Dickson v Mount Isa Mines Ltd [1990] QSC 399

IN THE SUPREME COURT OF QUEENSLAND No. 57 of 1988 Before Mr. Justice Cooper BETWEEN: CATCHWORDS: Counsel: Solicitors: DAVID DICKSON MOUNT ISA MINES LIMITED JUDGMENT - COOPER J. Delivered the 30th day of November, 1990. R.J. Douglas for plaintiff J.P. Barbeler for defendant Plaintiff Defendant V.R. Moffatt & Associates for plaintiff Conroy & Conroy as town agents for Bowdens for defendant Hearing dates: 2, 3, 10, 11 and 18 May, 1990. -- 1 of 17 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: DAVID DICKSON MOUNT -ISA MINES LIMITED JUDGMENT - COOPER J. No. 57 of 1988 Plaintiff Defendant Delivered the 30th day of November, 1990. The plaintiff is a married man born on 1 June, 1950. On 8 April, 1987 he was an employee of the defendant working at its Hilton mine. On that day he was engaged in working as a pipe layer. Normally he was engaged as a plate layer. Whilst engaged in lifting a piece of drilling equipment described as a rising feed, he stood up with some force and the top of his head came into contact with a rock bolt he had recently inserted into the roof of the tunnel. In consequence, he sustained an injury to his neck. The defendant has denied liability or, alternatively, says that the injury was contributed to by the negligence of the plaintiff. On 8 April, 1987 the plaintiff was the leading hand in the three man gang engaged in the pipe laying work. The plaintiff was usually employed as a plate layer/timber man although pipe laying formed part of the works he had contracted for. The plaintiff had had considerable experience in drilling in mine~ and using a rising feed. His experience, I find, was limited to -- 2 of 17 -- 2 drilling and placing rock bolts. The significant difference between rock bolting and placing bolts for piping lies in the fact that rock bolts stand out from the roof of the tunnel approximately five to six inches whereas bolts for piping stand out approximately twelve to eighteen inches. The procedure for drilling and inserting the bolts using a pneumatic wrench is otherwise the same. The placing of bolts for piping requires that the bolts be aligned and that the hangers to carry the pipes are all at the one level. This requires the use of a string line to establish level and distance between bolts. Rock bolting is a more random procedure to secure the rock surface or wire·mesh to retain rock. The procedure in pipe laying involves the fixing of a string line below the roof of the tunnel and the marking off of the line at five to six metre intervals with white paint. At each interval two holes are drilled and two bolts inserted so as to allow a pipe hanger to be attached at the level of the string line. In order to drill into the roof the workman works from the platform of a truck. The platform may be raised or lowered to enable the workman to perform his task from the correct height. The rising feed weighs about 45 kilograms. It can have attached to it drilling bits of various length. It has a pin in the base plate which is used to pivot the equipment when it is being lifted or swung into the vertical position for use. It operates by air pressure and water and air are fed to the equipment by way of attached hoses. The procedure is to lift the rising feed, drill two holes to the requisite depth, place the rising feed oh the platform, detach the hoses from-the rising feed and attach -- 3 of 17 -- 3 them to the pneumatic wrench, insert glue in containers into the drill hole and, finally, to drive the bolts into the holes and the glue using the pneumatic wrench. I find that the defendant had given an instruction to its employees of which the plaintiff was aware that after insertion of the bolts the platform was to be lowered to its normal position on the truck. The obvious purpose of such an instruction is to remove the workman away from the exposed bolt lest the workman strike his head or upper body against it as he moves around or stands up if he is obliged to reach down to do anything at the level of the platform. The plaintiff' was supplied with a safety helmet to protect his head against striking anything protruding from the roof of the tunnel or anything that may fall from it. The only light available to the plaintiff was that provided from the lamp on his helmet and such lamp light as came from the helmets of two other employees who worked with him. On the day in question the plaintiff was the person who gave the instructions to raise and lower the platform on the truck. The truck did not move from one location to another without an instruction from the plaintiff. The procedure adopted by the plaintiff was to complete the fixing of the two bolts in each position and then to lift the rising feed and lay it against the string line to establish his level and, whilst standing in that position, to direct the truck to drive forward to the next work location. At the next location he would immediately commence to drill. I find that the plaintiff adopted that practice because he formed the view that it was quicker than lowering the -- 4 of 17 -- 4 platform, directing the truck to proceed to the next location, and then raising the platform to commence drilling at that location. I find that the plaintiff was concerned to get the job finished as quickly as possible on that shift, having been told by a supervisor that the supervisor wanted the job finished for the next shift. There is nothing in the evidence which persuades me that the time available to do the work was insufficient to allow the work to be done in safety. If the plaintiff had followed the procedure of which he was aware and lowered the platform and not attempted to lift the rising feed as he did he would not, on balance, have suffered the injury which he did. To the extent that he was working in a static location, the sequence of work would not have required him to lift the heavy piece of equipment in the forceful manner he did and he would not have been at risk of his head coming into contact with the protruding bolt with considerable force. As the plaintiff was equipped with a safety helmet to protect him from accidental bumping or striking of the bolt in the period after the bolt was inserted and the platform lowered, it was not incumbent upon the defendant to give an instruction or warning to the plaintiff not to stand up under protruding bolts. In that case, such an instruction "was a basic counsel or caution of which he was or must be aware". (Raimondo v. South Australia (1979) 23 A.L.R. 513 at 518-519.) It was submitted by the plaintiff that the defendant ought to have directed the plaintiff not to lift the rising feed when he was on the raised platform in close proximity to the projecting bolt or ought to have equipped the platform with some -- 5 of 17 -- 5 stowage device which would enable the rising feed to be secured in a vertical position after use. This, it was submitted, would eliminate the prospect of the plaintiff lifting the equipment in close proximity to the bolt and injuring himself as he did. In my view the submission is misconceived because it attempts to build into the procedure adopted by the plaintiff steps which would have avoided or minimised risk of the injury which he sustained. The system of work employed by the defendant, namely, the lowering of the platform and the transporting of the rising feed laying horizontally on the platform to the next site where it was next to be used, would have avoided the injury to the plaintiff. In the instant case the plaintiff was injured because he devised a system to do the work which cut corners in the interests of speed and efficiency. The fault of the defendant lay in the fact that it knew or ought to have known by proper supervision that its employees were in the habit of not lowering the platform and moving from one site to another with the platform up with a workman on the platform and possibly holding heavy equipment. The defendant failed to stop the practice and direct and supervise its employees in such a way that the proper, safe system was complied with. I accept the evidence of Just (transcript p. 80 11. 12-60) and Wharemate (transcript p. 105 11. 14-32) that it was a common practice for persons after completion of the task at one location to remain on the raised platform as the vehicle proceeded to the next work station. I find that such behaviour was known to the supervisors of the defendant or ought to have been known if a proper system of -- 6 of 17 -- 6 supervision was in place and being carried out. Mr. Slater, the shaft and construction foreman of the defendant at the Hilton mine, gave the following evidence in relation to the movement of workmen on the platform:- "We are talking only now about the movement from mark A to mark B - I don't meaning (sic) drumming up and down the driver or anything like that, but if you have got that machine moving from where you have installed one set of bolts to where you are going to install thenext set of bolts, in those circumstances, would the crew stay on - would a man stay on the platform?-- I have no objection to them staying on the platform moving from point A to point B. Do they have to do anything------?-- Normally after he has installed his bolts, he has got his air on to his impact gun. When he is moving, you are pulling· hoses along behind and making sure that those hoses are not snagging and changing his hoses on to his rising feed ready for the next hole. What about the height of the platform?-- The platform must be lowered down. Then if it's lowered, he is riding on it, from whatyou have told us, doing these things but the platform must be lowered?-- Yeah. If I can make a point, when you are moving this machine, you have got your hoses hung behind you, your machine is going first. Your hoses are hanging over the back of your machine and they should be making sure that they don't snag on anything as they are pulling them along. BY MR. BARBELER: to be lowered?-- You say that you expect the platform Yes. Why do you expect that. How does the worker know that?-- You can't ride on - you are not supposed to ride any distance on the back of those Comeng' s. When you are shifting you should lower it because you don't know what height you have to lift it to on your next hole. How would they know that?-- They are told. If a person does stay on between point A and point B while it's moving, what should be the position of the rising feed?-- Should be laying on the top of the Comeng. -- 7 of 17 -- 7 What do you say to the proposition that a person might hold the rising feed either with or without a steel upright preparatory to moving or whilst moving?-- I would be dead against that. Why is that?-- you had a lump it would lurch you falling. If you were driving along a drive and and the wheels went over that lump and the platform and there is a chance of Would you do anything about that if you saw that happening?-- I certainly would." From the evidence of Just, Goedhart and Wharemate, which I accept, other than the instruction to lower the platform after completion of the task the proper instructions which Slater correctly identifies as being necessary, if workmen are going to travel on platforms with equipment, were not at the relevant time being given. There is a danger that if the employees are permitted to remain on the platform after the task is finished, while being transported to the next site, the discreet steps in the system of work tend to break down and the end of the drilling and fix task at one site merges into preparation for the commencement of drilling at the next site. That is what occurred in this case. Although the injury occurred in a static location and the allowing of employees to travel on the platform did not directly cause the plaintiff's injury, the plaintiff was commencing his preparation for the next task by lifting the rising feed to align it with the string line before instructing the driver to proceed forward with the plaintiff standing on the platform. An instruction to lay down the rising feed if given and enforced, where the employee was to remain on the platform, would have broken the sequence of steps taken by the plaintiff. The defendant's system of training is to place an employee with an experienced man to receive instruction on the job and to -- 8 of 17 -- 8 receive instructions from supervisors or foremen. There is no specific training in respect of specific tasks e.g. pipe laying. In the case of the plaintiff, I find that there was no specific training or instruction in respect of the procedures to be followed in pipe laying. I find that the plaintiff was an experienced driller and rock bolter but had had little actual experience in laying pipe work. I find that the plaintiff developed his own system of work, relying, in part, on his observation of what others did in performing such a task and with a view to speeding up the operation. I find that the defendant failed to make any proper enquiry as to the experience of the plaintiff or the procedure he would adopt in performing the task before he was allowed to undertake it. Any such enquiry would have revealed that what he. intended to do was unsafe and would, I am satisfied, have led Mr. Slater to give appropriate instructions. I find that the defendant was negligent in failing to properly supervise and enforce compliance with the normal and safe system of work, in particular, in failing to ensure that the platform was lowered after the bolts had been secured in position. I find that the defendant was negligent in failing to properly instruct the plaintiff as to the sequence and manner in which the tasks associated with the placing of bolts for piping was to be undertaken and that, if he intended to travel on the platform the rising feed ought to be laid on the lowered platform. I find that because Mr. Slater knew the plaintiff was experienced in drilling and bolting and had previously seen the plaintiff engaged in pipe laying he-assumed that the plaintiff -- 9 of 17 -- 9 had greater experience in pipe laying than he had in fact. I find that by allowing the plaintiff to prepare for the next work function in proximity to the protruding bolt, it was foreseeable that the plaintiff would stand up and strike the bolt injuring himself as, in fact, occurred. It was submitted by the plaintiff that the work was repetitive and that the injury occurred as an act of inadvertence or thoughtlessness and as such not conduct amounting to contributory negligence (Sungravure Proprietary Limited v. Merni (1963-1964) 110 C.L.R. 24). The failure of the plaintiff to lower the platform was a conscious act which the plaintiff.knew was contrary to the instructions given by the defendant. I am not satisfied that the decision was forced upon the plaintiff by the pressure of the work to be undertaken or any unreasonable time constraint. The decision to cut this corner in the interest of speed operated directly on the harm which he suffered. This is notwithstanding that the actual lifting of the equipment and the striking of the bolt occurred as a result of his not ascertaining where the bolt was before he undertook the lift, which failure, I accept, was an inadvertent or thoughtless ac~. In the result, I find that the plaintiff contributed to 25 per cent of the harm which he has suffered. Although there was no immediate pain, the plaintiff experienced pain in his neck and right upper arm the next day. On 10 April, 1987 he presented to the defendant's doctor and was X-rayed and treated with physiotherapy and anti-inflammatory drugs. He was treated and reviewed in April and May 1988. By -- 10 of 17 -- 10 February 1988 the plaintiff's neck pain had deteriorated and he had a decreased range of all neck movement due to pain. On 8 March, 1988 a myelogram was performed by Dr. R.G. Rossato, neurosurgeon. This indicated a broad indentation at CS/6 on the right, consistent with a disc lesion. On 17 March, 1988 a single level anterior interbody surgical procedure was performed by Dr. Rossato. The plaintiff initially recovered well from the operation and was returned to work by Dr. Conway, the defendant's staff doctor, on 17 May, 1988 with restrictions for heavy lifting and no overhead work. On 30 May, 1988 the plaintiff presented to Dr. Conway with neck pain and headaches at the end of the working day. The pain was being brought on by the use of a hard hat and lamp underground during the day. Notwithstanding a programme developed by an occupational therapist to build up a graduated programme aimed at achieving pain-free wearing of the hard hat for the entire day, this has not proved successful. Dr. Gavin Douglas, orthopaedic surgeon, reviewed the plaintiff on 1 December, 1988. In his opinion, X-ray examination revealed that the cervical fusion was then not yet sound and recommended further physiotherapy to try and redevelop the neck muscle tone. The plaintiff was further re-examined on 10 October, 1989 by Dr. Douglas. In a report dated 13 October, 1989 Dr. Douglas states:- "On examination there was a normal range of rotation and flexion of his neck with slight restriction of extension and a complaint of discomfort with full neck extension. There was tenderness of the muscles down the left side of his neck. He had a tendency to hold his head held forward which was apparently the most comfortable position for him. -- 11 of 17 -- 11 I ref erred him for further x-rays of the cervical spine which were taken on the 10th October 1989. These x-rays showed the bodies of CS and C6 were now soundly fused. This man has residual symptoms of neck aching and headaches following a CS/6 fusion but has little or no discomfort in his arm. I think he is probably as good as he is going to be and I would regard his present level of disability as being permanent. I do not think he will be able to wear a hard hat or carry a light on his head for prolonged periods of time and for this reason I would regard him as being unfit to return to underground work." The plaintiff is presently 40 years of age. He was 36 when injured. He has been engaged in underground mining with the defendant since 1981 . His previous work experience wa,s in smaller underground mining and station work. He left school at 15 years of age and has no academic training or trade qualifications. The plaintiff, I find, has a permanent disability of the neck which will preclude him from engaging in underground mining with the defendant, or in any mine situation where the wearing of a hard hat and lamp is necessary. I find that, on the balance of probabilities, the plaintiff would have continued to work with the defendant underground for as long as employment was available and he was physically fit for the work. I do not accept as a matter of probability that the plaintiff would have left the employment of the defendant to return to the mining fields at Cooper Pedy for any of the possible reasons contended for by the defendant. The matrimonial problems of the defendant and his former wife precluded his having sufficient capital to undertake such a move to self-employed prospecting. The plaintiff is still employed by the defendant aboveground. He is now employed as a sampling supervisor. He -- 12 of 17 -- 12 took up that position on 28 November, 1989. Prior to that he was employed as leading hand in the core shed, a position he had held for 18 months. So far as the evidence discloses, the plaintiff is secure in his present employment with the defendant. I find that if the plaintiff were forced onto the open labour market, he would be at a distinct disadvantage because of his lack of education or trade skills and his inability to perform heavy lifting or manual work. He would be reduced to light unskilled labouring or supervising functions. Evidence was given by Mr. J. Cox, chartered accountant, in relation to the comparative financial position of the employee who took the plaintiff's position and the plaintiff from the date of accident to March 1990. Without taking overtime into consideration, the plaintiff was, at 11 March, 1990, $562.58 per fortnight or $281 . 29 per week worse off. On the other hand, the plaintiff was earning more overtime so that the nett loss was approximately $230. 00 per week. In order to earn the extra overtime payments, the plaintiff had regularly been working six or seven day weeks. The additional money was therefore at a significant cost to the plaintiff's general amenity of life. The extra hours were necessarily worked because of the position held. They were not a matter of conscious choice. The plaintiff, at the time of his injury, suffered from high blood pressure which required him to take medication daily. He had suffered a number of injuries underground and, although they resolved themselves and did not interfere with his work, some of the injuries were to the lower back. He was also losing his hearing due to working with industrial machines and on each test -- 13 of 17 -- 13 every two years his hearing was markedly worse. From working with vibrating machinery he had developed carpal tunnels which resulted in some numbness in the arms. Although none of these conditions interfered with his capacity to work, they demonstrate that mining is a hard and hazardous occupation which takes its toll on the human body. There may be examples of older persons continuing in such work underground, however, I am of the opinion that, on balance, the plaintiff would have ceased heavy underground mining by age 50 and, more probably than not, changed to light duties with the defendant or some other employer to age 60. The present value of $230.00 per week nett on the 5 per cent tables for 10 years is $94,398.00. The plaintiff has some prospects of promotion in his present employment although he is reluctant to accept positions of authority and this will hold him back. His present base salary is subject to annual review and he may move upward in the range over the next few years, depending upon satisfactory performance. There is some unquantified superannuation benefit advantage in his present staff position over working underground because each is computed on base salary, his present base salary being higher than a plate layer working underground. There are other incidental benefits, e.g. commuting one week's holiday and contributions for medical services. Taking account of the prospects of betterment because of his present staff position and the normal exigencies of life, and recognising that I have reduced the working life to 10 years because of the particular circumstances of the plaintiff and the particular occupation in which he was engaged, I consider that -- 14 of 17 -- 14 a sum of $80,000.00 is an appropriate figure for future economic loss. Mr. Cox also gave evidence that as at 11 March, 1990, without taking overtime into consideration, the plaintiff was $24,726.95 worse off than the comparative employee, Mr. Allen. The nett weekly disadvantage as at 11 March, 1990 was approximately $230.00 per week after taking the overtime of both the plaintiff and Allen into account as appears from the evidence of Cox. From March 1990 to judgment is approximately 38 weeks. The additional past loss is therefore approximately $8,700.00 nett. Discounting for contingencies, I consider $30,000.00 is an appropriate figure for past economic loss. I turn to the plaintiff's claim for loss of amenities. The plaintiff spent four to five days in hospital after the surgical intervention to fuse the discs. He was in a neck brace for two months after the operation. The plaintiff gave evidence of severe debilitating pain and headaches prior to the operation. The pain radiated from the neck down the right arm. After the operation the pain down the arm went away. However, the plaintiff has continued to suffer from neckaches and headaches of varying degree on a daily basis. As was apparent from watching the plaintiff in court, he holds his head forward all the time. This, he says, helps his pain. The evidence of the physiotherapist, Ms. Nye, was to the effect that the pain was muscular or postural and that the plaintiff should have improved more than he has after the operation. There is no suggestion in the report of Dr. Douglas, the orthopaedic surgeon, that the plaintiff's condition is caused by bad posture or is anything -- 15 of 17 -- 15 other than permanent. I accept the opinion of Dr. Douglas in preference to that of the physiotherapist. I do not accept the suggestion made by the defence that the pain is exaggerated or anything other than intermittent moderate pain. The clear impression I gained listening to the plaintiff is that he does not like a staff position aboveground with the responsibility that the position entails. · I have no doubt that if the plaintiff could work underground with a moderate degree of pain he would do so. I am satisfied that the headaches and pain that the plaintiff suffers are real and substantially interfere with his amenity of life. I accept his evidence that his ability to go prospecting for gems or gold, which was a hobby he previously engaged in, has been impaired to a significant degree. As I indicated above, the need to work substantial overtime, while reducing his economic loss, has in the past and will in the future reduce the recreational time that he would otherwise have had available. I am of the opinion that an appropriate figure for past and future pain, suffering and loss of amenities is $30,000.00. Interest should be awarded on $10,000.00 of the award for past pain, suffering and loss of amenities. The plaintiff swore that he had in the past, and at the date of trial, used a pack of 100 Panadene tablets each fortnight. No evidence of cost was given. I will allow $500.00 for past and future medication. The special damages total $6,057.12 and the plaintiff is obliged to repay to the Workers' Compensation Board $15,938.39. Of this amount $5,922.53 was paid as weekly benefits (gross) between 1 March, 1988 and 26 May, · 1989. Tax in the sum of -- 16 of 17 -- 16 $1,626.81 was deducted. Additionally, a disability settlement of $5,585.00 was paid on a date not disclosed by the evidence. In the circumstances, I propose to allow interest on $20,000.00 of the past economic loss at 6 per cent from the date of the injury to judgment. The plaintiff's damages ought therefore to be assessed as follows:- (a) Pain, suffering and loss of amenities (b) Interest on $10,000.00 of (a) above at 6 per cent for 3.5 years (c) Past economic loss (d) Interest on $20,000.00 of (c) above at 6 per cent for 3.5 years (e) Impairment of earning capacity (f) Special damages (g) Past and future medication Less 25 per cent contribution Less workers' compensation refund $ 30,000.00 $ 2,100.00 $ 30,000.00 $ 4,200.00 $ 80,000.00 $ 6,057.12 $ 500.00 $152,857.12 $ 38,214.28 $114,642.84 $ 15,938.39 $ 98,704.45 There will be judgment for the plaintiff against the defendant in the sum of $98,704.45 with costs of and incidental to the action, including reserved costs, if any, to be taxed. -- 17 of 17 --