Judgment (80 paragraphs)

[1]

Henderson v. Dalrymple Bay Coal Terminal [2005] QSC 124 (13 May 2005)

[2]

Henderson v Dalrymple Bay Coal Terminal [2005] QSC 124

[3]

Judgment for the plaintiff against the defendant in the sum of $139,814.17.

[4]

NEGLIGENCE - LIABILITY FOR OTHER'S NEGLIGENCE - where defendant failed to have in place any system to ensure that accessways are kept free of debris - whether failure to provide a safe system of work

[5]

NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - where plaintiff failed to notice debris in accessways

[6]

DAMAGES - MEASURE OF DAMAGES - PERSONAL INJURY - quantum only - economic loss - where plaintiff now travels further to take up lighter duties - whether defendant required to pay for costs of travelling greater distance

[7]

Heil v Suncoast Fitness [2000] 2 Qd R 23, considered.

[8]

O'Brien v TF Woollam & Son Pty Ltd [2001] QSC 217; [2002] 1 Qd R 622, considered.

[9]

Percy v Central Control Financial Services Pty [2001] QCA 226; [2002] 1 Qd R 630, considered.

[10]

Schiliro v Peppercorn Child Care Centres Pty Ltd (No 2) [2000] QCA 18; [2001] 1 Qd R 518, considered.

[11]

Townsend v BBC Hardware [2003] QSC 15 at [19]- [29], considered.

[12]

Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, applied.

[13]

Workplace Health and Safety Act 1995 (QLD), s 30(1)

[14]

[1] Mr Henderson was a coal sampler employed by Carbon Consulting International. On 6 October, 2001 he was injured at the Dalrymple Bay Coal Terminal. He was 44 years old. His date of birth was 2 November, 1957.

[15]

[2] Mr Henderson's job required him to take samples of coal from the coal wagons on the particular train he was sampling. He would then transport those samples to the coal testing facility where he would conduct his tests.

[16]

[3] On the occasion relevant to this action, Mr Henderson was required to take samples from a train at "Rail Receival 1". Rail Receival 1 was the platform inside the receival shed from which a train on a particular track was accessed.

[17]

[4] Mr Henderson arrived at the rail receival shed at about 3:30 pm. He backed his utility up to the doorway usually used for access. As the train was already in the receival area and was accessible only from the side farthest away from him, Mr Henderson was unable to access the train by entering the shed directly and crossing the rail tracks as he normally would. Instead, he walked around the front of his utility to a doorway further along the wall of the shed from the direction he had driven. He then entered the shed and crossed the tracks over the waiting train by means of a bridge and arrived at the correct platform.

[18]

[5] At the platform Mr Henderson took his samples. In the receival area, coal trains dumped their coal into a pit over which the wagons passed. A chute under the wagon was manually opened by an employee of the defendant to let the coal fall into the pit. The sample was taken as the wagon was being emptied in this way. The coal sampler had a long handled scoop which was placed under the flow of coal from the wagon. The sample that falls into the scoop was then placed into a bucket. The buckets were then taken away in the coal sampler's utility to the testing centre.

[19]

[6] The pit into which the coal was unloaded was covered by a grill to prevent oversized rocks and lumps of clay falling into the pit. These large rocks or lumps of clay were called "grizzlies". The grizzlies had to be removed periodically during the unloading process so that the flow of coal through the grid into the pit was not interrupted.

[20]

[7] The platform on which the coal sampler worked had a handrail at the side away from the train. In Mr Henderson's experience, after the grizzlies were taken off the grid, they were usually stacked beside this handrail.

[21]

[8] A coal train commonly consists of 120 wagons. The samples are taken from each wagon. The samples total about 12 to 14 buckets of material per train.

[22]

[9] After the samples are taken and the train has passed through the receival shed, the coal sampler takes the buckets of samples out to the utility. He does this by walking across the railway tracks and down a short flight of steps which leads out of the shed. The stairs are narrow. A coal sampler has to turn slightly side on to descend the steps when carrying a bucket of samples in each hand. The buckets of samples are then placed directly into the utility which is backed up to this entrance. Each bucket of samples weighs about 15 kilograms.

[23]

[10] On the occasion in question, Mr Henderson had successfully taken his samples. As he exited the shed in the usual manner, he tripped on grizzlies scattered on the ground immediately outside the shed doorway. It was becoming dark outside. The shed was brightly lit. Mr Henderson was wearing safety goggles but these had become dusty from the coal dust in the shed. He did not see the rocks. He fell and injured his back.

[24]

[11] Mr Henderson gave evidence that he had never seen grizzlies in the exit before. He had not seen them when he entered the receival area, parked his utility and walked around the front of the vehicle to the doorway through which he entered the shed.

[25]

[13] There was no direct evidence as to who put the rocks in the doorway. There is, however, a strong circumstantial case that they had been dropped there by the persons clearing away the rocks that had previously been stacked beside the handrail. Any resident of Central Queensland would be aware of the continuous running of the coal trains from the mines to the port facilities. Common sense suggests that even though Mr Henderson only saw the grizzlies being stacked against the handrail, the volume of material would be such that they would have to be regularly removed to somewhere else to avoid congestion of the platform. Since the accident the system has been altered to provide skips to hold the grizzlies. These are then periodically removed and emptied.

[26]

[14] Neither the plaintiff nor Mr Boyd Pollentine, another coal sampler with 11 years experience at Dalrymple Bay, had ever seen rocks in that entranceway before this event. Mr Bloomfield, another coal sampler at Dalrymple Bay at the relevant time also gave similar evidence.

[27]

[15] Mr Bloomfield's evidence was that at the time the coal sampler was in the receival area, the only other person present was the Dalrymple Bay employee who was unloading the wagons. He also confirmed that it was not the responsibility of the coal sampler to deal with or handle the grizzlies. There was also evidence that only authorised personnel could access the receival area. The only authorised personnel identified in the evidence were the coal samplers and the Dalrymple Bay employees.

[28]

[16] It follows, therefore, that the grizzlies must have been moved from inside the receival area to the entranceway by the defendant's employees. How or why they came to be in the entranceway is pure speculation. The most likely reason is that they were dropped accidentally while being moved to some other dumping area. It is not essential to the plaintiff's case that the evidence do more than establish on the balance of probabilities that the plaintiff's employees were responsible for their location at the time of the accident. The evidence does so.

[29]

[17] There was a debate about whether the plaintiff's case as pleaded permitted the plaintiff to argue that the defendant was negligent in causing the rocks to be in the area they were in. The plaintiff, in his particulars pleaded that the defendant was negligent in failing to provide a safe system of work. Other more particular grounds for alleging negligence were also pleaded. The defendant argued that the general particular of failing to provide a safe system of work should be construed by reference to the more specific particulars which followed. These did not include anything to do with allowing the rocks in the area in the first place. In my view, the plaintiff is allowed to rely on the general particular. Even though it fails to provide any details of the respects in which the system of work was unsafe, no clarification was ever requested by the defendant; nor did the defendant ever attempt to strike out the particular on the grounds that it was in any way embarrassing. In those circumstances, the conclusion is that the defendant was content to allow the plaintiff to conduct his case in reliance on a general "catch-all" particular, without comment, until after the commencement of the trial. It is, in my view, too late for the defendant to now complain of lack of particularity.

[30]

[18] The plaintiff's alternative case was that the defendant was negligent in failing to remove the rocks. There was no evidence of any system to safely remove the grizzlies from the receival area. Again, common sense suggests that they could not have been retained in the receival area indefinitely. There was evidence of them being periodically moved from the platform to a pile at one end. There is no evidence as to what happened to them after that.

[31]

[19] Two things seem clear to me. Firstly, if grizzlies were piling up inside the shed and no proper system existed for disposing of them, they would inevitably end up distributed around the area of the shed in inappropriate places. Secondly, it is foreseeable that if large rocks are left in any area where people walk, people are likely to fall over them. Thus, there is an obligation on the party responsible for the area to take reasonable steps to ensure it is cleaned up. There is no evidence here that Dalrymple Bay took any step, reasonable or otherwise, to ensure that the rocks were kept out of walking areas.

[32]

[20] The failure to remove case has two limbs. Firstly, the rocks were almost certainly in the doorway when Mr Henderson arrived at the shed. He did not give any evidence that he saw anyone removing the grizzlies from the shed during the two and a half hours he was there. On the contrary, Mr Henderson's evidence was that he only ever saw grizzlies on the platform next to the handrail. Presumably, if anyone was in the shed apart from the unloader and the coal sampler, the coal sampler would have noticed. Thus, there was no one who could have removed grizzlies from the platform while Mr Henderson was working. Even assuming some system existed for picking up accidentally dropped rocks, it must have been a system that allowed them to lie in a doorway for at least two and a half hours. Secondly, the Workplace Health and Safety Act 1995, by s 30(1) provides that:

[33]

"A person in control of a workplace has the following obligations:

...

[34]

[35]

[21] By failing to remove the rocks, the defendant as the person in control of the site was in breach of the obligation imposed by the Act. Reliance was also placed on s 28(3) of the Act.

[36]

[22] In Townsend v BBC Hardware[1] Ambrose J, relying on Schiliro v Peppercorn Child Care Centres Pty Ltd (No 2)[2] concluded that s 30(1) of the Act gave rise to a civil cause of action. In the absence of other authority, I would be satisfied that this breach of the statutory duty was sufficient to give rise to a cause of action. In reaching his conclusion, Ambrose J differed from the conclusion reached by Phillipedes J in O'Brien v TF Woollam & Son Pty Ltd[3]. Phillipedes J was not considering s 30(1)(c) but rather ss 30(1)(a) and 31. Phillipedes J's decision was based in part on the decision of the Court of Appeal in Percy v Central Control Financial Services Pty Ltd[4] where Davies JA by way of dictum affirmed an earlier dictum of the Court of Appeal in Heil v Suncoast Fitness[5] where the opinion was expressed that s 11 of the Workplace Health and Safety Act 1989 did not give rise to a civil cause of action. Section 11 of the 1989 Act was the precursor to s 30 of the present Act. While the sections are different in significant respects and while the conclusion that s 30(1)(c) does not give rise to a civil cause of action appears to sit uncomfortably with the decision in Schiliro (supra) such an anomaly is not one that should be resolved by a trial judge. Like Ambrose J, however, I am not required to decide finally between the two decisions. It seems to me that the failure to have in place any system to ensure that accessways are kept free of debris from the coal trains is negligent under the general law of negligence in the circumstances I have described.

[37]

[23] In this case, I am satisfied that the plaintiff has proved negligence on the part of the defendant in permitting the rocks to be placed in the doorway in circumstances where persons in the position of the plaintiff would not reasonably have anticipated their presence. Persons using the doorway were thus likely to trip over them. Subsequently, the defendant was negligent in failing to promptly remove the rocks or having in place a reasonable system to clear up such obstacles in the receival shed surrounds.

[38]

[24] In the event that I found the defendant negligent it was submitted that the plaintiff was guilty of contributory negligence in that he failed to take proper care for his own safety by not looking where he was going and failing to observe the rocks at some time prior to tripping over them.

[39]

[25] Mr Henderson's evidence was that he had not seen the rocks prior to falling over them. The defendant's counsel argued that if he was keeping a proper lookout he could not have failed to notice them when he drove in beside the shed and backed his utility up to the doorway.

[40]

[26] Mr Henderson's evidence that he did not see the rocks when he parked his utility is given credence by the photographs which were tendered. Immediately in front of the doorway and to its left facing outwards, there is an awning which extends some distance past the edge of the shed. A person driving along the roadway and intending to back up to the doorway would have his primary focus of attention on the steel supporting post of the awning. To reverse the utility up to the doorway would require the driver to drive past this post and then reverse around it. Bearing in mind that in 12 years as a coal sampler Mr Henderson had never seen rocks in this doorway, it is not surprising that he not pay any attention to the possible presence of obstacles in the doorway. As the utility was being reversed, the rocks would probably not have been visible in the rear vision mirror. When he exited the utility, Mr Henderson walked in front of the vehicle. He thus still did not have an opportunity to see the obstruction. When Mr Henderson left the shed he was carrying a bucket of samples in each hand. He was twisted into a side on position to get down the stairs. Carrying buckets in that position made it even more difficult to see to the front, particularly with dusty safety glasses. The interior of the shed was brightly lit. Outside it was starting to become dim as the sun was setting. This would also have made it more difficult to notice the unexpected presence of the rocks. In those circumstances I am not satisfied that Mr Henderson was negligent in failing to have sufficient regard for his own safety. The obstacle was an unusual one. He was entitled, in my view, to assume that the defendant would not allow a doorway used regularly by coal samplers to become or remain obstructed in this way.

[41]

[27] As a result of the fall, Mr Henderson was immediately aware of pain in his lower back. Despite this he finished his shift, partly completed an accident report form and then went home.

[42]

[28] At home, Mr Henderson attempted to rest but had trouble sleeping because of the pain in his back and right hip. The pain continued over the weekend and appeared to be getting worse. Mr Henderson visited his doctor on Monday, 8 October 2001. The doctor prescribed Brufen and Antenex. Mr Henderson was given a certificate for 10 days off work. During that time he revisited the doctor who recommended physiotherapy and exercises. His time off work was extended for another fortnight. Mr Henderson returned to work on light duties on 5 November, 2001.

[43]

[29] Mr Henderson has not returned to work as a coal sampler. He is still employed by Carbon Consulting International Inc but in a clerical role. The clerical position Mr Henderson occupies is based in Mackay rather than at Dalrymple Bay. This necessitates a daily round trip of 84 kilometres from home to work. Mr Henderson lives very near to Dalrymple Bay. As a coal sampler, the daily round trip to work was only approximately 10 kilometers.

[44]

[30] Since the accident Mr Henderson has undergone physiotherapy, hydrotherapy and various rehabilitation exercises. He has received cortisone injections. He has been taking Cerebex and Panadol for pain relief. He suffers pain in his lower back and extending into his right buttock. Sometimes he suffers pain in his left buttock. Mr Henderson's discomfort is increased by driving, particularly the daily drive to and from work.

[45]

[31] Mr Henderson's current position involves minimal heavier work. His ability to do heavy tasks in the garden or about the home is restricted. His pre-accident recreational activities of golf and sailing were also severely curtailed.

[46]

[32] Mr Henderson had some history of back pain before the incident on 6 October, 2001. Mr Henderson suffered a lower back injury when using a jack hammer in about 1988. He suffered another injury unloading a utility in about 1990. In about 1996 Mr Henderson suffered an episode of back pain while on a fishing trip. The most serious of these injuries was the one in 1988. As a result of it, Mr Henderson was off work for about 4 weeks. He required treatment after each of the injuries. His evidence was that on each prior occasion the pain subsided.

[47]

[33] Between 1999 and 2001 Mr Henderson had two minor episodes of back pain. As late as the fortnight prior to the incident in October 2001, Mr Henderson had had three days off work because of back pain.

[48]

[34] Mr Henderson believed he had made a full recovery from each of the earlier episodes.

[49]

[35] After the October 2001 incident, Mr Henderson's condition improved for a time and then worsened. The pain is now significant and constant.

[50]

[36] Dr Cook, an orthopaedic surgeon, identified a pre-existing degenerative change in Mr Henderson's back. Dr Cook's opinion was that, even if the accident in October 2001 had not occurred, Mr Henderson's working life as a coal sampler was limited to about seven years from the date of accident. Over this time Dr Cook expected that the degenerative changes observed in Mr Henderson's spine would have become symptomatic in any event. Over the course of this period, commencing in about 2004 there would have been the onset and gradual increase in symptoms of low back pain. Eventually, this back pain would force Mr Henderson to seek alternative work. Dr Cook's opinion was not significantly influenced by the earlier incidents of back pain suffered by Mr Henderson.

[51]

[37] The picture I am left with is that, Mr Henderson had a history of minor back incidents up to and including October 2001. These episodes, particularly in the latter period were probably as a result of ongoing degenerative changes. The incident in October 2001 has accelerated the onset of symptoms. Without the incident in October 2001, Mr Henderson may have experienced occasional flare ups of back pain but the symptoms would not have become chronic for about three years. After that time the symptoms would have progressed over the succeeding years until they became sufficiently severe to force Mr Henderson to seek alternative work. This process would have taken about a further four years.

[52]

[38] Dr Boys, who gave evidence for the defendant considered that Mr Henderson suffered a soft tissue injury in the fall. He considered that the symptoms relating to that injury would have resolved in about three months and the present symptoms relate solely to the degenerative change.

[53]

[39] The history of a steady improvement over a few months followed by regression appears to fit Dr Boys' analysis. However, I prefer Dr Cook's evidence overall. The degenerative condition was largely asymptomatic prior to the fall in October. It seems to me to be more likely that while the present complaints are attributable to the degenerative condition, that condition would not have become symptomatic for a much longer period had the onset of symptoms not been accelerated by the fall.

[54]

[40] I am therefore satisfied that Mr Henderson's condition has been brought forward by a number of years by the fall.

[55]

[41] In the circumstances I assess damages for pain and suffering at $30,000. I allow interest on $20,000 of that sum at 2% for 3.75 years.

[56]

[42] Mr Henderson's economic loss has been difficult to quantify. He remains employed by the same employer as prior to the accident. He has the same classification as previously under the enterprise bargaining agreement. There is a claim for loss of overtime at $92.00 per week which is said to represent the loss to date. In addition some global sum for diminished opportunity is also claimed for the future.

[57]

[43] The EBA under which Mr Henderson worked as a coal sampler appears to have had built in to it a guaranteed 3 hours per week of overtime. As I understand the evidence, Mr Henderson was paid each week as if he had worked 3 hours of overtime. By the end of the financial year he was required to have in fact worked 141 hours of overtime. When he worked that overtime was immaterial. It was paid weekly. If Mr Henderson worked more overtime than the 141 hours he was paid for it as it was worked. On the evidence, in the few years prior to the injury, Mr Henderson worked only a few hours additional overtime for which he was separately paid. In order to explain the system a pay slip from a Mr Pollentine, another coal sampler, was relied on. This pay slip does no more than show that since the injury to Mr Henderson, ordinary time hours have been increased from 35 to 38. It does not show overtime since it appears to be a slip provided to Mr Pollentine for a holiday period. The overtime built into a worker's pay was overtime above 35 hours a week. What was never explained was what happened with overtime when the ordinary hours were increased. In fact his own pay documents show that Mr Henderson was still able to access overtime after the incident.

[58]

[44] A document dated 19 August 2002, included in exhibit 22 and which was produced and tendered by the defendant, shows that Mr Henderson worked at least 59.5 hours overtime in June and July 2002. That amount was converted into time off in lieu. At page 109 of the transcript Mr Henderson gave evidence that he converted the overtime into time off because of his condition. Working a full week and sometimes additional time required more than the weekend to recover.

[59]

[45] On the evidence, I cannot conclude that Mr Henderson has lost the benefit of working additional overtime. There is no evidence which supports a finding one way or the other. However, it does appear that Mr Henderson does work some overtime from which he derives no financial benefit because of the need to convert it into additional rest time. In the two month period to which I referred the overtime involved was worth $1,938.44 which I assume was gross. I could not conclude on the evidence that this period was typical. Doing the best I can, assuming a marginal tax rate of 25% and using an arbitrary figure of half the amount earned in the period, for which there is evidence, would give an annual loss of $84.00 per week net. Adopting half the overtime hours for the period seems reasonable. About half the overtime worked during the period for which there is evidence, covers the annual leave of another employee. Presumably this only occurs once a year activity. The other half of the hours relate to monitoring which I assume is done regularly. $84.00 per week represents about three hours. Mr Pollentine said that he regularly worked about five to eight hours a week overtime. This is over and above what is now a normal 38 hour week. Before the accident Mr Henderson was not working much more than the three hours overtime a week which was built in to his ordinary time.

[60]

[46] It is not possible to do an accurate calculation. Time taken in lieu is not shown in the pay records and hence the amount taken over a year is not calculable on any of the evidence. The period that is in evidence was put in evidence by the defendant. The defendant did not attempt to qualify the evidence. While I cannot conclude that Mr Henderson is disadvantaged by working less overtime, he is disadvantaged by not being able to take advantage of the overtime financially. To that extent it represents a loss.

[61]

[47] Other significant claims made by the plaintiff include travelling to and from work in Mackay. The authority cited to support this claim was the High Court's decision in Wynn v NSW Insurance Ministerial Corporation[6]. In that case the Court affirmed the appropriateness of discounting an award for lost earning capacity for the saving on costs incurred in realising that capacity. These costs included travel to and from work. It is difficult to see why the converse should not apply for the past at least.

[62]

[48] The plaintiff has maintained his job and his earnings by travelling to Mackay instead of working at Dalrymple Bay. This has cost money which represents a loss. Since past compensation is intended to represent actual loss it seems proper to include the additional cost of mitigating that loss. For the future it may well be different. An issue arises as to how long a defendant can be required to pay for the cost of travelling a greater distance to secure employment. In this case it might be reasonable for the plaintiff to move to Mackay if that is the only place he can secure employment. On top of the travelling claim the plaintiff seeks a global award of $75,000 to compensate for his diminished earning capacity. A global sum for lost earning capacity which reflects higher costs of earning income seems a more appropriate way of compensating the loss represented by the risk of having to travel further in future to get work.

[63]

[49] In this case I propose to allow the lost overtime benefit for the past and for the next three years. For the past I propose to allow the travel claim. While it is properly a component of pass economic loss, because it is a precise, calculated amount, it appears it appears separately in the table below. For the future I propose to allow a global sum to represent disadvantage on the labour market over the next 3 years. That takes it up to the expiration of seven years from the accident when the plaintiff, on the evidence, would be in the same position even had the accident not occurred. That global award will reflect the extra travelling costs and the relative security of Mr Henderson's present employment. The global sum I allow is $24,000. Due to the fact that I have allowed it over three years rather than 3.25 years, a discount of 15% for contingencies is built in.

[64]

[50] For future pharmaceuticals I will allow the amount claimed for three years but discount it by 50% on the basis of Dr Cook's evidence that in any event the plaintiff would now be suffering some symptoms for which, presumably, he would be taking medication. I will allow the other special damages in accordance with the quantum statement.

[65]

[51] In addition to these amounts WorkCover paid a total of $6,164.85 in weekly benefits and lump sum payments.

[66]

[52] On the basis set out above, I assess damages as follows:

[67]

Past economic loss (including WorkCover) for 3.75 years 22,544.85

[68]

Future economic loss @ $84 for 3 years (146) plus $24,000 36,264.00

[69]

Loss of superannuation benefits (future) @ 9% 3,263.76

[70]

Special damages paid by plaintiff (as per quantum schedule) 3,929.33

[71]

Interest on special damage (less $472.15) @ 5% for 3.75 years 648.22

[72]

Past travel expenses at 74 km per day, 48 weeks a year for 3.75 years 34,632.00

[73]

[53] Because the defendant is not the employer of the plaintiff, I have not deducted from the assessed damages the amount refundable to WorkCover under s 278 of the WorkCover Act 1996. If I am wrong in this approach, the damages would need to be reduced by the sum of $7,758.31 which is refundable.

[74]

[54] I give judgment for the plaintiff against the defendant in the sum of ONE HUNDRED AND THIRTY NINE THOUSAND AND EIGHT HUNDRED and FOURTEEN DOLLARS AND SEVENTEEN CENTS ($139,814.17). I will hear argument on costs.

[75]

[1] [2003] QSC 15 at [19] - [29].

[76]

[2] [2000] QCA 18; [2001] 1 Qd R 518.

[77]

[3] [2001] QSC 217; [2002] 1 Qd R 622.

[78]

[4] [2001] QCA 226; [2002] 1 Qd R 630.

[79]

[5] [2000] 2 Qd R 23.

[80]

[6] [1995] HCA 53; (1995) 184 CLR 485 especially at pages 490 - 491; 495.