Haylett v Hail Creek Coal Pty Ltd
[2013] QDC 340
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Haylett v Hail Creek Coal Pty Ltd[2013] QDC 340
- Add to List
Haylett v Hail Creek Coal Pty Ltd[2013] QDC 340
Haylett v Hail Creek Coal Pty Ltd[2013] QDC 340
[2013] QDC 340
DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE BAULCH SC
No 403 of 2012
MICHAEL KEITH HAYLETT Plaintiff
and
HAIL CREEK COAL PTY LTDDefendant
TOWNSVILLE
10.02 AM, FRIDAY, 15 NOVEMBER 2013
JUDGMENT
HIS HONOUR: Michael Keith Hayward claims damages in respect of injuries sustained by him whilst employed the defendant. By its further amended defence, the defendant admits both liability and causation. Accordingly, the issues in this matter relate only to the quantum of damages.
By its written submission, the defendant conveniently summarised the issues in the trial as follows. First, to know to an extent of the pre-existing degeneration in the cervical spine. Second, the time at which an injury to the C6-7 disk of the cervical spine might have occurred in any event, and third, the prospects of the plaintiff maintaining employment in his present position, having regard to the future of the Hail Creek Coal Mine, and the ability of the plaintiff to discharge his current function as a drill rig operator.
Prior to the accident, the plaintiff, who was born on the 23rd of August 1971 at Albany in Western Australia, completed training as an auto-electrician in 1992, and then worked doing labouring work, tree-lopping, and at various other occupations, all of a physical nature, including some work as an operator-labourer for a company carrying out drilling works on a railway line. He also worked as a dump truck driver. He commenced employment with the defendant on about the 12th of January 2009. After induction training, he commenced to work as a dozer operator on about the 15th of January 2009. Towards the middle of that year, he commenced training as a dragline operator.
He is a married man with three children.
The material demonstrates that the plaintiff underwent medical examinations pursuant to the coal mine workers’ health scheme in December 2003, September 2004, June 2007 and October 2008. None of those examinations revealed any health condition that would have impacted on his ability to work in the mining industry. In the course of his evidence, Dr Cook explained that he was aware of the nature of those examinations, and that they are very thorough and extensive medical examinations. He conceded that, provided the examination showed absolutely no abnormality – they say that there was full movement strength and power – it was not usual for x-rays or other scans to be carried out. He believed that it would only be in the event of some abnormality appearing on the clinical examination, that examinations of that sort would be carried out in what are known as coal board medical examinations.
Thus it seems appropriate to conclude that if there was any degeneration present in the plaintiff’s cervical spine at the time that he commenced employment with the defendant, it was completely asymptomatic. During the course of his employment with the defendant, the plaintiff’s work performance was reviewed on more than one occasion, and there is no suggestion, either, that there was any significant deficiency in his work performance.
He worked long hours, operating the bulldozer during twelve and a half hour shifts over rough ground and large rocks. He described the work as “continuous, strenuous and jarring.” His description of the work was corroborated by evidence from a Mr Terrence Moore, who had worked in similar conditions to the plaintiff, and was able to confirm the ground over which they were required to operate the bulldozer was rough and rocking. He confirmed that it required the operator to look over his shoulder when reversing, because reversing cameras fitted to the bulldozers were not terribly accurate. He told me that he had neck problems himself, and that on occasions the jarring would be such that his shoulder would be forced up towards his jaw and his teeth, and it would be an experience like being punched. He said that that was a result of jarring when the bulldozer hit a rock. He said it was not uncommon for that to happen more than once a day.
It’s not surprising that liability was admitted by the defendant, because it emerges from a whole body vibration assessment carried out on behalf of the defendant in 2008 that the defendant would have been aware, at least from that time, of the significant risks faced by bulldozer drivers operating in the conditions that I have described. In that regard, see exhibit 1.33. In addition, exhibits 1.36 and 1.37 demonstrate that there was a history of injury occurring to various bulldozer operators over a number of years which would have alerted the defendant to the difficulties they faced in the course of their employment. It should also be remembered that Mr Moore, whose evidence corroborated the plaintiff about the rough nature of the ground on which they worked, was not cross-examined at all.
In that situation, I accept his evidence and that of the plaintiff that the bulldozer operation, filmed in exhibit 1.32, did not represent the usual working conditions faced by bulldozer operators in the employ of the defendant. I will come back to that matter when discussing the medical evidence.
The plaintiff commenced to experience pain in his right elbow in January and February of 2010. He says, and I accept, that he initially thought it was a tennis elbow, and he commenced to wear a bandage on his elbow. But the bandage did not assist him. The pain gradually became worse, and he consulted his general practitioner in April 2010, and was sent for a CT scan of the cervical spine. That scan revealed a C6-7 disc protrusion, and on the 9th of August 2010, the plaintiff underwent a C6-7 discectomy and fusion of his neck. The plaintiff returned to work on the 20th of October 2010 on light duties. He was asked to operate a service vehicle, but lasted less than one shift before ceasing that work.
His employer has since retrained him, and he now works as a member of a drill crew at the mine. He is able to carry out his duties with some difficulty. The difficulties that he encounters now include a muscular type pain the back of his neck, the top of his shoulders and a pain going down to the right elbow. He has tingling, or pins and needles feelings, in his right little finger, and aches and pains that come and go. He finds that physical activity causes his muscles to tighten up. He develops pain in the neck that sometimes takes a couple of days to settle down. He tells me that being seated for more than hour causes pain in his right elbow, and tingling in his finger while operating the drill at work. He has to get up and stretch himself every hour or so to relieve his symptoms. He finds that driving long distances causes stiffness and soreness in his neck and the top of his shoulders.
He tries to avoid lifting and working in confined spaces, and working above head height, so as not to aggravate his symptoms. He no longer uses a ride on mower, because the jarring aggravates symptoms in his neck. He is conscious of the restricted rotation of his neck and finds it difficult to look over his shoulder when reversing a car, and particularly when reversing with a trailer. He continues to take pain relief medication from time to time when the pain increases in his neck, and he uses hot and cold packs to relieve the pain in his neck. All of those difficulties were set out in exhibit 1.1 and his evidence about them was not the subject of any cross-examination, and I accept what he says.
Reports in respect of the plaintiff’s injury were prepared by two medical specialists, Dr Cook, and orthopaedic surgeon, and Dr Weidmann, a neurosurgeon. I prefer the evidence of Dr Cook for two reasons. First, Dr Weidmann explained a change in the way he diagnosed the plaintiff’s injury as being based on the fact that WorkCover had admitted liability. The only sensible interpretation of his evidence, it seems to me, is that his opinion, initially, was one calculated to provide WorkCover with a basis for resisting the plaintiff’s claim. Second, where Dr Weidmann’s view conflicted with that of Dr Cook, it seemed to me that he based that opinion on a viewing of exhibit 1.32, and as I have said, I accept the evidence of the plaintiff and Mr Moore that that exhibit does not accurately depict the conditions in which bulldozer operators worked.
Dr Cooke said, in exhibit 1.12, that it would seem that prior to late January, early February 2010, the plaintiff’s cervical spine remained asymptomatic and if there had been any real or genuine pre-existing degenerative change in the spine at that time, they would appear to have been silent prior to that date. He was cross-examined about that, and it was suggested to him that all he could say was that the plaintiff was asymptomatic, and he confirmed that nothing that he obtained by way of information from the plaintiff or in the material that was provided to him gave any indication of the plaintiff having any problem or any latent condition in his neck prior to January, February 2010.
In that situation, it is necessary to consider whether a finding can be made on the evidence that some pre-existing condition in the plaintiff’s cervical spine predisposed him to injury or contributed to the extent of the injury now under consideration.
It is not in dispute that it is for the defendant to prove the impact of any pre-existing condition or conditions upon the plaintiff’s compensable injury. In that regard, see Purkess v Crittenden (1965) 114 CLR 164 at 168. Now, there is nothing to indicate that the plaintiff, in fact, had any significant degenerative change in his spine prior to 2009. Whilst, as both doctors conceded, one can speculate that a person of his age might have had some degenerative condition in the spine, it is, as Dr Cook points out, interesting to note that there was no degenerative change seen at any other levels of the cervical spine than the one that was injured.
I accept what Dr Cook says about this. That is, that it argues against the existence of pre-existing degenerative change at the relevant level. Thus, I conclude that the cause of the plaintiff’s injury was, on the balance of probabilities, the work that he carried out for the defendant during 2009 and 2010. I am not satisfied that he suffered any degenerative condition likely to interfere with his working life prior to the commencement of his employment with the defendant, nor am I satisfied that he was predisposed to injury. It is not shown that a disc prolapse was imminent, or likely to occur in the near future. The plaintiff was, in my opinion, no more likely to suffer neck injury than anyone else of his age, provided, of course, that he worked in a safe working environment.
The parties are agreed about the great majority of the heads of damages that I must consider. It remains for me to consider the amount that should be allowed for general damages, and the amount that should be allowed for future economic loss. The defendant relied upon Bell v Mastermyne Pty Ltd [2008] QSC 331 and Wright v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 86 in support of its submission that the appropriate award for general damages was $30,000. The plaintiff, on the other hand, relied upon decisions in Suna v Bridgestone Australia Ltd [2008] QSC 125 and Syben v Mackay TFS Pty Ltd [2009] QSC 367, which cases were said to support an award of $80,000 for general damages.
While I appreciate that the assessment of whole person impairment should not be used as the only guide in the assessment of general damages – in that regard, see the remarks of Douglas J in Driver v Stewart and MMI [2001] QCA 444 – I think a useful starting point is to remember that the plaintiff here has a whole person impairment consequent upon the injury to his neck of 25 per cent. I set out earlier in this judgment the effect which he said the injury has on his life and his activities, and I noted that he was not cross-examined about those matters. Now whilst it is true that he is able to maintain himself at work, he does say with some difficulty, and it has been necessary for his employer to retrain him so that he can maintain employment by performing a less strenuous activity.
I mentioned that when he first returned to work he was put in a service cart for a day to see how we went with that. A service cart, I am told, is like a fuel truck which goes around the different machines operating at the mine and fuels and greases them. The plaintiff did not cope well with that work, as it was necessary to pull himself in and out of the machine, as well as to be alert, looking to his left and right all the time for other larger equipment operating on the mine site. He was not able to complete a full shift on that vehicle. See the transcript at page 1-10. The plaintiff acknowledges that it has not been suggested to him that his neck condition will deteriorate, and there is no other evidence on that topic.
The restrictions that the plaintiff suffers are significant ones and will trouble him for the rest of his life. Reliance on comparable assessments presents a difficulty when one has not had an opportunity to hear and see the evidence given in respect of the cases relied upon. They give me no more than a broad general idea of the range of awards of damages that might be thought to be appropriate in particular cases. The significant matters, as far as I am concerned, are the plaintiff’s age, his previously physically active lifestyle, his description of the limitations that he suffers and his ongoing need for pain medication and other pain relief. I think an appropriate award of general damages is one of $60,000.
I turn now to future economic loss. The starting point, I think, is to determine the plaintiff’s pre-injury earning capacity and then consider the extent to which that capacity has been diminished. Because the plaintiff, having returned to work, having been retrained and resumed fulltime work, has earned in excess of what he earned pre-accident, some adjustment to his net earnings for the 2007/2008 financial year might be appropriate to allow for the fact that in the event that his working life is interrupted as a consequence of this injury, the consequential loss should be measured against the earnings that he will be receiving when he commences to suffer that loss.
Using the table found at paragraph 31 of his quantum statement, it seems to me to be appropriate to assess his net earnings as having been as follows. In the 24 weeks up to the 30th of June 2009, he earned $1399 net per week. In the year ended 30th June 2010, he earned $1369 net per week. In the year ended 30th June 2011, he earned $1452 net per week. In the year ended the 30th June 2012, he earned $1791 net per week. And in the year ended the 30th June 2013, he earned $1848 net per week. If the current trends continue at the mine, then his earnings are likely to increase. The future, though, of the coal mining industry, like its past, must be approached with some caution. It seems to me to be safe to assume that if the plaintiff does suffer future economic loss, it will be suffered at a rate not less than $1750 per week during any period in which he is unemployed.
Because he is aged 42 at present, he has between 23 and 25 years of working life ahead of him. If he continued to work for that period, earning his present rate of earnings, then his future earnings would have a present value of somewhere between $1,332,962 and $1,392,837. Those figures arrived at by using the five per cent tables. It seems to me that it is unlikely that wages will go backwards, and so there is a good argument in favour of using the present earnings as the basis for the assessment of future economic loss, but I note that the adoption of that figure, instead of the $1750 that I mentioned, has only a marginal effect on the calculation once the discount tables are applied.
It is significant to note that plaintiff has acquired a new skill as a result of having been retrained by the defendant. Nevertheless, he is left in a position where it is agreed that he is not fit to return to work in his trade and is not fit to do the work that he was doing prior to injury. In addition, he has lost the opportunity to progress to work as a dragline operator in the coal mine, although I note the evidence that that loss of opportunity may not, in fact, result in any financial loss. While the whole person impairment that has been assessed might seem to be high in respect of the level of painful restriction and incapacity, of which the plaintiff complains, it is a matter that will be of significance to him if he finds himself on the open labour market seeking employment.
A man who has never worked other than at physically oriented work, who must disclose to a prospective employer that he’s been assessed as having a 25 per cent whole person impairment consequent to an injury to his neck resulting in fusion of two vertebrae, will, in my opinion, be at a very significant disadvantage when competing with other able bodied applicants. It is impossible to predict with accuracy what the future will hold for the plaintiff. However, it is in my view unlikely that he will be able to complete his present working life in his present occupation simply having regard to the many variables that affect the coal mining industry. When he does come onto the open labour market seeking employment, he will, in my view, encounter great difficulty in securing similarly remunerative employment, having regard to his history and the extent of his disability.
I was referred to a number of cases said by the defendant to support awards as low as $100,000 for future economic loss and by the defendant, $650,000. I think there is limited value in the comparison with other cases, as each case presents its own particular features for consideration. While one cannot predict what the future will bring for the plaintiff, it is clear that if he does find himself on the open labour market, he will be at a serious disadvantage there, and if he fails to obtain employment, his loss will be very large. Having regard to the plaintiff’s actual disability, his assessed disability, and the matters to which I have referred concerning the difficulties he encounters now and will encounter in the open labour market, I think an appropriate of damages for future economic loss is $500,000.
I note that that is a little less than the sum that would be calculated if one assumed a loss of 40 per cent of the plaintiff’s earning capacity, and that seems to be an appropriate level at which to assess the loss. Accordingly, I allow damages as follows. The amounts that I have not mentioned are amounts that were agreed, or at least the calculation was agreed. So, I list them as follows. General damages, $60,000; interest on general damages, $2160; past economic loss, $10,000; interest on past economic loss, $720; past loss of superannuation contributions, $900; special damages, $11,592.54c; future economic loss, $500,000; future loss of superannuation contributions, $50,000; future recurring expenses, $2500. That gives a total of $637,872.54c.
After deduction of the refund to WorkCover of $11,592.54c, there will be judgment for the plaintiff in the sum of $626,280. I’ll hear submissions as to costs.
...
HIS HONOUR: Well, I don’t imagine that there is a basis on which the defendant could resist that. But the defendant not having appeared, it’s appropriate that I make the order. So, there’ll be an order that the defendant pay the plaintiff’s costs of and incidental to the action on the standard basis from the 13th of November 2012.
______________________