Blackman v Mount Isa Mines Ltd [1992] QSC 348

IN THE SUPREME COURT OF QUEENSLAND MOUNT ISA DISTRICT REGISTRY Writ No. 3 of 1991 BETWEEN: AND: CATCHWORDS: Counsel: Solicitors: BOYD IAN BLACKMAN Plaintiff MOUNT ISA MINES LIMITED Defendant REASONS FOR JUDGMENT- HELMAN A.J. Delivered the first day of October, 1992 Master and servant - personal injuries - damages for negligence J.J. Clifford Q.C. with him T.D.O.J. North forthe plaintiff S.C. Williams Q.C. for the defendant Conroy and Conroy for the plaintiff Bowdens for the defendant Hearing dates: August 13, 14, 17, and 18, 1992 -- 1 of 11 -- IN THE SUPREME COURT OF QUEENSLAND MOUNT ISA DISTRICT REGISTRY Writ No. 3 of 1991 BETWEEN: BOYD IAN BLACKMAN Plaintiff AND: MOUNT ISA MINES LIMITED Defendant REASONS FOR JUDGMENT- HELMAN A.J. Delivered the first day of October, 1992 This action arises out of an incident which occurred on September 18, 1990, when the plaintiff was employed at the defendant's mine at Mount Isa, Queensland. It is common ground between the parties that the defendant operated a cage called R62 as a conveyance for carrying persons to and from underground levels of the mine, that the plaintiff was employed as a load.haul dump unit operator on the 20 secondary level, and that the cage was operated by another employee of the defendant who was known as a platman. In the amended statement of claim the plaintiff framed his claim as one for damages for negligence or breach of contract or breach of statutory duty, but in addressing me at the end of the trial Mr. Clifford Q.C., for the plaintiff, confined the plaintiff's case to three bases: the negligence of the defendant itself ·as particularized in paragraph 17 A(a) to (j) of the amended statement of claim, the negligence of the platman and a level supervisor as particularized in paragraph 17 B(a) to (h) -- 2 of 11 -- 2 for which the plaintiff asserts the defendant is vicariously liable 1 and the negligence of other workmen in the cage as particularized in paragraph 17 C(a) to (c) for which the plaintiff asserts the defendant is also vicariously liable. The defendant denies that it is was negligentr and says that if it was negligent the plaintiff was guilty of contributory negligence. The R62 cage was a lift with two decks 1 each with a capacity of ninety-two persons. The platman was the only man allowed to open the gates and let the passengers in. They come in on one side of the cage and go out on the other. The plaintiff 1 who had been employed by the defendant from February 22 1 1990 1 entered the lower deck 1 which is shown in the photograph exhibit 42, at the beginning of the afternoon 4.00 p.m. to midnight shift 1 on September 18 1 1990. He and the other men who entered the cage stood in four rows across it; he was in the second row from the left. There were about thirty or forty men in the cage in front of him and about the same number behind 1 leaving about six inches between him and the man in front of him and six inches on each side of him. Suddenly a push came from behind and a "crib port"r a small steel suitcase carried by miners 1 was forced into the plaintiff's back. (On the front of exhibit 34 is a photograph of miners carrying crib ports.) The crib port in question was hung around the neck of a man behind the plaintiff. The line of men in which the plaintiff was standing moved forward with the push and then the men in front of the plaintiff pushed back forcing the plaintiff harder onto the crib port. When these pushes occurred -- 3 of 11 -- 3 the cage doors behind the plaintiff were open, the steel door in front of him was closed, and the cage was stationary. The plaintiff was unable to cause himself to move once the push started. When the pushes occurred in the cage the platman and shift bosses were present but they said nothing. The plaintiff felt pain in the lumbar region and loin. When the plaintiff arrived at the level he was to work on that day, 20 secondary, he was put on the job of driving a battery powered train called a mule onto which he was to load rubbish. Mr. Ian Mackenzie, his shift boss, assigned him that task in the crib room. He made no complaint about his back then to Mr. Mackenzie. After he had begun his work, after 5.00 p.m., he spoke to Mr. Mackenzie and told him that his back had been hurt in the cage. Mr. Mackenzie took the plaintiff back to the crib room, arranged for the platman to bring the cage down and notified the nurse at the ambulance station on the surface. The nurse put an ice pack on the plaintiff's back and he returned to the 20 secondary level with a certificate restricting his duties. He was reclassified to Code 10, which meant that he was allowed to lift ten kilograms only once every ten minutes between the shoulders and the thighs. Mr. Mackenzie told him to sit in the crib room. The plaintiff later that day had another ice pack applied to his back. Dr. Merle Gray, a doctor employed by the defendant, examined the plaintiff the next day and the plaintiff returned to work on the afternoon shift. He was given the job of driving a Toyota four-wheel drive vehicle. After working for some time he asked -- 4 of 11 -- 4 Mr. Mackenzie for permission to go home as driving the Toyota on the rough floors was causing his back to hurt. allowed him to go. Mr. Mackenzie The plaintiff was seen by Dr. Gray again and he then took some five days off work apparently mistakenly thinking that Dr. Gray had certified for his absence. The personnel field officer visited the plaintiff at home. Dr. Gray saw the plaintiff again and certified that he should be put on light duties. That was done. He was given a job hosing with a high pressure hose on the surface. The plaintiff's back was still painful when he was performing his hosing job so he went to see his own doctor, Dr. Anthony Jenkins. He took holidays from October 1 to October 12 and went to Ipswich. The plaintiff returned to work on October 15, 1990, when Mr. Mackenzie assigned him to drive the mule. Later in that day the plaintiff spoke to Mr. Mackenzie by radio saying that he was going home as his back was sore. Mr. Mackenzie asked, "How did it happen?" The plaintiff replied, "Lifting a man car pin." A man car pin is a piece of drilled steel about three feet high which fits into a slot on a flat top man car which is a car moved by the mule. Its purpose is to stop things falling off the car. In his evidence-in-chief the plaintiff said that his back was injured on October 15 -his back had a sharp pain, his left leg went limp, and he had a burning sensation. He said that that had happened when he had attempted to change the points on the tracks on which the mule ran. He described his action thus: "You just bend down and just pull it up. It changes the track." -- 5 of 11 -- 5 He was there clearly enough referring to a lever which is about a metre long and which operates the points. In cross-examination he said his practice had been to take hold of the lever while crouching down in a squat, to pull it half-way to the vertical position, and then to walk around to the other side of the lever and push it down with a foot. Following that injury the plaintiff consulted Dr. James Geoffrey Toakley, neurosurgeon, on November 1 2, 1990. After conservative treatment Dr. Toakley operated on him on November 22, 1990 finding a herniated lumbar disc at L5-S1 and performing an L5 laminectomy. The disc hernia had caused nerve root compression. After the operation he had physiotherapy and was discharged on November 26. When Dr. Toakley saw him on December 12, 1990 his back had healed well, he had normal straight leg raising and no reflex or sensory changes. In March, 1992 Dr. Toakley found that the plaintiff's condition had been stable for at least six months. He had some "limited full back range", and some pain in the back and left leg with some changes in sensitivity on the outer side of the left calf. He was unable to bend and lift or sit for long periods. Dr. Toakley's opinion was that his disability was approximately ten per cent of whole body function. An important issue at the trial was whether the plaintiff's present condition was on the balance of probabilities caused, in whole or in part, by the incident in the cage. The plaintiff's present condition goes back to damage of the L5-S1 disc, and the issue was whether that disc damage was more probably than not caused in the push in the cage. -- 6 of 11 -- 6 Dr. Bruce Low, an orthopaedic surgeon, gave evidence that the pressure applied by the crib port would be likely to produce local contusion, inflammation, and pain at the point of application, and that, while it would not be impossible for such pressure to cause symptoms to appear in a disc, a "bending/lifting/pulling, incident" would be more likely to cause disc damage. The issue was not of course just one of whether the incident in the cage was more probably than not the sole cause of the plaintiff's present condition, but rather whether it was one cause of that condition. Mr. Clifford submitted at one point in his address that I should find that the incident of September 18, 1990 was a substantial cause of the plaintiff's present condition, and that it was likely that the later incident also contributed to that condition. Mr. Williams Q. C., for the defendant, submitted that the two incidents caused discrete and separate damage, and that the only compensation the plaintiff should recover for any injury suffered in the cage, assuming he ·had otherwise established his case, was for minor back strain with no permanent after-effects. An important question of fact upon which the decision on the issue of causation I have referred to depends is whether it has been established that the plaintiff suffered symptoms in either leg following the cage incident. If he did, it is likely that he suffered some disc damage in the cage; if he did not, then it is not likely that there was any disc damage. On the evidence before me I am not satisfied that any symptoms in the plaintiff's legs have been established. -- 7 of 11 -- 7 The ambulance station treatment card (exhibit 41) records only left-sided "lumbar back/loin pain", with restrictions on movement but no swelling or deformity. When the plaintiff was seen by Dr. Gray on September 19, 1990 he complained of acute left lumbar pain and tenderness over his left loin and over the sixth to the twelfth thoracic vertebrae. She saw him again on September 20 and she recorded that the "sprain" was "quite evident" then. On September 25 she recorded that he was improving slowly. In an application for worker's compensation signed on September 20 (exhibit 37) the plaintiff gave his injury as "LOWER BACK PAIN" and his back as the part of his body injured. The plaintiff consulted Dr. Jenkins on September 26, 1990. Dr. Jenkins recorded that he had pain over the left flank area of his back and some iliocostal pain. He demonstrated limited leg flexion and back flexion. Dr. Jenkins, in his report of April 26, 1991 (exhibit 39), said he "responded well to this minor back injury with physiotherapy and anti-inflammatory medication". The plaintiff consulted Dr. Jenkins again in October 1990, after the incident of October 15, but even then Dr. Jenkins recorded "no neurological symptoms". I do not accept the evidence of the plaintiff or Mrs. Blackman on the subject of leg symptoms following the incident of September 18. I find then that, no symptoms having manifested themselves in the plaintiff's legs following the cage incident, that that incident caused merely a minor local injury the effects of which had cleared up before the incident of October 15, whatever that -- 8 of 11 -- 8 was. I say "whatever that was" because my conclusion is that it was a "bending/lifting/pulling, incident", to adopt Dr. Low's phrase, but I find myself unable to reach any conclusion as to the details of it. It will be recalled the plaintiff told Mr. Mackenzie that he had been lifting a man car pin, and in evidence he said he had been pulling a points-changing lever. I should add that I find that there is no basis for concluding, on the view of the facts that I have formed, that the injury of September 18 caused any predisposition to injury on October 15. I turn now to the question whether the incident in the cage was the result of negligence on the part of the defendant. I find it was. Pushing incidents had occurred many times before September 18, 1990 and proper supervision had not been exercised over the men entering the cage to ensure that they did not recur. Mr. Roy Harris, a union official, gave evidence which I accept that after complaints of excessive pushing had been made in the past and the loading of cages would be supervised for a "couple of shifts" and then things would return to the status quo. In addition, the likelihood of inflicting injury as a result of the practice of allowing the men to carry crib ports so that they were at chest or waist height should have been obvious. Mr. Mackenzie gave evidence that after September 18, 1990 a notice was put up in the cage saying among other things that crib ports were to be carried below lamp battery height. A notice to that effect had not been there before that day. In my view it was reasonably foreseeable that an injury would sooner or later be suffered by an employee of the defendant -- 9 of 11 -- 9 in the cage as a result of the two dangerous practices of pushing and hanging crib ports above waist level. My conclusion is that, had the precaution of proper supervision of those matters been carried out, the injury suffered by the plaintiff would have been averted. I am not satisfied that the plaintiff was guilty of any contributory negligence. I assess the plaintiff's damages for pain and suffering at $250.00. During the addresses I was told that the defendant accepted the mathematical calculation of $52,600.00 advanced on behalf of the plaintiff as the plaintiff's impairment of earning capacity to trial. That calculation is based on the assumption that the plaintiff's present condition is attributable to the incident of September 18, which I find is not the case. I am not satisfied, however, after examining exhibit 51, the plaintiff's payroll record from the fortnight ending July 15, 1990 to the fortnight ending June 28, 1992, that, on the view I take of the facts, the plaintiff has established any impairment of earning capacity attributable to the incident of September 18. My conclusion is that by the time the plaintiff returned from holidays in October, 1990 the effect of the injury of September 18 had diminished to insignificance. The plaintiff's employment with the defendant was formally terminated on July 1, 1992. I should record that in my view although the plaintiff is now unable to undertake heavy work I am not satisfied that before -- 10 of 11 -- 10 he became thus disabled he intended to continue in employment at the mine indefinitely. The parties agreed on special damages of $16, 492.33 (exhibit 50) calculated on the assumption I have referred to above. The only special damages to which the plaintiff is entitled, on the view of the facts I have formed, is for medical and pharmaceutical expenses and physiotherapy following his consultation of Dr. Jenkins on September 26. Doing the best I can, there being no specific evidence on the subject, I assess his special damages at $150.00. ~w-~-jtt€l~merre-ffir-the-~~a+I'l-t-i-f-f-agail::lst ~~erendant~-ror-$~6~fr:-· -- 11 of 11 --