Martin v Golding Contractors Pty Ltd
[2014] QSC 53
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- Unreported Judgment
- Martin v Golding Contractors Pty Ltd[2014] QSC 53
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Martin v Golding Contractors Pty Ltd[2014] QSC 53
Martin v Golding Contractors Pty Ltd[2014] QSC 53
SUPREME COURT OF QUEENSLAND
CITATION: | Martin v Golding Contractors Pty Ltd [2014] QSC 53 |
PARTIES: | Jodie Maree Martin (Plaintiff) v Golding Contractors Pty Ltd (ACN 009 734 794) (Defendant) |
FILE NO: | S35/11 |
DIVISION: | Trial |
PROCEEDING: | Civil |
ORIGINATING COURT: | Mackay |
DELIVERED ON: | 27 March 2014 |
DELIVERED AT: | Townsville |
HEARING DATE: | 19, 22 and 23 July 2013; last submissions 31 July 2013 |
JUDGE: | North J |
ORDER: | |
CATCHWORDS: | DAMAGES – PERSONAL INJURIES– QUANTUM – where plaintiff suffered personal injuries in workplace accident at mine – where liability admitted – assessment of damages – where assessment of general damages, past and future economic loss in issue |
LEGISLATION: | Workers’ Compensation Rehabilitation Act 2003, ss 308, 308A-308E |
CASES: | Koven v Hail Creek Coal Pty Ltd [2011] QSC 51 Phillips v M C G Group Pty Ltd [2013] QCA 83 |
COUNSEL: | G. Crow QC for the plaintiff G. O'Driscoll for the defendant |
SOLICITORS: | Taylors Solicitors for the plaintiff McCullough Robertson Lawyers for the defendant |
- The plaintiff claims damages for personal injury sustained in the course of employment with the defendant. The defendant has admitted liability for the accident and the issue for my determination is the quantum of damages recoverable. An aspect of that involves the resolution of a dispute between the plaintiff and the defendant of the nature and extent of the injuries sustained by the plaintiff.
- The accident occurred on 27 March 2009. The plaintiff was then 23 years of age (d.o.b. 17 July 1985) and was 28 years of age at the time of trial. At the time the plaintiff was employed by the defendant as a truck driver at the “Ensham Mine” (a coal mine) near Emerald in Queensland. In her statement of claim the plaintiff alleges that as a result of the accident at work she sustained[1]
“(a)an injury to her cervical spine which has been diagnosed as a C5/C6 disc prolapse causing severe cervical spine pain and headaches;
- a soft tissue injury to the thoracic spine causing thoracic spinal pain;
- a soft tissue injury to the lumbo sacral spine including a L4/5 disc prolapse causing lumbar spinal pain.”
- For reasons that will become apparent the circumstances of the accident are relevant to the resolution of the issues of what injuries the plaintiff sustained as a result of her workplace accident. Much of the plaintiff’s evidence-in-chief was given in written form being an affidavit sworn by the plaintiff and tendered into evidence through her when she gave oral evidence at the trial.[2] In the statement the plaintiff said, concerning the accident:[3]
40.At the time that I sustained my injuries, I was reversing a large mining dump truck in order to maneuver (sic) it into a position where it could be loaded by a digger. I was still moving backwards when I felt a huge impact to the rear of the truck. The force of the impact caused the whole of my back and neck to be firstly slammed into the back of the seat and then thrown forwards in the seat. Even although I had a lap sash seatbelt on, I was thrown that far forwards that my forearms were on the steering wheel stopping my torso from connecting with it. Ordinarily when driving the truck, there is a lot of room between the steering wheel and the position in which I would be seated when operating the vehicle.
41.Immediately after the accident, I was dazed. I finished work not long after this.
42.I went to bed at approximately 8.00pm, but when I woke up in the middle of the night in order to go to the toilet I was experiencing pain in my lower back. I passed blood and could not sit on the toilet. I applied ice to the back and then went back to sleep. I woke up at 4.30am in order to get ready for dayshift, but my lower back was feeling very stiff and sore. I got dressed and went to get into a vehicle with a work colleague in order to go to the mine site for work, but at this point my back was too painful and I decided to go back to my room in order to rest, as I was concerned that operating a truck would aggravate the pain".
- The plaintiff’s evidence is that her back remained painful and that later in the day she was driven to the Emerald Base Hospital for examination. She said that later that day she developed pain in her neck.
- Thereafter she received medical treatment including physiotherapy though she continued to suffer from pain in her neck and back in April and into May. In about late May she noticed that the symptoms seemed to be reducing so she returned to the mine site to participate in a return to work programme on suitable duties on 16 June. Of that return to work attempt the plaintiff, in her statement, said:[4]
“54.On 17 June 2009, I was required to operate a truck. When operating the truck I experienced pain in both my neck and lower back. After finishing, I advised management that I was experiencing pain and the following day they had another feller travel with me in the truck to observe me operating it. Once again operating the truck brought on the pain. While I was in the truck, a digger operator rough loaded my truck and I was shaken around in the truck and suffered increased pain. Prior to 27 March 2009 I had been rough loaded many times and it had never caused me any major problem.
- During the course of the next few days, I continued to operate trucks for limited hours each day, but the pain in my neck and lower back was getting progressively worse and by the 22th (sic) of June 2009, I couldn’t cope with it any further".
- In her statement the plaintiff said that she continued to suffer from low back and neck pain and she described the symptoms that she has suffered since the accident after her attempted return to work and the effects the injuries and pain have had upon her:[5]
- I continued to suffer pain in both my neck and my lower back. There is always a level of discomfort in my neck, but the level of that pain varies considerably depending upon what sort of activity that I have been involved in. The pain in my lower back is intermittent and the level of pain I experience there also varies depending upon the type of activity that I have been involved in. I rarely suffer any pain or discomfort in the middle of my back, although at times the pain in my neck does spread down from the base of the neck over the shoulders and between the top of the shoulder blades.
- I experience the greatest problem with my neck. I never get a full nights sleep. I wake at least four (4) times each night. At times when it is at its worst sleep is simply not possible and it overwhelms me. The level of pain that I experience in my neck when it is at its best would be about 2-3 out of 10, 10 being the absolute worst.
- The neck pain is aggravated by standing and sitting in the one position for any longer than about 15 to 20 minutes. When I have to do activities that require me to sit or stand for lengthy periods of time, I have to move around and stretch in order to try and reduce the pain and stiffness that comes on. If I am forced to maintain that sort of posture, particularly when I have to keep my head in a fixed position, such as when driving or sitting at a computer terminal for a couple of hours or so, or when travelling home to my parents cattle property, the pain increases significantly to a level that I would describe as being right up to the maximum level. When travelling lengthy distances, even as a passenger, I try to have regular breaks normally for about five or ten minutes every hour or so. I walk around and stretch my neck and back in order to obtain some relief.
- When I travel out to my parents property I normally go from Townsville to the township of Croydon where my parents have a town house. I do not usually go the full distance because it is too far in one trip. The distance between Townsville and Croydon is approximately 621 km and with the breaks that I need to take, it usually requires about nine hours. I am used to driving on country roads and the road between Townsville and Croydon is probably fairly average for a sealed country road, but just the same, depending upon the season, it has numerous potholes and bumps, which if they are hit cause aggravation of my pain.
- If I turn my head from side to side too quickly, it aggravates the neck pain. There is a general feeling of stiffness in my neck most of the time, but especially when the pain has been aggravated, when I first get up in the morning until the neck muscles warm up and also after for example I have been sitting whilst driving or at a computer for a lengthy period of time.
- When the pain in my neck is aggravated, for example when having to sit in one position for an extended period of time assisting students at school with their work, I would describe the pain as reaching about 9 out of 10 in order of severity and I experience a burning pain spreading down from the base of the neck out over the top of both shoulders and down to about the top of my shoulder blades.
- On 15 February 2011 I was employed in Townsville with Pacific Coast Engineering as an Estimator, the pain in my neck would often get so bad that it would bring me to a point where I would initially feel nauseous, and on some occasions I would become physically ill.
- When the pain in my neck is at its worst I also feel lightheaded and ill throughout my entire body. When I feel that my entire body is ill as a result of pain I can alleviate the pain to some extent by having a hot shower, or lying down or using a TENS machine.
- I also take Panadeine Forte when the pain is severe in my neck and across my shoulders. On those occasions I take up to eight tablets a day.
- I also experience pain in my lower back. The area which gives me most grief in terms of pain, is approximately 5cm above my tail bone. When the pain is severe it extends out on both sides down towards my hips.
- When the pain in my lower back is at its worst, the pain radiates down from my lower back through my bottom and down the back of my right leg. There has been a couple of occasions since injuring my back I have also had pain down my left leg to about the level of the knee. I have not however found that problem overly troublesome and it has only lasted for a short period until I have been able to change my posture.
- Bending and twisting, especially if I have to do it quickly and lifting moderate to heavy weights can cause the onset of the lower back pain. As part of my duties as a Tupperware manager I have to move boxes of Tupperware fairly regularly. However, the boxes are quite light, no more than about 5kg in weight and although the size of these boxes vary and at times can be reasonably large, I am still able to cope with moving them most of the time. If my lower back pain has been aggravated by other activities I try to avoid having to move the boxes and rely upon my partner to do so.
- I do most of the shopping for the household myself, although pushing a trolley full of groceries tends to aggravate my neck pain and also at times causes the onset of lower back pain, but I want to remain as active and independent as I can. When the pain is playing up too much, I get my partner to do it if he is available.
- I continue to do some of the domestic chores, although my partner does help out alot. I have adapted different ways of doing these chores in order to limit any aggravation of the pain. When for example the all in one bath and shower has to be cleaned I spray the cleaning product into the bath and then use my foot to do the scrubbing. I find this works reasonably well and does not aggravate the pain in my neck and does not cause pain in the lower back.
- I find vacuuming fairly difficult and if I am vacuuming I normally limit how much I do at one time. Often only a room at a time. Mopping is quite difficult and causes pain in both my lower back and also in my neck. I did purchase a lighter mop which was made of aluminium and you do not need a bucket for it. It cost about $200.00. However it still caused much the same pain, because the body still has to go through the same posture and motions as with a normal mop. Most of the time my partner does this chore.
- I rent our residence from my parents. It has a yard and we have to maintain it. I have in the past attempted to do the lawn mowing with a push mower, but I found that it very quickly aggravated the neck pain and caused considerable lower back pain and I had to cease. I was paying for a contractor to do the lawn mowing, but I could not really afford to continue paying for it to be done and I now rely upon my partner and my parents when they are down in Townsville.
- I find that the pain and stiffness both in my neck and lower back is very bad when I first get up in the morning, but I do get quite a lot of relief in both areas from having a hot shower".
- The plaintiff’s oral evidence concerning her pre-accident employment and training was consistent with the content of her statement.[6] By the time of the accident she had obtained employment with the defendant as a heavy vehicle operator at the mine and had obtained an impressive resume of trade and other machinery and equipment training or competency certifications. She gave evidence that she wanted to obtain work in the mines notwithstanding that she had obtained trade qualifications as a fitter and turner.[7] Members of her family had worked in the mining industry including her father who had been a mine manager.[8] The plaintiff’s evidence was that each of the crews working at the Ensham Mine had a number of women working as truck drivers.[9]
- When giving evidence the plaintiff impressed me. I was also impressed by her employment history, the extent of her training including trade qualifications and vehicle and machinery competency. The plaintiff gave evidence that she enjoyed a challenge and I formed the view that she was not only ambitious but, in particular, she was also enthusiastic to meet the challenges facing a young woman operating heavy machinery working in the mining industry. When describing the accident the plaintiff said[10]:
“The level of force, so I was flung back - I was pushed back to my seat and flung forward onto my steering wheel. My hands came in contact with my steering wheel. I’ve never had an accident like this, but, to me, it was high impact whiplash".
- The plaintiff described low back pain that could vary in intensity daily, that on some days it might only present as stiffness. She described neck pain that varied daily, that she suffered headaches up to five times a week with disturbed sleep during the nights.
- The plaintiff gave evidence that she had sought to find alternative employment as a teacher’s aid. She worked approximately 13 hours a week, working different hours on Mondays, Tuesdays and Wednesdays. She said that she planned to attempt to train and to obtain employment to work full time as a teacher but she had reservations about her capacity to work full time.
- The plaintiff was questioned in cross-examination about her capacity to do administrative duties or office work. She had attempted that though she had experienced problems doing computer work for extended periods finding that she had to stand and stretch. The plaintiff has obtained a certificate in business studies and had achieved some success managing a Tupperware business that required her to drive to sales meetings or presentations. In cross-examination she was pressed to offer reasons why she had moved from one job and employer to another from time to time in the years before the accident. I accept her explanation that the reasons for these moves included her interest in obtaining job experiences and qualifications and looking for further challenges.
- I have already said that the plaintiff impressed me when giving evidence which was given in a seemingly frank way without any obvious suggestion of exaggeration. I regard the plaintiff as a reliable witness and consequently I accept her evidence of her pain and suffering consequent upon the accident and subsequently.[11] In particular I accept the plaintiff’s evidence that she had recovered from any earlier injuries and at the time of the accident she was fit and not suffering from any symptoms of back or musculo skeletal pain. Upon the important matter of the plaintiff’s intention with respect to employment at the time of the accident I accept that she planned long term employment within the mining industry should it be available. By the time of trial the plaintiff was in a relationship but it is significant that as a result of unrelated medical complications it would seem that the plaintiff is unable to conceive.[12]
- A deal of evidence was given by witnesses called at the trial concerning the plaintiff’s competency both in her trade and as a truck driver and machine operator, the prospects of whether the plaintiff might have been able to obtain secure fulltime employment in her trade or as a truck driver or machine operator in the mining industry, and related to that latter issue, the availability of employment in the mining industry.
- A statement from Mr Steve Pierce was tendered into evidence without objection or challenge.[13] Mr Pierce was at the time he made the statement the district vice president of the Construction, Forestry, Mining and Energy Union, a position he had held since 2000. In his statement Mr Pierce said that his primary duties consisted of negotiating enterprise agreements and representing union members in disciplinary matters and in workplace disputes. Prior to 2000 Mr Pierce had worked for many years in the coal mining industry as an auto electrician. In his statement Mr Pierce said[14]:
- Since 2009 I have been involved in the negotiation of a number of enterprise agreements in the BowenCoalBasin, including the following:
- Newlands Coal Surface Operations Enterprise Agreement 2010;
- Thiess Collinsville Coal Mine Enterprise Agreement 2010;
- BMA Enterprise Agreement 2012;
- South Walker Creek Mine Enterprise Agreement 2010;
- Downer EDI Mining Millennium Mine Enterprise Agreement 2012;
- Leightons Moorevale Olive Down Codrilla Enterprise Agreement 2012;
- MCMM Coppabella Enterprise Agreement 2010;
- Leighton Middlemount Enterprise Agreement 2009;
- Hail Creek Agreement 2011;
- Thiess Burton Coal Agreement 2009;
- BMA Daunia Mine Enterprise Agreement 2010; and
- BMA Caval Ridge Mine Enterprise Agreement 2011;
- Thiess Burton Coal Agreement 2012.
- My role in the negotiations for the BMA Enterprise Agreement 2012, was as an SBU participant.
- In my role with the union, I have a detailed knowledge of the income earned by coal mine workers and their conditions of employment.
- The number of wages employees in the coal mining industry in Queensland varies, because of the variable need for labour hire, but I would estimate that at present including labour hire employees there would be approximately 10,000 to 15,000 full-time wages employees in the industry.
- At present there are just under 9,000 financial members of the mining division of the CFMEU in Queensland.
- The coal industry in Queensland expanded rapidly from about 2004 through until plateauing towards the end of last year.
- Late in the first quarter of this year, due to the strength of the Australian dollar and the softening in metaliferious coal prices, many employers in the coal mining industry Queensland undertook a review of their business operations and there has been a rationalization of the workforce and a downturn in the industry.
- At the end of last year I would estimate that the union had approximately 9,500 to 9,800 financial members, whereas in this point in time I would estimate that the union has between 9,000 and about 9,200 members.
- There would have been a drop in membership of approximately of about 5%.”
Of the plaintiff’s prospects of employment Mr Pierce said:
“EMPLOYMENT PROSPECTS
19.I am aware of Ms Jodie Martin’s prior work experience and qualifications.
20.I am aware that Golding’s contract at Ensham Mine ended in early 2010. In early 2010 the coal mining boom in Queensland was at its peak and coal mining companies were desperate for anyone that had any prior experience to work for them.
21.Coal Mine Operators were picking up ‘anyone’ with any sort of mechanical skills, to address the shortage of Fitters.
22.As Ms Martin had trade qualifications she would have had no problem in obtaining employment in the coal mining industry with one of the coal mine operators such as BHP or Rio Tinto or otherwise with one of the whole of mine operators such as Thiess Pty Ltd or Leighton Contractors Pty Ltd".
- As part of the documentary evidence tendered without objection as a consequence of the evidence of Mr Pierce a number of enterprise agreements were tendered[15] and based upon those exhibits and Mr Pierce’s knowledge and experience, including his familiarity with the plaintiff’s experience and qualifications, he said[16]:
“EMPLOYMENT CONDITIONS
23.If Ms Martin had obtained a job with one of the coal mine operators such as Rio Tinto or BHP during the period since early 2010, she could have expected to have earned either as a plant operator or in her trade a gross income of anywhere between approximately $100,000 and $160,000 gross per annum depending upon the shifts worked, their classification and skills held.
24.If she had obtained employment with one of the whole of mine operators such as Thiess Pty Ltd at Burton Downs Coal Mine or Lake Vermont Coal Mine or with Leightons at Moorvale or Sonoma, she could have expected a gross income of between $100,000.00 and $160,000.00 gross per annum also.
25.Many of the whole of mine contractors and second tier contractors such as NRW at Middlemount, and HSE Mining at Saraji provide their workers with free accommodation and, meals, laundry facilities and power. The provision of meals and power are a very real benefit to workers and they are nearly always included as part of the negotiations of an enterprise agreement. That has been the case for as long as I have been a union official.
26.In nearly all cases, coal mine operators like BHP, Rio Tinto and Xstrata also provide either free or heavily discounted accommodation, meal and power for workers whilst they are on roster. Once again these deliver very real benefits to workers".
- In the plaintiff’s case a number of witnesses were called. Mr Arthur Bailey[17] is an uncle of the plaintiff with 15 years experience working as a plant operator in mines. When he was employed as a coordinator at a mine, “Burton Downs”, his duties included that of head trainer of a number of crews. He recommended his daughter Melissa as an employee and subsequently she obtained employment at Burton Downs. Mr Bailey gave evidence that he is now employed as a truck driver at Hail Creek where he is paid approximately $162,000 per annum gross and in addition receives accommodation and food provided when he is working on site. His evidence at trial was that the Hail Creek mine was expanding and that plant operators were being employed. Melissa Bailey, a cousin of the plaintiff, gave evidence.[18] She is employed as a truck driver at Burton Downs and has been since September 2010. Previously she had been employed as a beauty therapist. Her evidence was that at the time she obtained employment her father was a trainer and assessor of new drivers but that other women started employment at Burton Downs with her. Mr Peter Turnham gave evidence.[19] He has 17 years’ experience working in the mining industry and worked with the plaintiff when employed for the defendant. Mr Turnham had a high opinion of the plaintiff as a plant operator. His evidence was at the time of trial he was employed by Rio Tinto at “Claremont Coal”. At the time of trial Mr Turnham was paid approximately $122,290 gross per annum plus superannuation benefits and accommodation and meals when working. His evidence was that a number of plant operators or truck drivers who had been employed by the defendant at the Ensham Mine obtained employment at Claremont Coal when he did. Mr Craig Delaney gave evidence that he was a company director and mining manager.[20] He knows the plaintiff and his evidence was that he would have offered her a job in 2010 if she had sought employment as a fitter. In 2010 fitters employed by him were paid $106,000 per annum gross plus superannuation benefits. Currently fitters are paid at approximately $116,000 gross per annum plus superannuation benefits at 9.25% together with meal allowances at $57.50 per day. Mr Lance Drummond had been employed by Queensland Rail since 1986.[21] He worked with the plaintiff as a “wagon master” when she worked for Queensland Rail. He earned approximately $104,000 per year. Mr Drummond recalled the plaintiff as a good worker and said that it was possible for a fitter and turner to qualify as a wagon master within as short a period as one year. Mr Ian Hayman gave evidence.[22] He operates a trucking business which includes road trains. His evidence was that he knew the plaintiff and knew of her abilities as a truck driver. He has employed women before and said that he would be prepared, if there was a position available, to offer the plaintiff work. Currently truck drivers employed by him are paid between $90,000 and $94,000 gross per year.
- In the defendant’s case a number of witnesses were called. The evidence focussed upon a performance review[23] dated 31 August 2008 authored by a Mr Oliver Clews and reviewed by Mr Tom McIver. This document was referred to in the context that in early 2010 the defendant’s contract to provide truck crews and perform work at the Ensham Mine terminated and a number of employees ceased to be employed by the defendant. Mr Dylan Pieters gave evidence that he was the principle mining engineer for the defendant.[24] The work done by the defendant at the Ensham Mine was the removal of overburden dirt and rock preparatory to the open cut mining operations of the coal performed by others. In evidence Mr Pieters identified the performance review, exhibit 42, and gave evidence that in about 2012 the defendant had put a number of mining staff off because a number of contracts at mines had come to an end[25] but he acknowledged that at the same time there had been a growth in civil engineering contracting works requiring the defendant to employ truck drivers.[26] Mr Mark Cuthbertson was the manager of human resources with the defendant.[27] His evidence was that the plaintiff was not considered for an offer of employment elsewhere by the defendant in early 2010 because at the time she was still unfit for work because of her injuries. His evidence was that out of a possible 84 employees more than 12 persons were not transferred to other projects the defendant had when the Ensham Mine contract came to an end.[28] Mr Oliver Clews gave evidence that he was the shift supervisor of the plaintiff in 2008 and 2009 and that he was one of the signatories to the operator performance review (exhibit 43).[29] Mr Clews’ evidence was that his comments concerning the plaintiff arose out of an apparent personality clash she had with others.
- I was impressed by the witnesses called in the plaintiff’s case upon the issues of employability and industry conditions. That being said, Mr Pieters, Mr Cuthbertson and Mr Clews gave what appeared to be essentially reliable evidence. My evaluation of the evidence given by Mr Pieters and Mr Cuthbertson is that it is possible, if the plaintiff had not been injured, she may not have been offered alternative employment with the defendant in early 2010 had she been working for the defendant and fit. Nevertheless the circumstance of the relative buoyancy of the labour market in the mining industry that Mr Pierce’s evidence pointed to and the other industry conditions such as civil engineering that Mr Pieters spoke of makes it probable, in my view, that if fit in early 2010 the plaintiff would have had the offer of employment with the defendant at another project.[30] Even if my assessment of the evidence is overly generous to the plaintiff the witnesses called in the plaintiff’s case persuade me to a high degree of satisfaction that in early 2010 the plaintiff had excellent prospects of obtaining highly remunerative employment in the mining industry if she had been fit to work as a truck driver or plant operator. The evidence of Mr Bailey and Mr Turnham and the example of Ms Bailey’s employment together with the unchallenged evidence from Mr Pierce persuades me of that view. The evidence from Mr Delaney, Mr Hayman and Mr Drummond confirms the view I formed independently of the plaintiff as an able and willing worker, one who is likely to impress employers and obtain employment in any of the industries they had experience in.
- While evidence did suggest that by 2012 and 2013 the mining industry in central Queensland was not as buoyant as it had been in 2009 and 2010[31] the evidence from Mr Pierce and of the other witnesses is that work is available for experienced competent persons, that it is highly remunerative and that there remain many opportunities offering continuity of employment.
- Expert medical evidence concerning the plaintiff’s injuries came from Dr John Maguire (orthopaedic surgeon) on behalf of the plaintiff[32] and in the defendant’s case from Dr Richard Gibberd (orthopaedic physician)[33]. Evidence was also led from Dr Roger Watson[34] but at trial the parties principally relied upon the evidence from the specialists in orthopaedics, and for the reasons that follow I prefer the evidence of Dr Maguire to that of Dr Gibberd.
- The opinions stated by Dr Gibberd in his reports of May and September 2009[35] were obtained before the MRIs of the plaintiff’s cervical and lumbar spine were performed in April 2010 and October 2010 respectively.[36] When Dr Gibberd gave evidence at trial he had not viewed the film of these investigations[37] yet he ventured to offer a semantic interpretation or commentary upon the description of others, that is, between the description of the plaintiff’s anatomy in the words used by the radiologist contrasted with the opinion of Dr Maguire and the words he used in his descriptive interpretation of the film.[38] Thereafter when cross-examined the doctor gave his evidence in a combative manner[39] not unlike the partisan of an idea or an advocate might, not in the manner that one would expect from an independent expert witness.[40] Throughout he adhered to his opinions of the nature and extent of the injuries sustained by the plaintiff, including that her history and presentation on examination was inconsistent with organic pathology, [41] without having the benefit of all of the available investigative MRI evidence.
- In contrast I was impressed by the evidence given by Dr Maguire. He had the advantage of seeing the plaintiff on a number of occasions[42] both as a treating physician and for the purposes of preparing an expert report. He also had the advantage of viewing the MRI film of both the cervical and lumbar spine:[43]
- I accept the evidence of Dr Maguire that one explanation for differences to be noted concerning the science and symptoms by doctors performing examinations on different occasions may be the variable nature of pain,[44] that the plaintiff’s signs and symptoms on examination were consistent with the pathology seen in the MRI scans and that it was feasible that the mechanism of injury in the accident described by the plaintiff could cause the injuries he noted.[45] I accept Dr Maguire’s opinion that the combined effect of the cervical and lumbar spine injuries was a 13% whole person impairment, that her prognosis is poor, that it is unlikely that she will return to manual work either in her trade as a fitter and turner or in the mines.[46]
- The plaintiff at a young age has sustained serious back injuries that cause her daily pain and discomfort, more significantly in the cervical spine. The life tables suggest life expectancy of a further 60 years. Before the accident she had before her the prospect of an active and rewarding life. As compensation for pain and suffering and loss of amenities of life I assess the sum of $90,000. In addition the plaintiff is entitled to interest on past pain and suffering calculated at 2% per annum. It is five years since the injury and I assess interest on past pain and suffering at $3,000.[47]
- Concerning the matter of economic loss from injury to judgment the plaintiff’s counsel in submissions placed before me a number of scenarios that contained a calculation of possible past economic loss. Scenario 1 assumed the plaintiff would have worked and remained with the defendant at the Ensham Mine until January 2010 and thereafter until trial employed by Thiess Pty Ltd at the Burton Downs Mine where Mr Bailey and Ms Bailey worked. After making an allowance for the income earned by the plaintiff in her post accident employment, including the Department of Education and her endeavours with her Tupperware sales business, her past economic loss up until trial was calculated at some $346,231.46. On that scenario the plaintiff’s current net weekly income at the time of trial would have been $1,932. Scenario 2 assumed the plaintiff would have worked full time with the defendant up until 4 January 2010 in the enterprise conducted by Mr Delaney. Upon that scenario past economic loss to trial would have been $301,000 after making due allowance for income earned. At the time of trial the notional net income per week would have been $1,603. Upon scenario 3 the plaintiff would have continued to have been employed with the defendant until 4 January 2010 and thereafter employed by Queensland Rail as a wagon master in accordance with the evidence given by Mr Drummond. On that scenario the plaintiff’s net past economic loss after allowance for earnings would have been $294,627 and the notional net weekly income at the time of trial would have been $1,461. Under scenario 4, the plaintiff would have worked in Mr Hayman’s business from 5 January 2010 until trial after finishing with the defendant at the Ensham Mine on 4 January 2010. Under that scenario the plaintiff’s past economic loss would have been $272,923 at a net weekly income of $1,343 at the time of trial. Under scenario 5, the plaintiff would have worked with the defendant at the Ensham Mine until 4 January 2010 and thereafter with the defendant at the Curragh Open Cut Coal Mine until trial. Under that scenario after making allowance for income the past economic loss to trial would have been $296,748.
- The assessment of past economic loss is not capable of precise calculation because of the possibility the plaintiff would have ceased to have been employed with the defendant in January 2010. My assessment of the evidence and of the plaintiff is that she would have enjoyed, in effect, full time employment in one of the enterprises the witnesses spoke of subsequently and until trial. Nevertheless the vicissitudes of life dictate that there is some chance there might have been a short interruption in employment. It is now 5 years since the accident. In view of the plaintiff’s capacity for work and the evidence from her and the witnesses that I have accepted (including the documentary evidence of the earnings available in the industries for which the plaintiff was equipped) I assess past economic loss at $330,000. In addition the plaintiff is entitled to past superannuation benefits lost[48] which I assess at $29,700. The plaintiff is entitled to interest on past economic loss, after making allowance for the receipt of net weekly compensation and Centrelink benefits[49], I assess interest at $67,485.[50]
- In addresses and the subsequent written submissions one matter that was common ground was that the plaintiff was to be compensated for her loss of earning capacity, not for her loss of earnings, and that the assessment of the loss of earning capacity into the future was not a matter of precise calculation because it involved a double exercise in “prophesying not only what the future holds for the injured plaintiff but also what the future would have held for [her] if [she] had not been injured”.
- For the plaintiff it was submitted that the approach to the assessment would involve the average of the possible net weekly incomes suggested by the evidence relevant to the scenarios I mentioned earlier in connection with the assessment of past economic loss. It was submitted that that average should be adopted and that after making allowance for the possibility of earnings in the short term while the plaintiff studied to become a teacher the compensation. For the period in the future after the plaintiff might notionally qualify as a teacher it was submitted the assessment should have regard to the average less or notional $500 net per week income thus allowing for the chance the plaintiff might qualify as and work as a teacher for a period of between 30 and 26 years (delayed by 4 years) and that this calculation should be discounted by a further 15% for contingencies. The submission therefore suggested an assessment at between $905,000 and $948,000. On behalf of the defendant it was submitted that the approach to the assessment of future economic loss should proceed upon a lesser average of possible earning into the future and also should proceed upon the footing that the plaintiff would qualify as a teacher and that as she gained experience and seniority over a period of 10 years working fulltime she would ultimately earn approximately $1,244 net per week. Adopting this approach the defendant’s submission was that the assessment should be between $200,000 and $250,000 for loss of earning capacity.
- Evidence which I accept is that it is common for women to work in jobs such as truck drivers or plant operators.[51] The evidence does not suggest that it is uncommon for women to work in such positions in middle age. The circumstance that the plaintiff is in a relationship and that her partner is a truck driver might suggest the chance that employment in the mines might be interrupted because of the effect of disruption to a relationship caused by the fly in fly out work arrangements. However the circumstance that the plaintiff is unable to have children suggests that a discounting contingency for the possibility that the plaintiff’s working career might be interrupted because of family responsibilities is highly remote.
- The plaintiff’s evidence was that the pain she suffered made it difficult for her to work as a teacher’s aide for a full working day. The evidence that I accept is that her pain and suffering will make it difficult for her, should she qualify as a teacher, to work fulltime. Further although I was impressed by the plaintiff as a woman who would attempt to fully apply herself to whatever endeavour she might undertake, the study for the qualifications as a teacher and the work as a teacher is quite unlike any of the vocations that she has previously attempted. Therefore while I am persuaded that there are reasonable prospects that the plaintiff will qualify as a teacher I do not regard the prospect of her qualification and then being able to work fulltime as a teacher as a probability. The combined features of her injuries, pain and suffering but also her vocational preferences and strengths suggest otherwise.
- Therefore in assessing the compensation for the loss of earning capacity into the future I note that a notional loss of $1,500 net per week for four years (the time it might take for the plaintiff to qualify as a teacher) discounted appropriately[52] gives a calculation of $284,400. After the elapse of this 4 years the plaintiff will be 32. Therefore her future working life to age 67 would be a further 35 years. The multiplier on the 5% tables for a period of 35 years (delayed four years) is 720.3. A net loss of earnings at $900 per week for this period of 35 years is $648,270. The total of both calculations is therefore $932,620. While the notional figure of $900 net per week as the loss for the future period of 35 years to age 67 makes some allowance for the prospect that the plaintiff might earn an income as a teacher or in some other endeavour it does not make a full allowance for the vicissitudes of life. The plaintiff might not, even if uninjured, have worked through to age 67. The prospects of working fulltime in the mining industry for so many years might put a strain on relationships and also might well prove unattractive in later middle age and perhaps earlier.[53] These and other potential life event factors dictate, I consider the need for a significant discount for contingencies. In the circumstances I regard an appropriate discount for contingencies to be 25%. Accordingly I assess the loss of future earning capacity at $700,000.
- The plaintiff is entitled to be compensated for the loss of compulsory superannuation contributions. Under statute the percentage contribution required by employers is rising. I assess this loss at $77,000.[54]
- The plaintiff claims for the costs of past and future education expenses associated with her re-training as a teacher. The costs of retraining brought on as a consequence of an inability by reason of injury to continue in a former occupation may be recovered as part of the expense associated with the mitigation of damages.[55] Notwithstanding the misgivings I have as to the plaintiff’s future as a teacher it was not suggested that her attempt to retrain and seek employment in this vocation was unreasonable. The costs of the retraining are $971 for the past and $29,526 for the future.[56] Amounts claimed are reasonable.
- Subsequent to the accident the plaintiff received care and assistance for which she paid in the sum of $920.[57] The plaintiff claims the future costs of care or assistance for which she might have to pay. I consider that a relatively modest assessment for future care is warranted. In part this is suggested by the modest expenses paid by the plaintiff since her injury notwithstanding her significant injuries. The plaintiff impressed me as a reasonably stoical person and her evidence suggests that she has taken steps to adjust her activities to manage most activities of day to day domestic life notwithstanding her disability. At the rate of expenditure indicated by the past a future assessment calculated on the 5% tables for the plaintiff’s life expectancy gives a figure of $4,210. I consider this would not adequately reflect the plaintiff’s need for paid care and assistance into the future when considering the extent of her injury and consequent disability and the circumstance of aging. Nevertheless a relatively modest allowance of $7,500 accords with the evidence.
- The plaintiff is entitled to recover Fox v Wood tax remissions made by WorkCover and by Centrelink in the amounts of $14,862 and $832 respectively. The plaintiff has a liability for special damages paid for by WorkCover in the amount of $6,122. In addition the plaintiff has incurred other special damages (some of which have been met by statutory authorities) totalling $12,620.93.[58] In addition the plaintiff is entitled to interest on special damages that she has paid for. Calculated at 5% for the 5 years since injury upon the out-of-pocket component interest is assessed at $540. The plaintiff will incur expenses into the future in relation to her injury[59] based upon expenditure prior to trial the average per week of that approximates $23.60. The present value of that loss for her life then discounted for approximately 15% suggests assessment at $20,000. I consider this to be reasonable.
- The plaintiff makes a claim for loss of meal, accommodation and other expense allowances met by employers of workers working at mine sites. The evidence before me suggested that the value of these allowances or the amount attributed to them might be as high as $250 per week. The evidence suggests the allowances were variable, depending upon the employer. In submissions the plaintiff contended that the value for past and future allowances should be calculated at a loss of $100 per week with future allowances discounted for contingencies by 15%.[60] Again I consider that some discounting is necessary for vicissitudes and also for the circumstance that the value of the allowances are variable and further that the plaintiff may not have always worked at remote mining sites. For past loss of benefits I assess a sum of $20,000 and in respect of the value of the future loss of benefits I assess that $50,000. The plaintiff is entitled to recover interest on the lost work benefits since injury[61] which I assess at $5,000.
- In summary therefore damages would be assessed as follows:
General damages for pain and suffering and loss of amenities of life | $90,000.00 |
Interest on past pain and suffering | $3,000.00 |
Past economic loss | $330,000.00 |
Interest | $67,485.00 |
Past superannuation | $29,700.00 |
Future economic loss | $700,000.00 |
Future superannuation | $77,000.00 |
Education expenses – past | $971.00 |
Education expenses – future | $29,526.00 |
Past paid care and assistance | $920.00 |
Future paid care and assistance | $7,500.00 |
Fox v Wood –WorkCover | $14,862.00 |
Fox v Wood - Centrelink | $832.00 |
WorkCover special damages | $6,122.00 |
Special damages | $12,620.93 |
Interest | $540.00 |
Future medical expenses | $20,000.00 |
Loss of value of on site work benefits (past) | $20,000.00 |
Interest | $5,000.00 |
Loss of value of future work benefits | $50,000.00 |
Subtotal | $1,466078.93 |
Less WorkCover refund | $50,984.84 |
Total | $1,415,094.09 |
- Accordingly subject to any submission with respect to arithmetical error there should be judgment for the plaintiff against the defendant for $1,415,094.09.
- Before pronouncing judgment and making any orders I will give the parties the opportunity to check the arithmetic and make submissions upon costs.
Footnotes
[1] Amended statement of claim filed 17 May 2011; para 6.
[2] Exhibit 1.
[3] Exhibit 1, paras 40, 41 and 42.
[4] Exhibit 1, paras 54 and 55.
[5] Exhibit 1, paras 58 to 74.
[6] See exhibit 1, para 21-39 and T 1-20 l 19 – T 1-26 l 25.
[7] T 1-23 l 15.
[8] T 1-23 l 20.
[9] T 1-25 l 41-48.
[10] T 1-27 l 29-33.
[11] These and the following findings concerning the plaintiff should be understood together with the findings recorded below upon the expert medical evidence.
[12] This has some ramifications in the considerations concerning loss of future earning capacity to which I will discuss subsequently.
[13] Exhibit 45.
[14] Exhibit 45.
[15] Exhibits 46 to 50 inclusive.
[16] Exhibit 45.
[17] T 2-35 ff.
[18] T 1-81 l 1 ff.
[19] T 2-16 l 36 ff.
[20] T 2-8 ff.
[21] T 2-22 l 12 ff.
[22] T 2-43 ff.
[23] Exhibit 42.
[24] T 2-49 l 20 ff.
[25] T 2-58 – 59.
[26] T 2-61.
[27] T 3-2 ff.
[28] See T 3-3 l 20 and T 3-5 l 7.
[29] T 3-9 ff.
[30] Consider for example the evidence from Mr Pieters at T 2-66 & 67.
[31] I have not overlooked Mr Pieter’s evidence at T2-58 of the reduction in employees, working for the defendant; but see also Exhibits 53 and 54 upon this.
[32] See the reports, exhibits 12 and 13 dated 15 September 2011 and 13 January 2012 respectively and his evidence at T 1-59 l 1 ff.
[33] See his reports, exhibits 55 and 56 dated 18 May 2009 and 8 September 2009 respectively; exhibit 57 being a diary note of a conference between Dr Gibberd and the solicitor for the defendant; and his evidence at T 3-15 l 45 ff.
[34] Who is described as a consultant in rehabilitation medicine; see further his reports or correspondence at exhibits 18, 19, 20, 21 and 22.
[35] Exhibits 55 and 56.
[36] Exhibits 29 and 30 are the reports of the MRI investigations.
[37] See for example at T 3-17 l 45.
[38] See T 3-18 l 25 in context.
[39] T 3-19 l 9 – T 3-22 l 18.
[40] Though to be fair to the doctor, he may have been reacting to some of the questions asked that may have been framed containing or implying questionable premises.
[41] See T 3-23 l 20 as an example.
[42] T 1-61 l 23 and l 34.
[43] See exhibits 12 and 13.
[44] T 1-63 l 8; cf Dr Maguire’s evidence that on none of the occasions he saw the plaintiff did he detect any indication of exaggeration or over-presentation.
[45] T 1-64 l 10; T 1-71 l 19 – 1-72 l 34.
[46] See exhibits 12 and 13.
[47] Being 2% per annum for five years on one third of the damages assessment, $30,000.
[48] Calculated at 9%.
[49] $30,010 and $30,050 respectively.
[50] At 5% for 5 years.
[51] See for example para [7] and Ms Bailey’s evidence at [16].
[52] 5%.
[53] Consider Koven v Hail Creek Coal Pty Ltd [2011] QSC 51 at [44] and [48] and Phillips v M CG Group Pty Ltd [2013] QCA 83 at [68].
[54] Calculated at 11%.
[55] See for example Lundz, “Assessment of Damages for Personal Injury and Death”, 4th ed, para 1.10.8 (providing the increased or future income resulting from the retraining is set-off against damages.)
[56] See exhibit 63.
[57] See exhibit 62; see further ss 308, 308A-308E Workers’ Compensation Rehabilitation Act 2003 and Foster & Anor v Cameron [2011] QCA 48.
[58] See exhibit 60.
[59] See generally T 1-36 – 37.
[60] The figure of $100 per week was, I infer, adopted to take account of the circumstance that workers receive the benefit of these allowances only for the days that they are on site.
[61] Calculated at 5% for 5 years.