48. There will be judgment for the plaintiff against the first defendant for $427.468.48 together with costs to be taxed. It does not seem to me that the second defendant has incurred any separate costs in defending the action, so I will order that the action against the second defendant be dismissed with no order as to costs. HIS HONOUR: In respect of whether two counsel should have 20 c ;) c 50 60 18 JUDGMENT -- 18 of 19 -- 061294 T1-5/RT M/T MKY489/94 (Demack J) been retained for the plaintiff, it seems to me generally this is a matter for the Taxing Officer and it is a matter dealing with the question, taking into account the issues in each particular case. Here, of course, there were complex issues in relation to the medical evidence, and particularly with the varying views taken by the psychiatrist. This is frequently seen as a justification for using two minds rather than one. 10 20 50 60 19 JUDGMENT -- 19 of 19 --