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[2010] NSWSC 1046
plaintiff. Judgment for the plaintiff against Roche in the sum of $1,205,601.20. Roche was ordered to pay the plaintiff's costs. The court granted leave to approach it on seven days' notice concerning any...
The court found that Roche, rather than the labour-hire employer, had day-to-day control of the plaintiff's work and supplied the truck he had to use. The truck's access ladder was steep, its handrails were inadequate, and the transition onto the platform left the operator without reliable support. Roche's instruction to maintain three points of contact did not fix that design problem. The court found a transverse stairway was a reasonable precaution, held Roche liable, and did not reduce damages for contributory negligence. It assessed Damstra's notional share at 20 percent for the workers compensation adjustment and awarded the plaintiff $1,205,601.20 plus costs.
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In Jeffs v Rio Tinto Limited and Anor [2010] NSWSC 1046, Hoeben J considered a negligence claim arising from a fall at the Wambo Coal Mine. The plaintiff, Graeme Jeffs, was a casual employee of Damstra Mining Services Pty Limited, a labour-hire company supplying skilled workers to Roche Mining Pty Limited. Rio Tinto was also named as a defendant, but the plaintiff discontinued the proceedings against it before trial ([1]-[5]).
No linked legislation citations have been extracted yet.
Roche operated the mine, owned the relevant plant, and controlled the plaintiff's work in practice. Roche personnel inducted and assessed him on equipment, gave him day-to-day directions, conducted safety processes, and supervised his work. Damstra supplied labour but, on the evidence, had little or no supervisory role at the site ([15]-[21], [87]-[96]).
On 14 April 2003, the plaintiff was assigned a Cat 785B dump truck. To reach its cabin, he had to climb a rigid ladder above the bumper bar and then move laterally onto a platform. The ladder was steep, and its handrails ended before the transition to the platform. Roche's parking system required vehicles to be positioned with their front wheels in a V-shaped drain, increasing the ladder's angle from about 75 to about 80 degrees ([23]-[33]).
The plaintiff fell approximately 2.5 metres while climbing. The judge found that he was carrying a bag over one shoulder and that it moved towards his elbow as he reached for the rail. The evidence differed on the precise mechanics, including whether the plaintiff gripped and then lost his grip on the transverse rail, or missed it. Hoeben J concluded that either account involved a problem with the access system, and that the precise sequence did not affect the liability analysis ([54]-[63]).
The engineering evidence identified deficiencies in the ladder. The experts agreed that AS 1657 applied, that the ladder was too steep, and that its handrails did not comply with the Standard's requirement that a handrail extend above the upper landing. They also agreed that a transverse stairway would greatly reduce the risk of the operator overbalancing and falling ([30]-[40], [78]-[79]).
The plaintiff suffered pelvic, sacroiliac and lower-back injuries. He made unsuccessful attempts to return to work and had not worked since the accident. The judgment considered medical evidence and video surveillance in assessing his ongoing disability and damages ([64]-[72], [128]-[159]). The court ultimately entered judgment against Roche for $1,205,601.20 and ordered Roche to pay the plaintiff's costs ([181]).
The first central question was whether Roche owed Jeffs a duty, given that Damstra was his employer. Roche characterised the relationship as resembling one between a principal and an independent contractor, and argued that Jeffs was a qualified and experienced operator who did not need instruction or supervision ([82]-[83]).
Hoeben J rejected that characterisation. The relationship had to be assessed by its substance and the actual allocation of responsibility, not merely by the labour-hire arrangement's formal labels. Roche ran the mine, owned the truck, set the work system, directed the plaintiff, and provided supervision. The court also referred to Roche's statutory mine-management obligations under the Coalmines Regulations Act 1982 ([87]-[91]). Damstra personnel were, in Roche's own description, a labour resource, while Roche applied its systems and supervision to them in an equivalent manner to its own employees ([21], [88]-[89]).
That factual context distinguished the case from Leighton Contractors Pty Limited v Fox and the other authorities Roche relied on. In the court's account, the relevant activity in Leighton v Fox had been placed in the hands of a competent contractor. At Wambo, the work had not been placed in Damstra's or Jeffs's hands in that way: Roche retained close operational control ([92]-[96]). The duty Hoeben J identified was to exercise reasonable care in providing a safe system of work and safe plant ([97]).
The breach analysis applied ss 5B and 5C of the Civil Liability Act 2002 (NSW). The judge found the fall risk foreseeable and not insignificant. The ladder's non-compliance with AS 1657, the discontinuity of its handrails, and the difficult transition from ladder to platform made the risk apparent. A fall exceeding 2.5 metres could cause serious injury ([98]-[104]). The judge considered both what Roche ought to have known and evidence suggesting it may actually have known of relevant hazards, including a 2001 risk assessment focused on maintaining three points of contact ([105]-[106]).
The critical issue was what reasonable precaution was required. Roche argued that its instruction to maintain three points of contact was sufficient and pointed to the absence of earlier injuries of this kind. It also challenged the practicality and cost of retrofitting a transverse stairway ([107]-[110]). Hoeben J concluded that the physical design defect required more than an instruction to take care. The court compared the retrofit cost with the value of the truck and Roche's fleet, and noted a post-accident risk assessment recommending stairways for the Cat 785B trucks ([112]-[116]). The conclusion was not that every ladder defect requires a particular retrofit. It was that, on these findings about the risk, available precaution and circumstances, a reasonable person in Roche's position would have fitted a transverse stairway.
The judge also applied the principle that a safe system of work must take account of inadvertence or miscalculation where those risks are known or ought to be known. The court cited McLean v Tedman in support of that proposition ([117]). The plaintiff's experienced status did not remove the design risk or make an instruction an adequate substitute for safer access.
Causation was not disputed. The experts agreed that a transverse stairway would have significantly reduced the risk, and the court found the access defect caused the accident ([118]). On contributory negligence, Hoeben J found that the system did not provide adequate support points for maintaining three points of contact at the relevant transition. The plaintiff's use of a shoulder bag was consistent with Roche's own risk-control instruction, and the bag's movement exacerbated the system risk rather than establishing fault by the plaintiff ([119]-[123]).
This was a trial judgment applying existing legal sources, not a judgment that purported to enact a new statutory rule. The decision's significance in the judgment lies in its application of negligence principles to the practical relationship between a mine operator and a labour-hire worker.
On duty, the court drew on Stevens v Brodribb Sawmilling Co Pty Limited and considered the decisions in Leighton Contractors Pty Limited v Fox, Pacific Steel Constructions Pty Limited v Barahona, and Unilever Australia Limited v Pahi ([81]-[96]). It treated the actual organisation of the work as decisive to the analysis. Roche's close control and supervision distinguished the facts from cases where an independent contractor had taken responsibility for the activity and its work methods ([90]-[96]). The judgment's reasoning therefore supplies a fact-specific application, rather than a general rule that mine operators always owe labour-hire workers an employer-equivalent duty.
For breach, the court applied ss 5B and 5C of the Civil Liability Act. It addressed foreseeability, significance of risk, likely seriousness, and burden of precaution, and evaluated the retrofit prospectively, by reference to Roche's position and knowledge at the time rather than simply reasoning backwards from the accident ([98]-[118]). The statutory text and the court's application should be distinguished: the sections supply the negligence framework, while the finding that a transverse stairway was required depended on the evidence about the specific truck, its access arrangements and the cost and practicality of modification.
The judgment also applied ss 5E and 5R in addressing causation and contributory negligence. It found factual causation established and rejected contributory negligence because the unsafe configuration made the required three-point contact difficult at the critical point ([118]-[123]).
The damages adjustment illustrates the separate role of the Workers Compensation Act 1987 (NSW). Under s 151Z(2), the court assessed the employer's notional liability even though Damstra was not sued. It set Damstra's share at 20 percent, reflecting its non-delegable duty but limited involvement in providing or supervising the work ([124]-[127]). The court then identified the difference between the relevant Workers Compensation Act and Civil Liability Act assessments as the maximum available non-economic loss, calculated the resulting adjustment, and reduced the award by $14,344.60 ([177]-[179]). The judgment does not state that the award changed the statutory regimes; it applies them to the case's particular liability and damages findings.
At [97], Hoeben J states that Roche's duty was “to exercise reasonable care in providing him with a safe system of work and with safe plant with which to carry out his work.” In plain English, Roche's responsibility followed from its role in running the mine, supplying the equipment and supervising Jeffs's work. The court did not treat Damstra's status as employer as automatically excluding Roche's responsibility.
At [100], the judge says the accident was “of the kind which the standard was designed to prevent.” The relevant point is that the alleged risk was not merely a theoretical possibility: the standard's requirements for ladder angle and handrails related to the type of fall that occurred.
At [116], the court explains that directing drivers to maintain three points of contact was not enough. In plain English, a safety instruction did not cure a physical arrangement in which the operator could not reliably maintain those contact points at the transition onto the platform.
At [117], the judgment says safe work systems must take account of inadvertence or miscalculation where the risk is known or ought to be known. This explains why the plaintiff's familiarity with the truck and experience as a plant operator did not, by themselves, dispose of the system-design issue.
At [120], the judge rejects contributory negligence because there were not adequate support points to enable Jeffs to maintain three points of contact. At [122], the court adds that carrying the shoulder bag followed a Roche direction. Together, those findings explain why the plaintiff's conduct was not treated as an independent fault that reduced damages.
The reasoning is most relevant where the evidence shows that a principal or site operator, rather than the worker's formal employer, has substantial operational control. Relevant features in this case included control of the worksite, ownership and provision of the plant, direct day-to-day supervision, the setting of the work system, and the absence of meaningful on-site supervision by the labour-hire employer ([18]-[21], [87]-[97]).
It is also relevant where a worker must use equipment with a physical access defect, the hazard is foreseeable and potentially serious, and the evidence identifies a practical precaution. Here, the defect was located at a difficult transition point, the ladder's angle and handrails did not comply with the cited standard, and experts agreed that a transverse stairway would significantly reduce the risk ([31]-[40], [78]-[79], [99]-[115]).
The judgment may be less directly comparable where a competent contractor has genuinely taken control of the activity and its work methods, or where the labour-hire employer provides direct supervision and manages the work system. Those were features discussed in distinguishing Leighton v Fox and Unilever Australia ([92]-[96]). Any comparison would depend on the actual evidence about control, supervision, equipment, risk knowledge and available precautions.
The contributory-negligence reasoning is tied to the system found by the court. The plaintiff was required to negotiate a transition with inadequate hand support, and the bag use complied with Roche's direction. Different evidence about available handholds, instructions, bag carriage or worker conduct could affect whether this part of the reasoning applies.
The supplied judgment is dated 20 September 2010 and contains no account of later judicial treatment of Jeffs. On the source available here, it is not possible to say whether later courts have followed, distinguished, questioned or otherwise treated the decision. No subsequent cases or databases are provided in the materials, so any claim about later treatment would require sources beyond this judgment.
Within Jeffs itself, the court considered earlier authorities including Stevens v Brodribb, Leighton Contractors v Fox, Pacific Steel Constructions v Barahona, Unilever Australia v Pahi, McLean v Tedman, and Commissioner of Railways v Ruprecht. Those are authorities discussed in this judgment, not evidence of how later courts have treated Jeffs ([81]-[96], [117], [121]).
The decision does not resolve every question that might arise in another labour-hire workplace. Its duty analysis depends on the particular degree of Roche's control and the absence of substantial supervision by Damstra. It does not establish that the same duty, or the same content of duty, will follow wherever a labour-hire worker is present at a principal's site.
The judgment also records that extending the existing handrails was not pressed as an alternative precaution because neither expert had addressed its feasibility or adequacy. The judge noted that it might create other safety problems, while Roche had referred to handrail modifications in its post-accident reports ([111]). The case therefore does not decide whether such an alteration would have been a reasonable precaution in different evidence or circumstances.
Other questions left dependent on evidence include the cost and practicability of retrofitting equipment across a fleet, the defendant's knowledge of a particular design hazard, and how worker conduct interacts with a deficient system. The court's assessment of Damstra's 20 percent notional share and the damages adjustment also rests on the evidence and statutory framework described in this judgment ([124]-[127], [177]-[179]).
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CITATION : Jeffs v Rio Tinto Limited and Anor [2010] NSWSC 1046
HEARING DATE(S) : 19.07.2010; 20.07.2010; 21.07.2010; 22.07.2010
DECISION : Judgment in favour of the plaintiff in the sum of $1,205,601.20. Defendant is to pay the plaintiff's costs of the proceedings.
CATCHWORDS : TORTS - negligence - duty of care - duty owed by mine operator to employee of labour hire company - existence of duty and content of duty - Leighton Contractors Pty Limited v Fox [2009] HCA 35 - application of that case - standard of care - assumption by mine operator of responsibility to supervise - knowledge of defect in system - what was required to meet standard of care - whether breach of duty established - TORTS - adjustment of liability between mine operator and employer - non-delegable duty of employer owed to employee - TORTS - contributory negligence - experienced plant driver - attempting to implement unsafe system of work - DAMAGES - application of Civil Liability Act 2002 and Workers Compensation Act 1987, s 151Z(2) - DAMAGES - effect of medical evidence - effect of observations made of plaintiff.
Civil Liability Act 2002 LEGISLATION CITED : Coalmines Regulations Act 1982 Workers Compensation Act 1987
Commissioner of Railways v Ruprecht (1979) 142 CLR 563 Leighton Contractors Pty Limited v Fox, Calliden Insurance Limited v Fox [2009] HCA 35, (2009) 240 CLR 1 CASES CITED : McLean v Tedman & Anor (1984) 155 CLR 307 Pacific Steel Constructions Pty Limited v Barahona; Jigsaw Property Group Pty Limited v Barahona [2009] NSWCA 406 Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16 Unilever Australia Limited v Pahi & Anor; Swire Cold Storage Pty Limited v Pahi & Anor [2010] NSWCA 149
Graeme Wayne Jeffs - Plaintiff PARTIES : Rio Tinto Limited - First Defendant Roche Mining Pty Limited - Second Defendant
COUNSEL : Mr ID Roberts SC/Mr T Edwards - Plaintiff Mr R Gambi/Mr W Summers - Second Defendant
SOLICITORS : Cragg Braye and Thornton - Plaintiff HWL Ebsworth Lawyers - Second Defendant
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
2009/297888 - Graeme Wayne JEFFS v RIO TINTO LIMITED & ROCHE MINING PTY LIMITED
JUDGMENT 1 HIS HONOUR: Nature of Proceedings The plaintiff brings proceedings in negligence against the second defendant, Roche Mining Pty Limited (Roche), arising from an accident which occurred at the Wambo Coal Mine in the Hunter Valley (Wambo) on 14 April 2003. The accident occurred when the plaintiff fell approximately 2.5 metres while climbing into a Caterpillar 785B dump truck (Cat 785B). A Cat 785B is a large piece of plant with a 50 tonne capacity. 2 At the time the plaintiff was employed by Damstra Mining Services Pty Limited (Damstra) as a casual employee. Damstra was a labour hire company which provided skilled employees to Roche. 3 Roche was in charge of the running of the Wambo Coal Mine and owned the plant and equipment used at the mine, which included the Cat 785B in relation to which the plaintiff was injured. 4 The plaintiff alleges that Roche failed to provide him with a safe system of work, required that the Cat 785B be parked in a way that increased the risk of its operator falling and failed to provide a safe means of access to the cabin of the truck. 5 The plaintiff discontinued proceedings against the first defendant (Rio Tinto, the owner of the mine) prior to the trial. As against Roche, the matter proceeded as a full contest, both as to liability and quantum.
Factual background 6 Except as otherwise indicated, I find that the following facts have been established. The plaintiff was born in May 1964. He went to school in Ipswich, Queensland and left school half way through Year 10 when he was 15. Thereafter he worked in a number of jobs including those of a storeman, factory labourer, fencing contractor and residential care officer. Most of his jobs involved heavy labouring work. 7 In 1988 he commenced work as a plant operator. He became qualified to drive all types of heavy equipment used in civil engineering works, i.e. tractors, graders, dozers and dump trucks. He worked for a variety of employers and had no difficulty in obtaining work. The work was almost always in Queensland. 8 The plaintiff married for the first time in 1982 but the marriage only lasted 12 months. There were two children by that marriage, who are now adults. The plaintiff remarried in 1991 but 8 months later his second wife was killed in a motor vehicle accident. There were no children from that marriage. The plaintiff married his present wife in 1993. They have three children, one from his wife's previous relationship and two children of their own aged 16 and 9. Both those children are still at school. 9 In 1991 the plaintiff suffered an injury to his left shoulder. He underwent an operation in 1994 in which the outer end of his left clavicle was excised. He has not undergone any further treatment in relation to his left shoulder since 1994 and it has not subsequently interfered with his ability to work as a plant operator. 10 The plaintiff continued to work as a plant operator in civil engineering works until 26 November 2001 when he commenced working for Henry Walker Elton Contracting Pty Limited (HWEC), a company involved in the provision of contracting services to the coal industry. The plaintiff moved into the coal industry because of the very good money which was available at the time. His brother had worked in the coal industry for some time. 11 When the plaintiff commenced with HWEC he was employed at the Ebenezer Mine near Ipswich. He was employed to drive various items of plant associated with that open cut colliery. When he started at the Ebenezer Mine, it was common knowledge that the mine was going to close and like other HWEC employees, he was advised to look for job opportunities that might come up elsewhere in the mining industry. 12 The plaintiff continued to work for HWEC at Ebenezer until 1 November 2002. At that time he learned that Damstra was looking for employees to work in the mines in the Hunter Valley. The plaintiff approached Damstra and was told that the company was looking for plant operators to work at Wambo. 13 The plaintiff was told that his work with Damstra would initially be that of a part-time casual. In late November 2002 the plaintiff and his family moved to Muswellbrook and on 9 December 2002 he commenced working at Wambo. 14 Before commencing work at Wambo, the plaintiff underwent induction training at Mr Damstra's house in Singleton. This consisted of basic OH and S training associated with working in coal mines. The plaintiff was already familiar with most of those matters because of his experience in Queensland. 15 When he commenced working at Wambo the plaintiff underwent further induction training from Roche and was passed as qualified to operate three different types of machines. These were the Komatsu 830E Dump Truck, a D11 Dozer and a 16G Grader. Before being passed on those pieces of equipment, the plaintiff had to demonstrate to a Roche safety officer that he was familiar with the safe operation of each of those items of equipment. 16 Subsequently as part of his employment at the Wambo Coal Mine, the plaintiff was passed on the Cat 785B and the 992 Loader. Once again he had to demonstrate to a Roche safety officer that he could operate the machines safely. 17 The workforce at the Wambo Mine was a mixture of Roche personnel and Damstra personnel. Damstra personnel made up about 20 percent of the workforce. Damstra personnel wore Damstra uniforms and Roche personnel wore Roche uniforms. 18 The plaintiff's work at Wambo was controlled on a day-to-day basis by a site supervisor employed by Roche. That person would give the plaintiff directions as to what work he was to carry out. During the night shift on weekends, a Damstra shift foreman would be present but during the rest of the time the shift foreman would be a Roche employee. 19 The safety officer at the mine was an employee of Roche. He gave directions to the plaintiff and other Damstra employees as to matters relating to occupational health and safety. The safety officer used to conduct toolbox meetings and was responsible for passing personnel on particular items of machinery. If the plaintiff required maintenance to be carried out on any vehicle, he would report the matter to the Roche shift foreman, who would then report it to the Roche workshop supervisor. 20 The plaintiff occasionally saw senior Damstra personnel at the site. On those occasions they were usually involved in meetings in the offices with Roche executives. The plaintiff said that he did not see senior Damstra personnel in the open cut mine very much. 21 The plaintiff's evidence on these issues was confirmed by a letter from the Roche safety officer at Wambo to the District Inspector of Mines, dated 5 May 2003 (exhibit P), which was sent following the plaintiff's accident. It is useful to set out the contents of that letter: "Roche Mining Wambo used Damstra Mining Services as a labour hire resource to man the weekend shifts and to top up crews on Mondays and Fridays. There are currently 47 Damstra employees inducted at Wambo of which approximately 25 work set shifts on a regular basis. Prior to employment Damstra Mining Services perform a reference check in addition to a set interview process determining current competencies and previous safety performance. Roche Mining is then supplied with copies of the employee's drug and alcohol test results, resume and any relevant prior learning for review. If the person is suitable they attend a site induction where they are introduced to Roche Mining procedures, including emergency procedures, first aid facilities, site traffic rules, the site drug and alcohol policy, tagging and isolation and site amenities. The induction concludes with a pit tour. The employee is then assessed and appointed to operate the required machinery while at Wambo, and added to the site training matrix. All Damstra personnel are under direct supervision of the Shift O.C.E. and are required to participate in Roche Safety Systems, as listed. Roche Mining hazard reporting system, Pre Shift Information Meetings, monthly toolbox talks, monthly safety contacts by the shift O.C.E., internal and external safety alert discussions, participation in JHA development, random D/A testing. In summary, Damstra Mining Personnel slot into the fixed roster and workforce following the same induction and machine authorisation process as Roche employees. They are then party to all systems including the application of the Roche Management System and supervision of the O.C.E., in an equivalent manner to Roche employees. This cover note serves to answer a number of questions on the attached audit as noted." 22 The plaintiff enjoyed the work at Wambo. The money was good and he wanted to continue working there. Shortly before he was injured he spoke to one of the Roche senior personnel (Mr McAuliffe) and asked him whether he could get a fulltime job with Roche. Mr McAuliffe said "Yes, when one becomes available". 23 As part of the system of work at Wambo, the plaintiff was instructed by Roche to park any vehicle that he had been using during his shift on a hard stand area with the front wheels in a "V" drain. This was a depression dug by a grader, approximately half a metre deep. The plaintiff was told that the trucks were to be parked in that way so that if the handbrake mechanism failed, the truck would not roll away. 24 In relation to the Cat 785B (the best photographs of which are in exhibit 1), access was gained to the driver's cabin (which was on the left side of the truck) by means of two ladders. There was a flexible ladder beneath the bumper bar and a rigid ladder comprising five steps above the bumper bar. The ladder above the bumper bar was made of metal with non-slip steps. It was inclined at an angle of about 75 degrees to the horizontal. When the truck was standing with its front wheels in the "V" shaped trench, it was agreed that the angle of the ladder became 80 degrees to the horizontal. The ladder was equipped with handrails on each side, but those handrails extended only slightly beyond the top step of the ladder. 25 In his evidentiary statement the plaintiff described the means of access to the Cat 785B as follows: "24 On the 785B it was necessary to climb up to the bumper bar by ascending the three bottom steps, whilst holding the bottom of the handrail that can be seen in photographs 1 and 3 annexed to Dr Grigg's report. Having accessed the bumper bar one then had to climb five steps. You could use the side rails as handholds until you got to the third step. It was then necessary to find other handholds to negotiate the top step and, from the top step, to the platform that ran around the front of the driver's cabin. For some reason (it is unclear to me why) the handrails on the ladder which was under the driver's cabin did not extend all the way up. On the opposite side of the vehicle (as can be seen in photograph number 1) the handrails do extend the whole way up." 26 It was common ground that the ladder on the right front of the vehicle could not have been used by the plaintiff for gaining access to the driver's cabin since it was for use in emergencies if the other ladder could not be used. 27 The plaintiff described his usual method of gaining access to the cabin of the truck in his evidentiary statement as follows: "26 I developed a practice, when climbing the ladder under the driver's cab on the 785B to climb up to the third from the top rung (ie the third rung above the bumper bar). Once having reached that rung, and with both my feet on that step, I would transfer my right handhold to the upright part of the guardrail … I would then reach out with my left hand to take hold of the horizontal bar which runs across the front of (and just below) the windscreen of the driver's cabin. After doing that I then climbed up to the second top rung with my left hand still holding the horizontal bar … After getting both feet on the second top rung I would then pull myself up to the top rung of the ladder, then twist to turn right stepping with my right foot onto the platform. The method of climbing the ladder which I have described above is the same as I always used right from the very first time I accessed a 785B during my passing out assessment. I was never instructed to use another method of climbing the ladder." 28 The plaintiff said that as of the 14th April 2003 he knew and had known for years that it was important to keep a three point contact at all times when ascending or descending that or any other ladder. 29 When the plaintiff's ability to operate the Cat 785B was assessed, a twelve item checklist was used by the assessor. That assessment took place on 16 January 2003. One of the items which was assessed at that time was "boarding and alighting technique". This item was ticked, indicating that the plaintiff had been assessed as competent in that activity. 30 Evidence was given by two experts. Dr Grigg, a chartered professional engineer, provided reports and gave evidence on behalf of the plaintiff. Mr Underwood, an occupational health and safety mechanical engineer, provided a report and gave evidence on behalf of the defendant. There was a high level of agreement between these experts. 31 They agreed that the ladder above the bumper bar on the Cat 785B would be classified as a "step ladder" for the purposes of Australian Standard 1657. They agreed that AS 1657 applied to the ladder. They agreed that the Standard also provided that "the angle of slope of stepladders shall not be less than 60 degrees nor more than 70". They agreed that the use of the word "shall" in the Standard indicated that a requirement was mandatory. They agreed that because the ladder had an angle of 80 degrees, it did not comply with the standard. 32 They agreed that the requirement in clause 5.5.5 of the Standard applied to the ladder. This clause required: "The bottom of the handrails shall commence at a point not greater than 900 millimetres above the floor or lower landing and, except as provided in clause 5.2, the handrail shall extend above the upper landing to a height of not less than 900 millimetres and be connected to the guard railing of the landing." 33 They agreed that the ladder on the Cat 785B did not comply with clause 5.5.5 of the Standard. They agreed that it was not a ladder which was exempted from compliance with clause 5.5.5 because of the provisions of clause 5.2. 34 Both experts agreed that the upright of the guardrail (which they described as the stanchion) was not well placed to be used as a handhold. This was because it might be level with or on occasions even behind the centre of gravity of the person using the ladder. On that issue Dr Grigg said: "Coming back to this other issue, whether or not the stanchion on the guardrail of the landing at the top is suitable, bearing in mind that there's nothing on the left hand side is somewhat dependent on just how tall the person is and how far they are up the ladder, of course, and if the person is standing about half way up then the top of the ladder would be around waist height, I would expect, or maybe a bit lower, and so there's still a fair way to go to actually get to the point where they can reach the handrail across the front of the windscreen." (T169.10) 35 Both experts agreed that the ladder providing access to the driver's cabin had an apparent design flaw in that the side handrails did not extend up to the grab rail under the windscreen. The experts contrasted that with the handrail on the ladder on the right front of the truck. 36 The conclusion arrived at by Mr Underwood in his report was as follows: " Conclusion 43 The Cat 785B dump truck (Roche Mining Unit 385) had several inherent design weaknesses that contributed to the risk of falling from the ladder at or near the transition point (where the operator was required to move laterally from the ladder to the access platform). The parking of the vehicle so that it was facing slightly downhill only marginally exacerbated the risk of a person overbalancing if they were using the ladder handrails and the grab rails provided for the ladder access since it only marginally increased the angle of inclination of the ladder. 44 The risk of falling was significantly greater if the person boarding the dump truck used the access platform stanchion as one of the three points of support (the actions being taken by Mr Jeffs at the time he slipped and fell) rather than the grab rail under the windscreen. The risk would also be greatly increased if any load being carried up the ladder was to shift during the climb (and particularly if it shifted when the person was at the top of the ladder section), or the person attempted to readjust the load being carried while they were standing on the ladder." 37 In the course of his evidence, Mr Underwood said: "The only thing that I think we can both say, Dr Grigg and myself, is that the system, the actual arrangement was not a particularly good design. It had inherent faults that I think had some factors in the actual event occurring." (T174.20) 38 Doctor Grigg in his evidence noted that the steepness of the ladder required extra reliance to be placed on secure handgrips. He said: "Look, I agree that it would be less likely, but I think there is a tendency here to focus just on the rails. You bear in mind that these steps are steep and that creates a situation that I think you said the plaintiff was saying he was sort of pulling himself up. Now, that occurs because the steps are steep." (T181.40) 39 In his first report on this issue Dr Grigg said: "Although the ladder is equipped with handrails on each side, at the top of the ladder there is a vertical surface facing a person climbing the ladder, and the next available handhold, other than the vertical posts supporting the guard rails on each side at the top of the ladder, is a horizontal rail mounted on top of the sloping surface in front of the driver's windscreen. Thus when approaching the top of the ladder, there is a need to transfer the hands, probably first to the vertical posts of the guard rails and then to the horizontal rail in front of the windscreen. These transfers would all have to occur whilst standing on the narrow treads of the ladder and since the treads would be expected to be horizontal when the truck was horizontal, if it was adopting a nose down attitude due to its front tyres resting in a ditch, there would be a slight forward slope on each of the treads. Based on the description of the incident, it was whilst in the process of transferring the handgrip from the rails on each side of the ladder, to the grab rail that the incident occurred. Thus the lack of continuity of the handrails appears to have been a significant factor in the causation of the incident. The relatively narrow treads on the ladder would mean that in the absence of a secure grip on the hand or grab rails the feet would be unable to provide any significant degree of stability that could assist in preventing a fall. In all the circumstances, although the ladder fitted to the front of the truck provided a means of access to the driver's cabin, it required a much higher level of care than would be required on alternative access systems and especially so when wet." 40 In his second report Dr Grigg set out the following observations and conclusions: "3. I agree with Mr Underwood that the Cat 785B dump truck has an inherent design weakness and I believe that the requirement to move sideways from the top of the ladder to the access platform in a region where the handrails are not continuous involves a significant risk of a person falling. While the risk of overbalancing and falling might be exacerbated by movement of a slung load, it is normal practice for drivers of such machines to carry such items when mounting and dismounting and the access system should cater for this probability. 4. Although I agree with Mr Underwood that the access platform stanchion is poorly positioned to provide a good means of stabilising a person relying on it as a means of support, it is the only member providing a semblance of continuity of a handrail above the top of the ladder. The grab rail below the windscreen is relatively remote and there is nothing leading close to it on the left hand side at the top of the ladder. Conclusions 1. The access ladder being used by the plaintiff could best be described as primitive and not in conformance with Australian Standard As 1657 or Mining Industry Guidelines in New South Wales. 2. A step access system could have been fitted to the truck at moderate cost and it would be expected to significantly reduce the risk of a fall and of injury such as those suffered by the plaintiff." 41 There is an issue as to exactly how the plaintiff's accident occurred. I have concluded that ultimately not much turns on which version of events is accepted. In deference to the submissions which were made, however, I will set out the competing versions. 42 On the evening of 14 April 2003 the plaintiff's shift commenced at 8pm. It had been raining that day although the last fall of rain was recorded as having occurred at 2pm. The ground conditions were described in the post accident reports as "muddy". 43 At the beginning of the shift the plaintiff gathered with his co-workers in the crib hut where the Roche supervisor told them what their duties were to be. He was allocated vehicle 385 which was a Cat 785B. After being assigned his task, he was driven to the hard stand where the truck was located. 44 As well as his hardhat, the plaintiff had a backpack which contained a small torch, a book, a packet of biscuits and a small drink bottle. He said that the backpack had two shoulder straps and when he was climbing into vehicle 385, the backpack was on his back with his arms through both shoulder straps. 45 After reaching the hard stand, the plaintiff carried out a safety inspection of vehicle 385. This involved checking the tyres, checking for oil leaks and checking for any damage from the prior shift. To do that he used the small torch which he carried in his backpack. 46 In his evidentiary statement the plaintiff described what next occurred as follows: "31 I followed my usual course of climbing the ladder with both hands on the rails as I moved a foot, and then when both feet were on a step, I would move one hand at a time not really releasing the rail simply relaxing my grip on it and sliding the hand up. 32 I got to the stage where I was at the step third from the top. I had both feet on it and my left hand on the left hand rail. My right hand was holding on to the upright of the guardrail. I then took hold of the horizontal bar under the windshield with my left hand. I then went to pull myself up to the second top rung of the ladder. Just as my left foot was unloading weight from the third rung, my left hand slipped. The sudden jerking movement meant that I lost my balance. I still retained my right hand hold on the upper vertical bar of the safety rail. The jerking motion caused me to lose balance so that my feet slipped off the narrow rungs of the ladder and I fell. I maintained my right hand grip for a very brief period but as I fell I was unable to maintain my grip with the right hand and I fell to the ground." 47 In his evidence in chief, the plaintiff described what happened as follows: "Q. Having taken the upright with your right hand, what did you do then? A. I then released my left hand grip from the ladder and reached up and took hold of the handrail below the windscreen.
Q. You are now holding your arm up slightly above your shoulder height? A. Yes. (T26.31) … Q. I've asked you why you took the upright in your right hand. Why did you take the bar under the windscreen in your left hand? A. Because that was the next most comfortable handhold coming up the ladder because the rails were too low on the ladder. (T27.15) …
Q. On the evening of 14 April, having taken the upright in your right hand and the crossbar under the windscreen in your left, what did you then do? A. I then started to pull myself up to the next rung of the ladder with my arms bringing my left foot off the third rung.
Q. As you took your left foot off the third rung, did something happen? A. Yes. As I took my left foot off the third rung and pulled myself up the top of the truck and up my left hand slipped off the handrail.
Q. Why was it necessary to pull yourself up? A. Because being a vertical ladder you automatically pull, take your weight to lift yourself forward and up on the ladder." (T27.35) 48 In reports signed by the plaintiff at about the time of the accident and in reports made following the accident, the accident was described in these terms: "Front ladder of a 785B dump truck, I lost grip with my left hand, lost balance and fell away from the ladder." (Report 16.4.03 - exhibit E). "Lost grip while climbing on ladder of 785B Cat dump truck, overbalanced losing grip of other hand." (Compensation Claim Form, 15.4.03 - exhibit F.) "At Graeme's best recollection when nearing the top of the access ladder of truck 385 and reaching for the handrail under the cabin windscreen he missed the handrail causing him to lose his balance. Although Graeme had a hold of the cat walk upright with his right hand, he was unable to regain his balance …" (Accident Report - exhibit J.) "At Graeme's best recollection when nearing the top of the access ladder of truck 385 and reaching for the handrail under the cabin windscreen, he missed the handrail causing him to lose his balance …" (Incident Investigation Report - 17.4.2003 - exhibit K.) "When nearing the top of the access ladder of a Caterpillar 785 truck and reaching for the handrail under the cabin windscreen the operator missed the handrail with his left hand causing him to lose his balance …" (Significant Incident Report - 24 April 2003, exhibit M.) 49 Mr Patterson, a Roche driver, who was in a larger dump truck parked next to the plaintiff's truck, gave evidence as to what he saw. That evidence was: "Q. You mean the passenger's side? A. Right-hand side, offside, looked to the left, looked to the right. I remember Graeme climbing the stairs.
Q. That's Mr Jeffs? A. Mr Jeffs, sorry. I remember him climbing the steps.
Q. Just stopping you there, was there anything unusual about the way he was climbing up the steps? A. Not really, no.
Q. What happened next? A. I remember him getting - as he was coming up into view I remember him reaching - I remember his actual - he had a bag on this shoulder.
Q. You are now pointing to your right shoulder? A. Right shoulder, yeah.
Q. You said a bag, but what was it that you could see? A. Oh, it's a - it's just a bag, they have a flap over the top and they have a shoulder strap, and that was on his shoulder. I remember him when he was about in this position that --
Q. Just stopping there because it has got to be noted on the transcript. We don't know what that means. You just had your right hand about 90 degrees at your elbow and with your right hand you just indicated? A. Yes.
Q. And your left hand was slightly higher than that? A. Yes, just.
HIS HONOUR: His left hand was actually above his head.
Q. Was he holding on to anything at that stage? A. He was holding on to the two yellow rails indicated. (T68.30) … Q. From that moment onwards did you see Mr Jeffs move his hands from those positions? A. Yes.
Q. And did you see anything happen to his body? Did his head go up or down? A. He was still ascending the ladder at the time.
Q. Are you able to indicate on that photograph where his left or right hand then moved to? A. His right hand came to the top of the rail.
Q. Could you put a circle with a Y inside the circle? A. (Witness complied.)
Q. Have you done that? A. That's for the right hand. That's all I've done.
Q. Did he do anything with his left hand? A. He let go with his left hand and was starting to reach for the top rail.
Q. When you say the top rail-- A. Sorry, the rail which runs across below the windscreen of the cab.
Q. Did you see him take hold of that horizontal rail? A. No.
Q. What happened next? A. I saw the strap on his bag slip down to his elbow.
Q. You are just pointing to your right shoulder and pointed down to your right elbow? A. Yes.
Q. Where was his right hand when you saw that? A. It was still fixed to the top of the right-hand rail.
Q. Is that the one with the circle and the Y inside it? A. Yeah.
Q. And what happened next? A. I saw him reach across, sort of reach across to grab the strap.
HIS HONOUR: When he gave that answer the witness moved his left arm and positioned it on the inside of the right elbow.
Q. Is that what happened, Mr Patterson? A. Yes.
Q. What happened next? A. As he has reached across - sorry, I saw him begin to start to swing around.
Q. You are indicating in an anticlockwise direction? A. Yes.
Q. What happened next? A. As he has begun to swing around, like I don't know, he just sort of kept swinging and all of a sudden he just started - just disappeared. But I could still remember his right hand still having hold of that rail and sliding." (T70.31) 50 Mr Patterson's version was challenged on a number of bases. Mr Patterson agreed that he had provided a statement on the night of the accident (exhibit 2) in which he described the incident as follows: "I saw Graeme Jeffs climbing the access ladder of his truck 385. He was about to reach with his left hand to grab the rail placed just below the truck windscreen when I saw him suddenly slip down out of the view. As he fell his right hand still had hold of the rail but slid down. He also fell to his right as he went down." 51 Mr Patterson agreed that on the night of the accident he had given a statement to the Mines Inspector (exhibit G) in which he described the incident as follows: "I could see Graeme Jeffs ascending his truck which was 385 I believe which was parked next to mine. I noticed that his left hand was just releasing the grip to reach for the next grab rail when suddenly his whole body descended rapidly out of view. I also noticed that his right hand maintained contact with the right rail but was sliding down the rail as he descended." 52 Mr Patterson agreed that there was no mention in either of those statements of any shoulder bag or that the shoulder bag had slipped. He explained that discrepancy by saying that in discussions with the other drivers following the accident, it was thought that referring to the shoulder bag might interfere with the plaintiff recovering compensation (T73.35). Mr Patterson agreed that he had not made any mention of the shoulder bag slipping until he provided a statement to an investigator in 2007. 53 Mr Patterson described the sort of shoulder bag which he had seen the plaintiff using as a shoulder bag with a single strap of the kind issued to Roche employees. The plaintiff's wife gave evidence that the backpack which the plaintiff was using on the day of the accident belonged to one of his children and had two shoulder straps. She agreed that if the straps were extended, it could have been used in such a way that it hung from one shoulder. 54 Leaving aside the question of the shoulder bag, the alternatives as to how the accident occurred would seem to be that the plaintiff took hold of the transverse rail beneath the windscreen but lost his grip, or that he reached for the transverse rail but missed it. Since the plaintiff has been consistent in saying that he lost his grip on the transverse rail, the alternative version could only have come from the statements made by Mr Patterson at the time of the accident. 55 For the purposes of the plaintiff's claim, it does not matter which of those two versions is correct. They both involve a problem relating to the system for access, either the plaintiff reached for and missed the transverse rail or he was able to grip it but lost that grip. 56 In relation to the shoulder bag, I am inclined to accept the version of Mr Patterson. One could easily understand why it might be thought by the other drivers at the time of the accident that nothing should be said about it and I can understand Mr Patterson not mentioning it at the time to assist the plaintiff. No reason was identified as to why Mr Patterson would say something which was not correct to the investigator in 2007 and would repeat that version of events in his evidence when under oath. Moreover, I found Mr Patterson to be an impressive witness and to be doing the best he could to assist the Court. 57 Nevertheless, it was clear that there were some inaccuracies in Mr Patterson's evidence. These, in my opinion, were unintentional. He was clearly mistaken as to the type of shoulder bag which the plaintiff was carrying. His evidence as to hearing the plaintiff's right hand move down the guardrail was also clearly incorrect. One also has to keep in mind that in making his observations, Mr Patterson was looking across the width of his own truck through the far window and that his capacity to observe would have been obstructed to some degree. Moreover, the timeframe within which the incident occurred was very short. 58 I am satisfied that at the time he was climbing the ladder the plaintiff was carrying a shoulder bag in the manner described by Mr Patterson, i.e. over one shoulder, rather than fully secured on both shoulders. That bag, however, was probably not of the kind issued to Roche employees but that described by the plaintiff's wife with the straps adjusted in such a way as to hang over one shoulder. 59 I am satisfied that the plaintiff did grip the transverse rail for a brief period at least with his left hand but then subsequently lost his grip on it. This is consistent not only with his evidence at trial, but with the statements which he made on the night of the accident. From where he was positioned it would be difficult for Mr Patterson to say with any certainty that the plaintiff missed the transverse rail entirely when he was reaching for it rather than obtained a partial grip on it which he then lost. 60 I am satisfied that the shoulder bag did slip onto the plaintiff's right elbow while he was in the process of reaching out with his left hand to grip the transverse rail. I am not sure whether it was the transference of weight which caused him to lose his grip on the rail or whether the movement of the shoulder bag acted as a distraction, together with some transference of weight, which led to the same result occurring. Mr Underwood in his report allowed for both possibilities (see [36] hereof). 61 With the exception of the plaintiff's failure to mention the movement of the shoulder bag, I am satisfied that both he and Mr Patterson were doing their best to describe how he climbed the ladder immediately before the accident. Like Dr Grigg, however, I doubt whether either witness has a clear recollection of the exact movement of each arm and leg immediately before the fall. This is particularly so when the plaintiff was carrying out a manoeuvre which he had performed many times before and when the entire activity would have occupied a matter of seconds only. There would of necessity have to be some element of reconstruction. 62 In that regard, Dr Grigg in his evidence said: "WITNESS GRIGG: Yes. I guess I've got some reservations about the degree to which the plaintiff put, could say some of, of those things so confidently as to the circumstances, precise circumstances. But in the way it was described, I agree." (T178.10) The observation of Dr Grigg reflects considerable common sense and I agree with it. 63 Whichever sequence of events occurred, they were each causally related to the means of access to the driver's cabin on the Cat 785B truck. As to whether that involved a breach of duty on the part of Roche is, of course, a different question. 64 Following his fall, the plaintiff felt what he described as agonising pain in his left hip and lower back. He was taken by ambulance and helicopter to the John Hunter Hospital. X-rays were taken there and he was discharged on the following day. 65 When the plaintiff was discharged, he was on crutches and was told to rest. The plaintiff found the pain to be so intense that he could not sleep in a bed but only in a recliner chair. 66 His treating orthopaedic surgeon was Dr Tarrant. Although plain x-rays were initially unremarkable, subsequent x-rays of his pelvis showed fractures of the superior and inferior pubic ramus which were undisplaced. He had what Dr Tarrant described as a "sprung " SI joint. Bone scans showed a focal increase on the right L5/S1 pars indicating a pars fracture with mild increased uptake in the spinous processes from the L1-L4 consistent with tendonitis at those levels. 67 The plaintiff attempted to return to work driving a truck in July 2003. He only worked for one shift and found that his hip and back pain became worse. He continued to experience severe lower back pain and pain in the back of his left hip as well as pain in both groins. He found that if he were on his feet for any length of time, the pain got worse and sitting for any length of time was very uncomfortable. The plaintiff was having a great deal of trouble sleeping. 68 In September 2003 the plaintiff made another attempt to return to work. He tried working for a couple of hours a day for three or four days driving a Komatsu 830 dump truck. The plaintiff found that he could not put up with the pain which was made worse by any sort of movement and sitting for long periods. 69 The plaintiff underwent a pain management program conducted by Judith Dwyer, a psychologist. These sessions were conducted at his home. She taught the plaintiff techniques such as relaxation and deep breathing which helped. Nevertheless, he continued to experience pain particularly if he were sitting or standing for long periods. 70 By November 2004 the plaintiff's financial position had deteriorated. He was having trouble making ends meet and keeping up rent payments on the house at Muswellbrook. The plaintiff's wife worked to assist the family. The plaintiff settled his workers compensation rights against Damstra in the sum of $165,000. In December 2004 the family moved back to Queensland where they now live. The plaintiff's wife has continued to work to assist the family. 71 In June 2006 the plaintiff made another attempt to get back to work. He was driving a scraper for Alzino Contractors in Coboolture. He was only able to work for about two hours when he was forced to stop because of pain. Since about that time he has been in receipt of a disability support pension. 72 The plaintiff has not worked since the date of the accident. I will refer to other aspects of the plaintiff's condition when assessing his entitlement to damages. 73 Roche used regularly prepare risk assessments and hazard studies in relation to its activities at Wambo. One such risk assessment/hazard study was completed on 20 August 2001 (exhibit N). Included in the plant studied was the Cat 785B. While no person from Roche gave evidence such as would enable the risk assessment/hazard study document to be fully understood, most of the matters in it are readily understandable although their ranking as a risk is not clear. 74 One risk identified in that study was:
"Hazard/Risk Action to Remove Manage Control Hazard/Risk FALLING CAUSED BY: Training and instruction program so people maintain a three point contact while on the ladder. Carrying items up ladders Operators and tradesmen to use shoulder bags to carry items while on the ladder. Use a haul line as required to lift difficult and heavy loads."
75 A further risk assessment/hazard study, dated 17 April 2003 again considered the Cat 785B (exhibit O). In this study, against the risk of "Falling caused by carrying items up ladders", the following additional points were added to the previous "Action to Remove Manage Control Hazard/Risk": "Address handrail support points Modify handrails to prevent people using non-standard grab points." 76 Against the "Hazard/Risk" which was described as "risk from climbing and ascending ladders in the dark" the following was included under the heading "Action to Remove Manage Control Hazard/Risk": "Functioning ladder light on 785B/C trucks. Permanent artificial lighting on go-line. Install stairways on 785's." 77 Following the plaintiff's accident, Roche prepared a "Significant Incident" report dated 24 April 2003 (exhibit M). The following was recorded therein: "Possible Contributing Factors The right hand was holding the catwalk upright located to the right of the access ladder handrail making it difficult to regain balance once lost. No structure in place to aid in preventing falling on the right side of the access ladder.
Remedial Action/Lessons Learned: Toolbox talk held describing the manner in which the operator ascended the ladder with emphasis on his use of the catwalk upright. Caterpillar 785's to be fitted with ladder handrail modifications, preventing people from using non-standard handrails such as the catwalk upright, and maintain a person's centre of gravity within the line of the ladder." 78 Before giving evidence, the two engineering experts Dr Grigg and Mr Underwood conferred on 9 July 2010 and agreed on a number of issues. They agreed that the purchase cost of a Cat 785C dump truck (of similar capacity but a later model to the Cat 785B) was then about $2.6 million. They also agreed that the likely cost of retrofitting a Cat 785B with a transverse step access system, such as was shown on larger dump trucks, was about $22,000 in 2008. Both experts agreed that such costs would have been less in 2002/2003 but they were not able to say by how much. 79 Both experts agreed that if such a transverse step access system had been used on the Cat 785B, it would have greatly reduced the risk of the driver overbalancing and falling. 80 Exhibit 12 comprised a list of major plant owned by the defendant as of April 2003. It showed that as of that date, Roche owned in excess of 500 pieces of plant of which 42 were Cat 785B dump trucks.
Duty of Care 81 There was no agreement between the parties as to the nature of the duty of care and its content. The plaintiff submitted that in line with the statement of principle of Brennan J in Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16 at 47 - 48, Roche's obligation was "to use reasonable care to avoid unnecessary risks of injury to the plaintiff and to minimise other risks of injury". The plaintiff accepted that Roche's duty to the plaintiff was not co-extensive with that of an employer to an employee such as was the relationship between Damstra and the plaintiff. 82 Roche submitted that the relationship between it and the plaintiff was akin to that of a principal to an independent contractor. This was because the plaintiff was a highly qualified and experienced driver of specialised equipment. As such Roche submitted that the plaintiff was a competent and independent worker who did not require any instruction, supervision, training or control. In those circumstances, Roche denied that it owed him any duty of care and certainly not the duty which he particularised. 83 Roche did not accept that the relationship between it and the plaintiff was of the kind referred to in Stevens v Brodribb so as to give rise to the duty of care there recognised. Roche relied upon the recent decisions of Leighton Contractors Pty Limited v Fox, Calliden Insurance Limited v Fox [2009] HCA 35, (2009) 240 CLR 1, Pacific Steel Constructions Pty Limited v Barahona; Jigsaw Property Group Pty Limited v Barahona [2009] NSWCA 406 and Unilever Australia Limited v Pahi & Anor; Swire Cold Storage Pty Limited v Pahi & Anor [2010] NSWCA 149 to support its approach. 84 I do not accept Roche's submission that it did not owe a duty of care to the plaintiff. I am of the opinion that the duty as put forward by the plaintiff, taken as it is from the observations of Brennan J in Brodribb, correctly states the duty owed by Roche to the plaintiff. 85 The real issue in this matter is the articulation of the content of that duty. In that regard the content of the duty is to be determined by reference to the facts of this case in particular those relating to the relationship between the plaintiff and Roche. 86 As the facts I have found make clear, the relationship between Roche and the plaintiff whilst not being co-extensive with that of an employer and employee, was significantly closer than that between a principal and independent contractor. 87 Roche was in charge of the Wambo Mine. This imposed on Roche obligations under the Coalmines Regulations Act 1982. Regulation 37 set out Roche's obligations and specified that it should have full charge and control of all persons employed at the mine and all operations at the mine and should ensure that the machinery, apparatus and equipment in use at the mine was maintained in a safe working condition. It was to ensure that all officials at the mine were in possession of such information as was necessary to enable them to ensure that all operations at the mine were carried out in a safe manner. Section 37 imposed on Roche a number of other safety based obligations. 88 Apart from obligations under the regulation, Roche was in fact in charge of the mine and those persons working at it, including the plaintiff. Roche owned the plant which he was using. Roche set up the system of work including the parking of plant. Roche provided supervision by means of its safety officer and supervisors. The extent of that supervision is clear from the letter to the District Inspector of Mines of 5 May 2003 (exhibit P) and from the content of the regular risk assessment/hazard studies which were carried out in relation to the operation of various pieces of plant including the Cat 785B dump truck (exhibits N and O). While some Damstra personnel appear to have been present on site, their function was never identified and so far as the plaintiff was concerned they appear to have had little or no supervisory role. This was undertaken entirely by Roche. 89 Roche acknowledged that the function performed by Damstra was that of a "labour hire resource to man weekend shifts and to top up crews on Mondays and Fridays" (exhibit P). In that labour hire context, and because the place of work was a mine, Roche assumed the responsibility of supervising the plaintiff and of providing him with the specialist equipment which he had to use. 90 Against that background, the relationship between Roche and the plaintiff was considerably closer than that between a principal and an independent contractor, or that between an entrepreneur exercising a general supervisory role over a number of independent contractors such as Brennan J referred to in Brodribb at 47-48 where his Honour said: "The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power … But once the … operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. … the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work … within his area of responsibility." 91 The operation of this mine was never in the hands of "independent contractors" and certainly was never in the hands of Damstra or the plaintiff and the other plant operators. It was fully and closely controlled by Roche. 92 The distinction between the circumstances of this case and those in Leighton v Fox is readily apparent. In Leighton v Fox their Honours said at [59] that provided the head contractor engaged a competent contractor and placed the activity of concrete pumping in the contractor's hands, the head contractor was not subject to an ongoing general law obligation with respect to the safety of the work methods employed by the contractor or those with whom the subcontractor subcontracted. Here the relevant activity had not been placed in the hands of either Damstra or plant operators employed by Damstra such as the plaintiff. 93 The same distinction was drawn by the Court of Appeal in Pacific Steel Constructions at [87] where the Court said: "The basic principle remains, however, that the principal has no duty to retain control of the system of work if it is reasonable to engage the services of an independent contractor who is competent to control the system of work without supervision, and the activity has been organised and has been placed in the hands of the independent contractor." 94 As previously indicated, that was not the situation which prevailed at the Wambo Mine. Roche had clearly assumed the responsibility of supervising the plaintiff thereby providing the foundation for the relevant duty of care. 95 There is nothing in the more recent decision of Unilever Australia Limited v Pahi which would lead to a different result. On the contrary, by way of general summary, Allsop P said at [3]: "That said, the common law does not operate in a fashion that ignores substance in a preference for legal form. Here, ESP Techforce Pty Limited ("ESP") was the employer. It was responsible for and carried out direct supervision. There was nothing to lead to any conclusion or apprehension in either Swire or Streets that ESP was not willing or able to understand, undertake or fulfil its duties to its employees who were carrying out work within the overall context of Swire's operations for the commercial interests of Streets. The substance was that ESP, alone, carried the duty of care owed to the respondent." 96 A significant factual difference between the Unilever Australia case and this case is that in the Unilever case ESP, the employer, had a fulltime on-site supervisor who designed, implemented and monitored the workflow system undertaken by ESP employees. There was no such presence in this case. 97 Accordingly, the content of the duty owed by Roche to the plaintiff was to exercise reasonable care in providing him with a safe system of work and with safe plant with which to carry out his work.
Breach of Duty 98 Breach of duty is now governed by the provisions of s5B and s5C of the Civil Liability Act 2002 (CLA). Those sections provide: "5B(1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. 5B(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5(C) In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." 99 Applying those sections I am satisfied that the risk of a driver falling while using the rigid ladder to gain access to his cabin was foreseeable in the s5B(1)(a) sense. I am also satisfied that the risk was not insignificant in that there was a real likelihood of it occurring and if it did occur, the consequences for the driver would be serious in that the potential fall distance was in excess of 2.5 metres. 100 From the assessments by Mr Underwood and Dr Grigg, it seems clear having regard to the Australian Standard and the stringent safety requirements which applied to the operation of mines in NSW at the time, that Roche ought to have known about this risk. The stepladder above the bumper bar was too steep and the handrails on it were inadequate contrary to AS 1657 (see [31-33] hereof). The accident which occurred was of the kind which the standard was designed to prevent. The guidelines issued by the Department of Mineral Resources for surface mobile equipment used in mines required compliance with the Australian Standard (exhibit H, pp 97-122). 101 Such an assessment is not based on hindsight reasoning. The expert evidence was unanimous in its assessment that there was a design flaw in the access to the driver's cabin on the Cat 785B. The upright of the guardrail (or stanchion) was not well placed to be used as a handhold. The horizontal bar beneath the window could not easily be reached with the left hand. This deficiency was significant in that it occurred at what the experts described as the transition point where the driver was required to move laterally from the ladder to the access platform. The danger of falling was increased if any load being carried up the ladder was to shift while the driver was negotiating this transition point. 102 As Dr Grigg pointed out, the steepness of the ladder meant that there was a greater requirement for the driver to use his hands and arms to pull himself upwards towards the access platform. This greatly increased the risk of a fall if (as occurred) a problem arose in transferring a handgrip from the rails on each side of the ladder to either the upright of the guardrail or the horizontal bar beneath the driver's window. 103 Dr Grigg summarised the situation in his second report as follows: "I agree with Mr Underwood that the Cat 785B dump truck has an inherent design weakness and I believe that the requirement to move sideways from the top of the ladder to the access platform in a region where the handrails are not continuous involves a significant risk of a person falling. While the risk of overbalancing and falling might be exacerbated by a movement of a slung load, it is normal practice for drivers of such machines to carry such items when mounting and dismounting and the access system should cater for this probability." (See [40] hereof.) 104 It is clear from the expert opinion that had Roche turned its corporate mind to the risks confronting drivers accessing the Cat 785B, it would have concluded that it was reasonably foreseeable that a driver might fall and that this risk was real in the sense that it was not insignificant. 105 While the above analysis is sufficient to satisfy s5B(1) CLA it can be inferred that Roche was in fact aware of the risk. 106 There was no unequivocal evidence that Roche had actual knowledge of the risk to drivers of the Cat 785B. However, the emphasis in its risk assessment/hazard study of 20 August 2001 (exhibit N) on drivers maintaining a three point contact while on a ladder suggests actual knowledge. There was also a suggestion in the evidence of Mr Patterson (T.82.8 - .36) that a problem with the handrails on the ladder on the right front of the Cat 785B had been recognised before the accident. 107 The next question is whether a reasonable person in the position of Roche would have taken precautions against the foreseeable risk and if so what those precautions should have been. Roche submitted that in the absence of any previous injuries of this kind on the Cat 785B in the preceding three and a half years (exhibit 11), its response of requiring drivers to maintain a three point contact when using the ladder was appropriate. Roche submitted that nothing more was required. It submitted that the two alternatives relied upon by the plaintiff were based on hindsight and could not as a matter of practicality be implemented. 108 Roche submitted that extending the handrails beyond the top of the ladder had not been considered by either expert and might well create further safety issues regarding access to the platform. 109 It submitted that the retrofitting of a transverse step access system would involve substantial expense. While such transverse stairways were standard on larger dump trucks, they were not fitted on the Cat 785B or on the next Caterpillar dump truck in the series which was slightly larger. By inference Caterpillar as the manufacturer, had not considered the installation of a transverse stairway to be appropriate for its 785B model and had manufactured it as a fit for purpose and safe item of plant. 110 Roche submitted that while it was possible to retrofit a transverse stairway on the Cat 785B, as suggested by Dr Grigg, this conclusion was arrived at by that expert with the benefit of hindsight. It submitted that he had taken into account that the plaintiff had fallen in reaching that conclusion. It submitted that Dr Grigg had failed to give adequate weight to the fact that the 785B model had been in operation for a number of years before the plaintiff's accident without any attempt to change the design of the ladder system by Caterpillar. 111 Although his pleading referred to the extension of handrails beyond the top of the ladder as an alternative, the plaintiff did not press this in submissions. His approach was reasonable in that neither expert had expressed any opinion as to the feasibility or adequacy of such an alteration. An examination of the photographs of the Cat 785B suggests that such an alternative may have created other safety problems. Nevertheless, it was an alternative suggested by Roche in its post accident reports (exhibits M and O). 112 The response to the foreseeable risk of injury relied upon by the plaintiff was the retrofitting of a transverse step access system. While a cost of approximately $20,000 may appear substantial, it is relatively minor when considered in the context of a piece of equipment costing approximately $2.6 million. This is despite the fact that such a modification would have had to have been made to 42 dump trucks at an approximate total cost of $850,000. While such an amount on its face appears substantial, it has to be looked at against the cost of each dump truck and the fact that Roche was a major participant in the Australian mining industry in 2003 with over 500 pieces of plant which included 42 Cat 785B dump trucks. 113 Significantly, Roche did not submit in terms that the carrying out of such a retrofit was unreasonably expensive. One can well understand why such a submission was not made. In the risk assessment/hazard study of 17 April 2003 one of the recommendations was that stairways be installed on the Cat 785B's (exhibit O). I infer that such a recommendation would not have been made if the author or authors had considered it to be too expensive and therefore an excessive response to the foreseeable risk. 114 The real issue is whether, looking at the adequacy of Roche's response to the foreseeable risk from a prospective point of view, i.e. given Roche's state of knowledge at the time of the accident rather than by way of hindsight, a reasonable person in Roche's position would have responded by retrofitting transverse stairways to a Cat 785B. 115 I have concluded that a reasonable person in the position of Roche would have responded to the risk of injury to drivers of the Cat 785B by retrofitting a transverse stairway to those vehicles. 116 The risk of injury was readily foreseeable and arose from a design fault in the access to the driver's cabin. In such circumstances it was not an adequate response by the entity providing the plant and controlling the system of work to direct drivers to take special care. This is all that Roche's insistence on drivers maintaining a three point contact while on ladders amounted to. More was required. 117 It is trite law that in devising a safe system of work one has to take into account inadvertence or miscalculation on the part of those who have to implement that system. This is so when it is known, or ought to be known, by the party designing the system of work that the system as designed involves a real risk of injury (McLean v Tedman & Anor (1984) 155 CLR 307 at 311, 313). This is so when the risk involves a fall from a distance in excess of two metres where serious injury and/or death could result. 118 There was no issue between the parties as to causation. The expert evidence was unanimous that the fitting of a transverse stairway would have significantly reduced the risk of injury. Similarly, there was no issue that it was the defect in the access to the driver's cabin on the Cat 785B which caused this accident. Factual causation under s5E CLA was established.
Contributory Negligence 119 Roche submitted that the plaintiff's damages should be reduced because he had failed to take reasonable care for his own safety. It submitted that the relevant failure was not maintaining three points of contact while ascending the ladder. 120 I am not prepared to find contributory negligence against the plaintiff. This is one of those cases where there was a fundamental defect in the system of work. There were not adequate support points to enable the plaintiff to maintain three points of contact, particularly when he had to stretch with his left hand to reach the horizontal bar beneath the driver's window. Inherent in the system of work was the risk that a driver would not be able to adequately support himself while climbing the ladder and would fall. The fact that this occurred was not the plaintiff's fault, but was implicit in the system of work which he was trying to implement. 121 The plaintiff is also assisted by the line of authority in such cases as Commissioner of Railways v Ruprecht (1979) 142 CLR 563 and McLean v Tedman where inadvertence or inattention which resulted from familiarity and repetition or preoccupation with matters in hand and a need for concentration upon those matters, did not amount to contributory negligence. 122 The part played by the movement of the plaintiff's pack from his shoulder is also of importance. In using a shoulder bag of this kind the plaintiff was complying with a direction of Roche (exhibit N). The movement of the shoulder bag appears to have exacerbated the inherent risk in the system of work. That combination of events was not due to any fault on the plaintiff's part. 123 Applying the objective test set out in s5R CLA, i.e. that of a reasonable person in the position of the plaintiff, Roche has failed to establish contributory negligence on the part of the plaintiff.
Liability of Damstra 124 In its defence Roche relies upon s151Z(2) of the Workers Compensation Act 1987 (WCA). In order to apply that section, it is necessary to assess the notional liability of Damstra as the plaintiff's employer, even though Damstra has not been sued in the proceedings. 125 Both parties accepted that as the plaintiff's employer, there was liability on the part of Damstra. Roche submitted that the extent of that liability was 25 percent. The plaintiff submitted that the appropriate apportionment of the liability of Damstra was 20 percent. Accordingly, for the purposes of the s151Z(2) calculation, both parties accepted that the contribution to the plaintiff's injuries by Roche was significantly greater than that of Damstra. That was an appropriate approach and I agree with it. 126 Damstra's liability arises essentially from the non-delegable duty which it owed to the plaintiff to take reasonable care for his safety. It could not delegate that duty to Roche. Apart from that obligation at law, Damstra appears to have played almost no part in supervising the plaintiff or his work. 127 There was no evidence of any supervision by Damstra of the plaintiff at Wambo. Damstra did not provide the dump truck. Damstra did not set up or implement the system of work. Damstra did not have any particular expertise in running an open cut coalmine. Damstra made no risk assessments. As a labour hire company Damstra had placed the plaintiff almost entirely under the control of Roche. In those circumstances, I consider that 20 percent best represents an appropriate apportionment of its liability to the plaintiff had it been sued by him.
Damages 128 I have already briefly reviewed the plaintiff's history, both before and after the accident ([6-13], [64-72]). The plaintiff was almost 39 when he was injured. He is now 46. He has suffered the effects of this accident for more than seven years. 129 Before the accident the plaintiff was fit and well. Although he suffered a shoulder injury in 1991, this had not caused him problems since the operation in 1994 and had not restricted his capacity to work. Roche did not submit that the plaintiff's shoulder injury had any effect on his ability to work following the accident. 130 Some seven months following the accident the plaintiff commenced to complain of pain in his neck and limitation of movement. X-rays and other investigations failed to disclose any cause for these complaints. Because the plaintiff did not complain of any neck problems at the time of the accident nor in the months immediately following it, I am not prepared to find that his neck problems are related to the accident. In any event, these complaints which have continued over the years are relatively minor when compared with his pelvic, sacroiliac and low back problems. 131 The following is the effect of the medical evidence in relation to the plaintiff. 132 When he last saw Dr Tarrant on 24 July 2003 he was complaining of numbness in his left lower leg, groin pain and low back pain. His biggest symptom was the low back pain. Dr Tarrant noted that the plaintiff's symptoms appeared to have increased. 133 The plaintiff was seen by Dr Davies, general surgeon, on behalf of the workers compensation insurer in August 2003 and May 2004. As of May 2004 the plaintiff complained that his low back pain had deteriorated. There were substantial restrictions in lumbar spinal movements. X-rays showed degenerative changes at the L5/S1 facet joints and a bone scan showed multiple areas of increased tracer uptake suggestive of bilateral sacroiliac joint strain or post-traumatic sacroiliitis. Dr Davies thought that the bone scan findings were consistent with the plaintiff's ongoing complaints of pain around the lower back and sacroiliac joint region. Dr Davies observed what he described as "a number of behavioural signs" during the May consultation. By this I understand him to mean restrictions which were not supported by the clinical evidence and which were indicative of psychological factors contributing to the plaintiff's complaints. Dr Davies thought these psychological factors might not be of a conscious nature. He attributed the plaintiff's disabilities to the fall from the truck on 14 April 2003. 134 Dr Millons, a general and orthopaedic surgeon, saw the plaintiff in August 2003 and June 2004 on behalf of the workers compensation insurer. Based on his examination of the plaintiff in June 2004, Dr Millons thought that he was no better and probably worse than when seen in August 2003. The plaintiff complained of continual pain in his lower back which kept him awake at night. The back pain spread up into the middle of the back and down into the buttocks, but did not radiate into either lower limb. Dr Millons concluded that the plaintiff had some evidence of a mechanical problem in the pelvic area and perhaps the lower lumbar region which might well be accounting for his ongoing symptoms. Dr Millons thought that there was nothing more which could be done for him apart from encouraging him to keep as active as he could. He noted that there was a non-organic element and introspection compounding the plaintiff's complaints. Generally speaking, Dr Millons thought the plaintiff had become quite depressed about his condition. 135 Professor Ghabrial, orthopaedic surgeon, saw the plaintiff for medico-legal purposes on 28 May 2004. In relation to the lower back and pelvis, he thought that the plaintiff's problem related to the right pars interarticularis fracture, pelvic fractures including diastasis of the sacroiliac joints and incomplete healing fractures of the left superior and inferior pubic rami. He thought that this diagnosis was confirmed by the bone scan performed on 21 May 2004. 136 Professor Ghabrial concluded that it was highly likely that the plaintiff's present disabilities would continue and that he was not fit for activities involving any lifting over 10 kgs, excessive bending and excessive twisting. Professor Ghabrial could not see the plaintiff going back to his previous employment as a plant operator, nor any employment involving such activities. 137 The plaintiff's solicitors referred him to Dr Eaton, consultant occupational physician, on 24 May 2006. Dr Eaton expressed his conclusions as follows: "In my opinion Mr Jeffs' injuries have now stabilised. He continues to experience pain involving the lower back and pelvis with referred pain to the proximal part of the left thigh. The symptoms are consistent with the aforementioned pathology. Mr Jeffs reported that, as a result of lower back and pelvic pain, he is unable to sit or stand for prolonged periods. In addition he is unable to bend repetitively, bend for sustained periods or undertake heavy manual handling. The history Mr Jeffs provided in relation to his function appears to be consistent with the objectively identified pathology. In my opinion the functional consequences of the injury which occurred on 14 April 2003 prevent Mr Jeffs from returning to work as a plant operator, or working within the coal industry. His function is unlikely to improve in the foreseeable future." 138 In relation to employment generally Dr Eaton said: "Mr Jeffs' education, training and vocational experience is limited. He is physically unfit to undertake moderate to heavy work. I consider that he is unlikely ever to engage in work in any position for which he has appropriate education, training or experience. Mr Jeffs could possibly return to work in alternative employment of a predominately sedentary to light nature which allowed him to regularly vary his posture between sitting, standing and walking. In order to do so, I consider he would require further vocational training and extensive vocational rehabilitation. The results of such rehabilitation are uncertain. In my opinion, the probability of Mr Jeffs successfully returning to work after such rehabilitation is greater than 10 percent but less than 50 percent." 139 In relation to the plaintiff's capacity, Dr Eaton concluded: "Mr Jeffs is self sufficient with regard to self care activities of daily living. As a result of lower back and pelvic pain he is unable to sit, stand or walk for more than 15 to 20 minutes consecutively. He regularly varies his posture as a result. Mr Jeffs is able to drive a motor vehicle for 20 to 30 minutes consecutively. Mr Jeffs stated that he is able to undertake light domestic activities such as surface cleaning, laundry and shopping, but is unable to undertake activities which involve bending or pushing such as bed making and gardening." 140 The plaintiff was seen by Dr Boys, orthopaedic surgeon, on behalf of Roche in January and November 2007. Dr Boys diagnosed the plaintiff as having a chronic pain syndrome with complaints of non-specific and diffuse lumbar sacroiliac and pelvic pain. While Dr Boys accepted there was a physical basis for the plaintiff's complaints, he qualified this opinion as follows: "Mr Jeffs' complaints of chronic pain occur in the context of ongoing treatment for depression. There is evidence of magnified illness behaviour with inappropriate clinical signs evident. Mr Jeffs' perceptions of disability would appear to be disproportionate to objective evidence of physical impairment. It would be my opinion that this gentleman's perceived working incapacities reflect primarily psychological rather than physical effects of injury. It is reasonable to believe, however, that Mr Jeffs does experience mechanical low back strain symptoms in the course of protracted sitting which would limit employment as a plant operator/truck driver. The effects of physical injury, however, would not render this gentleman totally incapacitated for alternative employment which would allow Mr Jeffs the ability to move, stand or sit as comfort dictates." 141 The plaintiff was seen by a clinical psychologist specialising in chronic pain management, Dr Toby Newton-John, in February 2008. This consultation was arranged by his solicitors. Dr Newton-John concluded: "Mr Jeffs is now some four and a half years post-injury with increasing levels of disability and distress. He is suffering from the typical constellation of chronic pain problems, including a sense of helplessness regarding his pain management, a sense of uselessness when it comes to participating in family life and a lack of control over his life situation. He has a depressive illness which his antidepressant medication does not seem to be treating effectively. He has had little treatment in the past several years and would benefit from contact with a multi-disciplinary pain clinic and possibly a psychiatrist in order to address his various needs." 142 The plaintiff saw Dr Chung, psychiatrist, at the request of Roche in June 2010. Dr Chung expressed his conclusions as follows: "Mr Jeffs presented with symptoms consistent with a chronic pain disorder secondary to a general medical condition. This is secondary to the injury he had sustained in April 2003. These injuries have been confirmed on MRI scan and on a bone scan. Mr Jeffs has been told that he will not be able to return to work due to these injuries. Mr Jeffs did not fulfil the diagnostic criteria for depression during this interview as Mr Jeffs does not feel depressed on most days and subjectively he denied anhedonia. His sad mood and tearfulness would be triggered by his thoughts about his disability and inability to return to work."
Dr Chung also concluded that the plaintiff did not fulfil the diagnostic criteria for an adjustment disorder. 143 From the age of 15 the plaintiff had regularly played the drums in a country rock band. After his return to Queensland, the plaintiff resumed playing the drums in a band. This usually involved performing once a week for four hours. The four hour period would be broken up into 45 minute segments with a 15 minute rest. The plaintiff said he was forced to give up playing in the band due to pain in early 2007. Between 2006 and 2008 the plaintiff coached a junior rugby league team in which his son played. 144 The plaintiff takes the following medications: Luvox 100 mgs nightly (an antidepressant) Somac 40 mgs daily Panadeine Forte Tramadol (the plaintiff does not use this medication often as he is concerned about dependency issues). 145 The plaintiff continues to see his general practitioner but only on an intermittent basis when symptomatology is exacerbated. Otherwise the plaintiff does not receive any regular medical treatment. 146 At the time of the trial the plaintiff's complaints were: continuous pain in the lower back in a band from his beltline to his tailbone. On occasions he has aching in the buttocks and legs above the knees, not directly related to any activity. He said that there is pain in the groins on an almost continuous basis. 147 Walking provokes pain. After 100 - 150 metres the pain increases. After sitting for half an hour pain increases causing the plaintiff to move around and stand which temporarily eases the pain. The plaintiff said that he is able to stand for about 20 minutes before pain starts to increase. Bending increases pain. 148 The plaintiff said that pain continues to disturb his sleep. Some nights he is able to sleep but other nights he does not sleep for more than two or three hours. He said that if he does sleep through the night, he tends to wake up with aches and pains so that it takes him a long time to mobilise in the morning. The plaintiff has a regime of stretching exercises to assist in pain control and to maintain a level of fitness. 149 In relation to leisure activities, the plaintiff had to give up playing in a band in early 2007 because of increasing pain. He is still able to fish from a bank or jetty which he finds very relaxing. He said that he is only able to take his boat out two or three times a year to fish because being in the boat for any length of time increases his low back pain. As indicated, he was forced to give up coaching his son's rugby league team at the end of 2008. He has continued to provide services to that junior rugby league club on a voluntary basis as vice secretary. 150 The plaintiff said that he is able to perform household duties including washing and drying the dishes, washing and hanging clothes and grocery shopping. He can do cooking and prepare meals. Whilst he used to do some vacuum cleaning this now causes pain. He does not mow or weed the lawn as he finds the movement involved in those activities increases his pain and discomfort. He performs some maintenance on the two family vehicles because he enjoys this sort of activity and because the family finances make it difficult to pay for mechanical repairs and maintenance. The plaintiff said that he is careful when performing this maintenance activity and only does as much as he can tolerate at any one time. 151 There is an undoubted discrepancy between the level of the plaintiff's complaints and the pathology which has been identified from clinical examinations carried out over the years by various medical practitioners and from radiological and other tests such as MRI scans and bone scans. Interestingly, all of the doctors accept that there is a basis for the plaintiff's complaints but it is the level of complaint which some cannot explain. It is for that reason that the doctors reporting on the plaintiff's physical complaints have referred to a psychological element being in play. It should also be noted that Dr Boys, at least implicitly, suggested some exaggeration on the plaintiff's part. 152 In cases such as this where there is a discrepancy between the physical findings and the level of complaint, it can be difficult to determine the true nature of a plaintiff's disability. Two factors have greatly assisted me in resolving that issue. 153 The first is the plaintiff's presentation. I found him to be a generally truthful witness and a person who was doing his best to assist the Court. When he was giving his evidence he did appear to be in real discomfort after sitting for approximately half an hour and he was consistent in standing and sitting in the witness box to relieve what appeared to be genuine pain. 154 Most helpfully, however, the defendant tendered video material (exhibits 5 and 6), which had been taken of the plaintiff in October 2009 and June 2010. 155 The October 2009 video (exhibit 5) showed the plaintiff getting in and out of a motor vehicle, visiting a shopping centre, carrying a long pole like object and placing it in the rear of a car, squatting next to a small tin boat and making some adjustments either to the boat trailer or the boat, and filling a jerry can with petrol at a petrol station. When first seen in the video, the plaintiff was walking without apparent difficulty. Halfway through the video while still at the shopping centre, the plaintiff commenced to limp. By the time he arrived home, the limp was quite pronounced. 156 This, of course, is fully consistent with the plaintiff's evidence in that regard. What is also clear from the video is that the plaintiff is restricted in his back movements. Activities such as getting in and out of the car and making an adjustment to either the boat or the trailer were not performed in a fluid way but somewhat awkwardly. The video does indicate, however, that the plaintiff has over time adapted his movements to accommodate, as best he can, his low back disability. 157 The video taken in June 2010 was equally useful. On a number of occasions the plaintiff was shown walking up his driveway pushing a wheely bin. On all those occasions, he displayed an obvious limp. 158 The major activity which the plaintiff was performing when the video was taken, was changing the brake pads on a Holden Commodore station wagon. In the course of carrying out this activity he used a small hydraulic jack to remove one of the wheels. Most of the activity was carried out by the plaintiff from a sitting position. It was apparent from the video that the posture adopted by the plaintiff was a somewhat unusual one for carrying out this activity and not one which a person without a back injury would be expected to adopt and maintain. It was clear to me that in carrying out this activity, that the plaintiff was protecting his back and that he displayed limitations of movement of his low back. As with the earlier video, it was equally clear that after more than seven years the plaintiff has been able to substantially adjust his movements to minimise the stress which is imposed on his low back. The video showed a person who was not in any obvious pain but who was clearly disabled and being careful in relation to his movements. 159 It is against that evidentiary background that the plaintiff's damages are to be assessed. This assessment is to be made in accordance with the CLA and then adjusted to have regard to s151Z(2) WCA.
Non-economic loss 160 The competing positions of the parties were a claim for 35 percent of a most extreme case by the plaintiff and a 25 percent assessment by the defendant. Having regard to the plaintiff's age, the chronicity of his symptoms and their effect on him physically and psychologically, it seems to me that the assessment by the plaintiff more accurately reflects his entitlement to damages for non-economic loss. That having been said, one also needs to take into account that the plaintiff appears to have significantly adapted his lifestyle over the last seven years to accommodate his disability. In those circumstances, I would assess the plaintiff's entitlement to non-economic loss at 33 percent of a most extreme case, i.e. $156,255.00.
Past out-of-pocket expenses 161 These have been agreed between the parties as follows: Workers compensation pay back $ 25,969.00 Further payments by plaintiff $ 443.80 $ 26,412.80
Future out-of-pocket expenses 162 These have been agreed by the parties at $10,000.00.
Past care 163 The plaintiff has received no paid assistance in the past. It was agreed between the parties that although care has been provided to the plaintiff gratuitously in the past, the level of care so provided has not been sufficient to meet the threshold requirements of s15 CLA, i.e. 6 hours per week for 6 months. Accordingly, the plaintiff has not made a claim for such damages.
Future care/domestic assistance 164 As with the past, the plaintiff accepts that if he does receive gratuitous assistance in the future, it is unlikely to exceed the threshold provided by the CLA. The parties did, however, agree that there were activities which the plaintiff would be unable to perform in the future for which he would have to pay. This comprised matters such as house maintenance, including window cleaning and repairs. The parties agreed that this potential liability would be best met by allowing one hour per week of paid care at $35 per hour for the next 39 years, i.e. $28,336.00. In that regard, it was agreed by the parties that at age 46 the plaintiff's life expectancy was 39 years.
Fox v Wood 165 The parties agreed that the amount paid in tax in respect of workers compensation payments was $9,097.00.
Past economic loss 166 There was no agreement on this part of the plaintiff's claim. The plaintiff's claim was based on an assumption that uninjured he would have obtained permanent employment as a coal miner and that he would have continued in such employment to age 65, which was the current retirement age for miners. The plaintiff submitted that this assumption was made out because he had been prepared to move from Queensland to obtain a higher paid job in the mining industry and it could therefore be inferred that he would have been prepared to make other moves, had this been necessary, in order to maintain his high earnings. 167 The plaintiff's claim for past economic loss was calculated on the basis of his earnings during the 18 weeks that he was employed by Damstra before the injury. This worked out at an average of $1,551 gross per week, i.e. $1,041 net. By reference to the statistics for the total earnings of all males in New South Wales between April 2003 and the date of trial, the plaintiff noted that such earnings had increased by 22 percent during that period. Applying that increase to his gross and net earnings with Damstra, a figure of $1,398 net per week was achieved. The plaintiff's claim for past economic loss was therefore based on the average between that figure and $1,041 net which he was actually earning at the time when he was injured, i.e. $1,220 net per week. The plaintiff's claim for past economic loss was $1,220 net per week for 387 weeks, i.e. $472,140. 168 The defendant did not challenge the plaintiff's figures but submitted that the plaintiff had had a residual earning capacity of at least $500 net per week during that period which he had not utilised and that his claim should be reduced accordingly. 169 The plaintiff has made a number of attempts to return to work in the mining industry but these have proved unsuccessful. The medical evidence is unanimous that he has not been fit to return to that kind of work since the accident and will not be able to do so in the future. I do not find particularly persuasive statements such as that by Dr Boys that he would not be totally incapacitated for alternative employment which would allow him the ability to move, stand or sit as comfort dictates. It is difficult to envisage in the real world any job which would meet those criteria. Accordingly, I am not persuaded that the plaintiff has had a residual earning capacity in the past. The restrictions on his employability set out by Mr Eaton are reasonable and accord with the evidence before me. 170 That, however, does not end the matter. As was conceded in submissions, it is somewhat unrealistic to base the plaintiff's loss of earning capacity on what he was earning at the time when he was injured since he was being employed as a casual at a higher rate of pay than he would be earning as a fulltime employee. It is also not without significance that Mr Patterson, who was working fulltime as a dump truck driver in the mines at the time when he gave evidence, was earning approximately $1,150 net per week. Taking those matters into account, I propose to apply a 10 percent discount to the plaintiff's claim for past economic loss. The amount which I propose to allow is $425,000.00.
Past Superannuation loss 171 The parties agreed that this was to be calculated by applying 11 percent to the figure arrived at for past loss, i.e. $46,750.
Future loss of earning capacity 172 The plaintiff based his claim for future loss of earning capacity on the same calculations which he used for past economic loss. Accordingly, his claim was put on the basis of a loss of $1,398 net per week to age 65. The plaintiff accepted that in the future he may well be able to obtain some sedentary work, perhaps on a self employed basis or a part time basis. He was prepared to concede a residual earning capacity for the future of $400 net per week. On this basis the plaintiff's claim for future loss of earning capacity was $1,000 net per week for 18.7 years, which after applying a 15 percent discount for vicissitudes would produce an amount of $545,000. 173 As with the claim for past economic loss, the defendant accepted the plaintiff's figures but submitted that a residual earning capacity of $800 net per week should be allowed. I do not accept this submission. There was no evidence before the Court of what jobs the plaintiff could perform in the future which would produce that kind of remuneration. On the contrary, the evidence adduced went no further than to suggest in a very general sense that the plaintiff might be able to be retrained into some kind of sedentary or other physically undemanding work. 174 Consistent with my approach to past economic loss, it seems to me that the start point for the plaintiff's calculations needs to be reduced by 10 percent, i.e. $1,258. Applying the residual earning capacity suggested by the plaintiff produces a figure of $858 net as the claim for continuing loss over the next 18.7 years. When one applies a 15 percent discount for vicissitudes, the resulting amount is $466,752.
Future superannuation loss 175 The parties agreed that 11 percent should be applied to the figure for future loss of earning capacity in order to calculate this amount, i.e. $51,343. 176 Accordingly, under the Civil Liability Act the plaintiff's entitlement to damages is as follows: Non economic loss $156,255.00 Past out-of-pocket expenses $ 26,412.80 Future out-of-pocket expenses $ 10,000.00 Future care/domestic assistance $ 28,336.00 Past economic loss $425,000.00 Past superannuation loss $ 46,750.00 Future loss of earning capacity $466,752.00 Future superannuation loss $ 51,343.00 Fox v Wood $ 9,097.00 Total $1,219,945.80
Section 151Z(2) Adjustment 177 I have already found that had the plaintiff brought proceedings against Damstra, its share of liability would have been 20 percent. The plaintiff's damages in an action against Damstra would have been assessed under the pre-November 2001 modified common law damages provisions of the WCA (i.e. Division 3 of Part 5). The November 2001 amendments to the WCA do not apply to coalminers (see Schedule 6, Part 18, clause 3). 178 The only relevant difference between an assessment of damages under the WCA and those under the CLA relates to the maximum amount that may be awarded for non-economic loss. The maximum available under the WCA is $256,900. The maximum under the CLA is $473,500. Accordingly, 33 percent of a most extreme case under the CLA amounts to $156,500 and 33 percent of a most extreme case under the WCA amounts to $84,777. Otherwise the calculation of damages under the two regimes is the same. 179 On the basis that Damstra's hypothetical liability as employer is 20 percent the practical effect of s151Z(2) in this case is that the damages recoverable by the plaintiff from the defendant are to be reduced by 20 percent of the difference between the amounts allowed for non-economic loss, i.e. $14,344.60. When that adjustment is carried out, the amount of the judgment to be awarded in favour of the plaintiff is $1,205,601.20.
Adjustment for payments of workers compensation 180 As the evidence made clear, following his injuries the plaintiff received payment from the workers compensation insurer of his medical expenses and of a weekly amount calculated under the Act. The workers compensation insurer settled the plaintiff's claim against it under the WCA for $165,000 in late 2004. The parties agreed that following the entry of judgment in this matter (should the plaintiff be successful) they would make arrangements to refund from the judgment to the workers compensation insurer pursuant to s151Z(1)(b) WCA the monies which it had paid pursuant to that Act.
Orders 181 The orders which I make are as follows:
(1) There will be judgment in favour of the plaintiff in the sum of $1,205,601.20.
(2) The defendant is to pay the plaintiff's costs of the proceedings. 182 Should the parties seek any special costs order over and above that which has been made, I grant leave to approach the Court on 7 days' notice so that directions can be made as to the hearing of that issue.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Jeffs
Rio Tinto Limited and Anor
(1979) 142 CLR 563
(2009) 240 CLR 1
(1984) 155 CLR 307
(1986) 160 CLR 16
Judgment for the plaintiff against Roche in the sum of $1,205,601.20. Roche was ordered to pay the plaintiff's costs. The court granted leave to approach it on seven days' notice concerning any special costs order ([181]-[182]).