Haylett v Hail Creek Coal Pty Ltd (No 2)
[2014] QSC 280
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Haylett v Hail Creek Coal Pty Ltd (No 2)[2014] QSC 280
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Haylett v Hail Creek Coal Pty Ltd (No 2)[2014] QSC 280
Haylett v Hail Creek Coal Pty Ltd (No 2)[2014] QSC 280
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 25 November 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 October 2014 |
JUDGE: | Dalton J |
ORDER: | Declare that the assessment of Dr Parker dated 30September 2014 was not in accordance with law and is of no effect under the Coal Mining Safety and Health Regulation |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – DECLARATIONS – where a medical practitioner purported to make a health assessment under the Coal Mining Safety and Health Regulation 2001 (Qld), r 46 – where inadequate information for medical practitioner to assess fitness – whether this assessment was in accordance with law Coal Mining Safety and Health Act 1999 (Qld) Coal Mining Safety and Health Regulation 2001 (Qld) |
COUNSEL: | D Kent QC for the applicant A McLean Williams for the first respondent G O'Driscoll for the second respondent |
SOLICITORS: | Hall Payne Lawyers for the applicant Sparke Helmore for the first respondent Avant Legal for the second respondent |
[1] This is an originating application for declarations which concern whether or not the applicant is fit to undertake his employment with the first respondent. The applicant began working at the Hail Creek Coal Mine on 12 January 2009. He is 43 years old, married and has three children. He was injured at work and brought a common law claim against his employer, the first respondent. The first respondent admitted liability. On 15November 2013 Baulch DCJ gave judgment, assessing quantum at $626,280. In the course of his judgment Baulch DCJ stated that the applicant had been injured as a result of driving a bulldozer for 12½ hour shifts over rough ground and large rocks. Baulch DCJ further stated that the defendant, by reason of a vibration assessment carried out in 2008, would have been aware of “significant risks [of injury] faced by bulldozer drivers” because of the rough terrain on which they operated. The applicant suffered a C6-7 disc protrusion, for which he had fusion surgery. He returned to work in October 2010. The first respondent retrained him to operate a drilling machine. Such a machine does not vibrate during operation. Judge Baulch devotes most of his judgment to matters of the applicant’s employment at the time of the trial and the assessment of future economic loss:
“His employer has since retrained him, and he now works as a member of a drill crew at the mine. …
…
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.
…
… 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 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 full time 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.
[The judge set out the applicant’s net earnings between 2009 and 2013, which showed an increase] … 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. …
Because he is aged 42 at present, he has between 23 and 25 years of working life ahead of him … [i]t 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, …
It is significant to note the 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 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.
… It is impossible to predict with any 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.
… 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 [measure] of damages for future economic loss is $500,000.” (my underlining)
[2] It can be seen that Baulch DCJ proceeded on the basis that the applicant had been retrained and had a secure position as a drill rig operator. It appears from the facts before me that was a wrong basis.
[3] The Coal Mining Safety and Health Act 1999 (Qld) purposes to protect the health and safety of persons who work at coal mines – see, for example, s 6(a) and (b) of the Act. It is to achieve these objects that the Act makes provisions for, inter alia, assessing the health of coal miners. Regulation 46 of the Coal Mining Safety and Health Regulation 2001 (Qld) provides as follows:
“46 Health Assessment
(1)The employer must ensure a health assessment is carried out for each person who is to be employed, or is employed, by the employer as a coal mine worker for a task other than a low risk task.
(2)An assessment must be carried out –
(a)before the person is employed as a coal mine worker; and
…
(c)otherwise, periodically, as decided by the nominated medical adviser, but at least once every 5 years.
(3)An assessment must be carried out –
(a)in accordance with the instructions, and covering the matters, in the approved form; and
(b)by, or under the supervision of, the nominated medical adviser. …”
[4] There is an approved form under the Regulations. Section 1 is completed by the employer. It nominates a medical adviser – the Nominated Medical Adviser. In this case Mr Haylett’s employer nominated the second respondent, Dr Parker. The employer nominates the coal worker’s position, in this case “operator”. The employer nominates whether assessment is to be for an employee’s current position or a position in which it is proposed to employ a person. In this case the employer did not strike through either one of these options, so the form it gave Dr Parker was ambiguous as to this.
[5] Section2 of the form is to be completed by the coal mine worker. It asks for medical information. It is signed by the coal mine worker and witnessed by the coal mine worker’s own doctor – the Examining Medical Officer. Section 3 is completed by the Examining Medical Officer, after examination of the coal mine worker.
[6] Section 4 of the approved form is controversial in this case. It is to be completed by the Nominated Medical Adviser. It allows the Nominated Medical Adviser to certify that the coal worker is:
●fit to undertake any position
●fit to undertake the proposed/current position
●fit to undertake the proposed/current position subject to the following restriction(s) (if necessary, outline a management program):
●not fit to undertake the proposed/current position because of the following restriction(s):
[7] The significance to being declared “not fit” is that by s 48(1) of the Act it is contemplated that if an employer is given a health assessment report about a coal mine worker showing that the worker is “unable to carry out the worker’s tasks at the mine without creating an unacceptable level of risk” the worker will have his or her employment terminated.
[8] Mr Haylett saw his examining medical officer on 14 November 2013, the day before Judge Baulch’s judgment was delivered. He then saw Dr Parker, the Nominated Medical Adviser, on 18 November 2013. The first respondent had used the word “operator” to describe the position for which Mr Haylett was to be assessed. Dr Parker completed section 4 of the approved form by ticking the last of the four options and writing in the space provided after it “unfit due to a significant and foreseeable risk of further injury or aggravation of medical condition which prevents him performing occupational demands of the role”. In response to that the applicant brought proceedings in this Court, the result of which was a judgment delivered on 7 August 2014 in which McMurdo J declared that Dr Parker’s report of 19 November 2013 was of no effect under the Coal Mining Safety and Health Regulation.[1]McMurdo J construed Dr Parker’s opinion as being in relation to the applicant’s then current position as a drill rig operator, rather than an operator of heavy equipment generally – [21]. I am not aware of the evidence McMurdo J had as to this. It was apparently different to the evidence before me.
[9] After McMurdo J’s decision Mr Haylett re-attended on Dr Parker. Once again Dr Parker had a form on which the first respondent had nominated “operator” as the position for which Mr Haylett was to be assessed. On 23 September 2014 Dr Parker ticked the third box: “is fit to undertake the proposed/current position subject to the following restriction(s) …” and added, “unfit for heavy or continuous jarring and vibration; unfit for working above shoulder height; fit for drill rig operation but unfit for heavy haul trucks or dozers”.
[10] On 30 September 2014 Dr Parker was asked by the first respondent to reconsider because he ought to have assessed Mr Haylett against the occupation of “operator” but instead had apparently assessed him against the position of “drill rig operator”. In fact this was the case. Mr Haylett and his union representative had told Dr Parker, and Dr Parker had proceeded on the basis, that Mr Haylett’s position was that of drill rig operator.
[11] Dr Parker then provided another section 4 assessment, this time ticking the last box, “is not fit to undertake the proposed/current position because of the following restriction(s):” and reproduced the three restrictions he had previously listed after the third box. He wrote a letter dated 30 September 2014, acknowledging that he had been asked by the first respondent to review the report and saying:
“I have been asked to assess him for the full and substantive role of a mobile equipment operator. I understand that this includes but is not limited to drill rigs, haul trucks, dozers, graders and water carts.
In light of this, and in spite of the fact that Mr Haylett is able to operate the drill rig, he is clearly unfit for the full inherent duties of the role of operator. I have therefore changed the section 4 report to reflect this.”
[12] Dr Parker gave evidence. I thought he did so honestly. He rejected any notion that either the applicant or the first respondent dictated to him what he ought to write in section 4 of the health assessment, and I accept that. He understood at all material times that the term operator, when used by the first respondent, meant “a position that involves operating heavy machinery and a – a variety of heavy machinery” – t1.30 – including heavy haul trucks and dozers – t 1.25.
[13] The Hail Creek Agreement 2011, which governs employment by the first respondent at the mine, shows that, “employees will be engaged and classified in operator or maintainer positions” – cl 6. There are two base salaries, one for operators and one for maintainers – see annexure 1, cl 2. The letters constituting the applicant’s written terms of employment say that he will be given “the role of Operator at Hail Creek Mine” – see p 98 of the exhibit bundle to Court Document 10. It is nowhere said what the role of operator entails, either in that letter or the letter found at p 108 of that exhibit bundle. There is a position description of an operator at p 119 of that exhibit bundle. There is no evidence that it formed part of the contract between the first respondent and the applicant. It is written in a style which uses many words but conveys almost no meaning. Despite it being five pages long, it gives no concrete description of what the role involves. It makes statements such as “the role is responsible for the safe and effective activities associated with mining whilst focussing on equipment reliability and continuous improvement”. And “responsible for operating production equipment in a safe and efficient manner and complying with standard operating procedures and work instructions to achieve the production target set by the supervisor”. It lists responsibilities, such as leading by example and assisting others. Ironically, under the heading “Technical”, it exhorts employees to “understand role requirements”.
[14] A manager from the first respondent swore that there was no position of “drill rig operator” at the Hail Creek Coal Mine. That employee also swore that “multi‑tasking is an essential requirement of an operator’s employment because it allows the mine supervisor to manage the crew in a flexible manner”. The case which I suspect the first respondent wished to make was that all persons employed under the generic title “operator” were required by the terms of their employment to operate several different pieces of machinery and equipment, and regularly rotated from one machine to another. It would have been a simple thing to say, but no witness said it. I am not prepared to understand the piece of generic prose about multi-tasking (just quoted) to mean this. No witness said that there were not operators at the mine who operated only one machine, or even that most operators operated more than one machine. No witness said there was any disadvantage to the first respondent in having Mr Haylett only operate a drilling rig for the period October 2010 – November 2013, or explained why he could not continue to operate only a drilling rig.
[15] It was clear from the first respondent’s material that not all persons employed as operators are capable of operating all the various pieces of equipment at the mine. Employees are trained and competent for some machines but not others. Prior to his accident the applicant was not competent to operate a drill rig. He was retrained and then directed to work operating a drill rig. There is no evidence that he has been directed to operate any other equipment but a drill rig since October 2010.
[16] Mr Haylett’s supervisor at the mine says that when he took over from an earlier supervisor in April 2011, he was told that Mr Haylett had a personal injuries claim and that there was a verbal instruction that “for the time being” he was only to operate drills. He was told that the previous supervisor had complied with the instruction while the personal injuries claim was “still proceeding”. The current supervisor thought the arrangement was not to be permanent. He thought that the arrangement would come to an end when the personal injuries claim came to an end. This was something he inferred; no-one expressly said it.
[17] Having regard to the unsatisfactory evidence of what the duties of an operator employed by the first respondent entailed, I conclude that the duties of an operator are to operate equipment at the mine site as directed by someone with authority on behalf of the first respondent. There is no evidence that to be an operator the employee must operate more than one piece of equipment. To the contrary, MrHaylett has been an operator for the last three years, though his duty was to operate only a drill.
[18] It was argued that the judgment of Baulch DCJ gave rise to an issue estoppel in the applicant’s favour. This was based on the statements I have underlined in the extract from Baulch DCJ’s judgment, above. I am not in a position to find any issue estoppel. I do not know what the pleadings were, or the evidence was, in the personal injuries matter. The permanent nature of MrHaylett’s job of drill rig operator may or may not have been in issue. The reasons for judgment given by Baulch DCJ do give me cause to wonder what evidence was given as to MrHaylett’s continuing employment in that case, and what submissions were made to Baulch DCJ about that. Witnesses of course have an obligation not just to tell the truth, but the whole truth. I am not in a position to investigate these matters or make findings about them.
[19] It was also argued that an impermissible direction had been given to Dr Parker by the first respondent. I find no evidence of this. It is clear that both Mr Haylett, together with his union representative, and a Human Resources Manager from the first respondent, were interested in Dr Parker’s assessment and both spoke to him about it. I think it is clear that the regulation and the form allow the employer to specify the role or position against which the worker is to be assessed for fitness and I do not think that what the first respondent did amounted to any more than that. Indeed, there is room for the view that the reason the employer had to contact Dr Parker was that the applicant and his union representative had asked Dr Parker to assess Mr Haylett against the role of drill rig operator, rather than simply operator, which the employer had specified at section 1 on the form.
[20] The third point relied upon by the applicant is that reg 46 provides that the Nominated Medical Adviser is to assess the employee “for a task” in accordance with the approved form and that this was not done. Although it is not abundantly clear from reg 46(1), it does seem from the overall context that the job of the Nominated Medical Adviser is to assess the employee’s fitness for a task or tasks, see particularly at reg 46(5)(c). It seems to me the purpose of the regulation is that the Nominated Medical Adviser assesses the employee for the task, or tasks, involved in their current or proposed employment.
[21] The form does not sit comfortably with the regulation in that it does not invite the Nominated Medical Adviser to assess fitness for a task, but fitness for a position, which it contemplates, will be a “generic job title”. Having regard to the statement of principle in Project Blue Sky v Australian Broadcasting Authority[2] as to interpreting legislation, and sets of legislation, in order to give a harmonious result where conflict appears from the language of different provisions, it seems to me that I should interpret the word task in reg 46 to include tasks and then, having regard to the instruction in the regulation to assess in accordance with the form, construe the role of the Nominated Medical Adviser as assessing fitness for the tasks involved in the position nominated by the employer.
[22] Here the position nominated by the first respondent was extremely generic: operator. That was all the information contained on the form. By itself it is wholly inadequate for a medical practitioner to assess fitness. It would be impossible to divine what tasks were required to be performed by someone occupying the position. Some substantive content had to be given to it. In this case that content was by way of information to Dr Parker as to what the role of operator entailed. On 23September 2014 Dr Parker was told that Mr Haylett was employed as a drill rig operator. On 30 September 2014 he was told that Mr Haylett was to be assessed as to his ability to operate various types of machinery, including machinery which vibrated. The fact that Dr Parker could reach two different conclusions on 23 September and on 30 September shows how his assessment in both cases was dependent, not on the instructions and matters in the approved form, to paraphrase reg 46(3), but upon matters extraneous to it. In those circumstances it does not seem to me that in either case – 23 September 2014 or 30 September 2014 – Dr Parker’s assessment was in accordance with reg 46(3). It was not carried out in accordance with the instructions and matters in the form but in accordance with advice Dr Parker otherwise received. Accordingly I grant the relief sought and declare that the assessment of Dr Parker dated 30 September 2014 was not in accordance with law and is of no effect under the Coal Mining Safety and Health Regulation.
[23] I will hear the parties as to costs.