Love v North Goonyella Coal Mines Pty Ltd [2017] QSC 140

TORTS - NEGLIGENCE - LABOUR HIRE AGREEMENT - where the defendant was the occupier and operator of the mine - where the plaintiff's labour was hired to the defendant - where various employees of different companies were ordered to wear the same uniform - where work was carried out pursuant to a plan devised by the defendant - where the consumables were supplied by the defendant - whether the arrangement constituted a labour hire agreement

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - where plaintiff claims damages for a neck injury suffered in the course of employment - where the injury is said to have occurred during the course of roof bolting at an underground mine - where the injury is said to have occurred under the control of the defendant - whether the scope of the duty owed by the defendant extended to the plaintiff.

TORTS - NEGLIGENCE - BREACH OF DUTY - where the plaintiff submits the defendant breached its duty of care - where the plaintiff submits that an unauthorised interference with the air supply to pneumatically operated machine involved a foreseeable risk of injury to the operators of the machine - where the plaintiff submits the defendant could have minimised the risk of interference with the air supply by implementing a tagging system - whether the failure to implement the proposed measures would have minimised the risk sufficiently to avoid the injury.

TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - where the defendants claim the plaintiff was contributorily negligent - whether the plaintiff was contributorily negligent and what apportionment should be allotted.

TORTS - NEGLIGENCE - CAUSATION - where the defendant argued the cause of the machine falling which subsequently caused the injury was operator error - whether the incident, and any injury thereby sustained, was caused by operator error or the unauthorised intervention of an unidentified person.

TORTS - NEGLIGENCE - DAMAGE - CAUSATION - where the plaintiff contends that the incident caused a severe injury to the cervical spine - where the defendant submits that there were other incidents that occurred which could have caused the injury - whether subsequent events would have caused the same degree of disability - whether any significant injury was sustained by the plaintiff in the incident.

TORTS - NEGLIGENCE - DAMAGE - CAUSATION - where the defendant argues subsequent events caused an aggravation of the symptoms of pain in the neck - where the defendant submits that as a result, there ought to be a discount to any damages awarded - whether there should be a discount for the subsequent events.

Civil Liability Act 2003 (Qld)

Coal Mining Safety and Health Act 1999 (Qld) s 41, s 42,

Bourk v Power Serve P/L & Anor [2008] QCA 225, cited

Clark v CA Kruger & Sons Pty Ltd [1946] St R Qd 206, distinguished

Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21, cited

Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd [1931] HCA 53; (1931) 46 CLR 41, considered

Edwards v Hourigan and Others [1968] Qd R 202, followed

Ex parte Delhasse; In re Megevand (1878) 7 Ch D 511, cited

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, considered

Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552, followed

Kerle v BM Alliance Coal Operations Pty Limited & Ors [2016] QSC 304, distinguished

Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, followed

Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1, cited

Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313, cited

Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99, cited

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, distinguished

R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10; (1952) 85 CLR 138, cited

Rogers v Brambles [1996] QCA 437, cited

Schiliro v Peppercorn Childcare Centres Pty Ltd [2000] QCA 18; [2001] 1 Qd R 518, cited

Stephens v Hoey Fry Pty Ltd [1963] QWN 39, followed

Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, considered

Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161, cited

Sydney Water Corporation v Abramovic [2007] NSWCA 248, cited

Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234, cited

TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47, followed

TNT Worldwide Express (NZ) Ltd v Cunningham [1993] NZCA 84; [1993] 3 NZLR 681, considered

Tolhurst v Cleary Bros (Bombo) Pty Ltd [2008] NSWCA 181, cited

Walton v R [1989] HCA 9; (1989) 166 CLR 283, followed

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, distinguished

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48, followed

[1] McMEEKIN J: Marc Love claims damages for a neck injury that he claims he suffered on 12 August 2010 in the course of his employment with Wilson Mining Services Pty Limited ("Wilson Mining"). The injury is said to have occurred while he was performing roof bolting work at a mine under the control of the defendant, North Goonyella Coal Mines Pty Ltd ("North Goonyella").

[2] The case then is for damages against a non-employer but in the employment context. Mr Crow of Queens Counsel submits that in those circumstances the provisions of the Civil Liability Act 2003 (Qld) do not apply, relying on my own decision in Kerle v BMA & Ors.[1] There is no contrary submission and so I will assume my decision in Kerle was correct and adopt that approach. I have previously ordered that the Third Party proceedings involving the employer be heard separately.

[3] It is not in issue that on 12 August 2010 a roof bolting machine known as a Rambor weighing between 40 and 48 kgs fell from a height striking Mr Love on the back of his head and knocking him unconscious ("the incident"). He was wearing a helmet at the time. Nor is it in issue that at the time he was performing roof bolting work with one Clint Saliba, also an employee of Wilson Mining. Nor is it in issue that the men were working pursuant to a plan they received from men that the defendant had put over them.

(a) The scope and extent of any duty of care owed by the defendant - whether at common law or under statute;

(b) Whether the incident, and any injury thereby sustained, was caused by operator error or the unauthorised intervention of an unidentified person;

(c) If the plaintiff was contributorily negligent what apportionment should be allotted;

(d) Whether any significant injury was sustained by Mr Love in the incident and if so whether subsequent events would have caused the same degree of disability;

[5] North Goonyella was the occupier and operator of the mine. It was the "coal mine operator" for the purposes of the Coal Mining Safety and Health Act 1999 (Qld) ("CMSHA").

[6] Mr Love and Mr Saliba were essentially labourers but with experience in underground mining work. Mr Saliba was the more experienced of the two and between them considered the superior. They had been performing roof bolting work for some shifts prior to the shift on which the incident occurred - perhaps for some weeks prior.

[7] Of significance is the relationship between Mr Love and Mr Saliba on the one hand and the defendant on the other. Wilson Mining hired their labour to the defendant. The contract between Wilson Mining and the defendant was not in evidence. I will return to the point.

[8] As might be expected strict controls were exercised by North Goonyella over those who entered the mine site and over those who went underground. North Goonyella required that those working in the mine undergo a site induction. As well, when workers commenced their shift underground, they were each required to place tags on a board. Only so many workers were permitted in each panel. Each panel was controlled by a Deputy. North Goonyella employed the deputies.

[9] Wilson Mining were not the only contractors on site. Indeed there were only some five employees from that company employed at the North Goonyella mine. The total work force was in the order of 120 people.[2]

[10] To an extent the identity of the employers of each worker was evident from the uniforms worn. Wilson Mining employees had a distinctive uniform. So did at least one other contractor. The defendant's employees wore a distinctive blue shirt with a North Goonyella Coal logo.

[11] However, complicating the picture is that workers other than the defendant's direct employees also wore that blue uniform. The then (as at 2010) underground supervisor and present Site Senior Executive for the mine was a Mr Carter. He explained that he had decided to place these various employees of different companies in the same uniform, essentially for team building purposes. What relationship those employees or their employers bore to the defendant was not made clear to me.

[12] Mr Carter was himself an employee of Peabody Energy Australia Pty Ltd ("Peabody") not the defendant. Mr Carter said that North Goonyella was a subsidiary of Peabody, as were other companies. So the arrangements here have the peculiar feature that a person not employed by North Goonyella had the power to direct that the North Goonyella uniform be worn by persons not employed by North Goonyella.

[13] The roof bolting work was done pursuant to a plan devised by the defendant. The machines the men used were supplied by the defendant. The consumables they used were supplied by the defendant. They were transported to their work site by the defendant. The work location could move from shift to shift or within a shift. Mr Love and Mr Saliba were told which work site to go to by the defendant. When I refer to "the defendant" here I mean to refer to the defendant's servants or agents. So much was not in issue.

[14] The work area where the subject incident occurred was taped off with a tag to indicate Wilson Mining employees were working in that location.

[15] In earlier shifts, and so some time prior to the day in question, the men had been provided with two forms of roof bolting machines - described as a QDS and an Airtrack Bolter. Those machines removed the need to manually handle the bolter. For reasons unexplained, these machines had been taken elsewhere and the men were required to use the Rambor machine. It was not contested that if they had been supplied with the roof bolting machines the incident would have been avoided. North Goonyella determined which machines would be used.

[16] Deputies employed, at least in a broad sense, by North Goonyella checked the work being performed by Mr Love and Mr Saliba twice each shift. Mr Saliba said that the Deputy was in charge of the panel, and that "anything that goes on in that panel is his responsibility".[3] Deputies had the power to direct him to go from one task to another and did so at times. Mr Saliba was not challenged on this.

[17] Mr Love and Mr Saliba said that no person from Wilson Mining superior to them was present on the day.

[18] A document was produced by the defendant showing that a Mr Rodriguez had apparently completed a "Job Safety Map" which related to roof bolting work and bore the date of the day of the accident. To an extent it has the hallmarks of a generic document. Various boxes are ticked on the document. I think that indicates that Wilson Mining has safe operating procedures on its files in relation to those aspects mentioned. Mr Love was not asked about any instruction he may have had in relation to those procedures. Mr Rodriguez was an employee of Wilson Mining and a supervisor of the two men. There is no evidence that he had examined the work site. The two men said that they had not seen him on the day in question. Mr Saliba said he was required to complete an incident report after the incident as if he was the supervisor on the job.

[19] The Rambor machine is more accurately described as a "top mount pneumatic wet head roof bolter". It has an extendable leg which is used to push a protrusion from the base into the ground thereby stabilising the bottom of the roof bolter. It has a rotating drill rod fitted with a drill bit which penetrates the roof rock strata.

[20] The drill motor and leg extensions are both pneumatically driven and rely for their operation on a supply of compressed air. Air came from a hose suspended from the ceiling of the mine. That hose in turn was connected back to a main underground supply which was located out of sight and some distance away. The hose had been set up for their workplace by others. A water supply is necessary to assist with flushing the drill hole. Again the water supply had been set up by others. The delivery of air and water was controlled by the operator with hand controls located on a lever with a T-handle control.

[21] The drill steel fitted to the machine has a spigot at one end sitting below a square drive. The square drive fits into a square chuck of the drill head. The witnesses gave varying estimates of the length of the spigot - from three to six inches.

[22] The precise model of Rambor is not known. Dimensions vary from one model to another. An engineer, Mr McDougall provided the probable range of lengths and weights and his evidence was not challenged in this regard. The motor is at the top of the machine and makes it top heavy. Mr Saliba thought the drill rods in use at the relevant time were seven feet in length.

[23] Shortly before the incident a problem occurred with water supply to the machine. The pressure had dropped. As a result the "steel" had got blocked in mudstone bands in the seam. Mr Saliba and Mr Love went to investigate. They left the Rambor against a rib of the mine and still connected to its air supply. The steel drill bit was left hanging from the roof of the mine. The taped off area remained taped off. They discovered that the water hose had been placed against a conveyor belt, that rubbing had occurred, and the hose had sprung a leak. They fixed the problem and returned to their work station and the Rambor.

[24] On their return they set about re-positioning the machine and removing the drill bit stuck fast in the roof. Mr Saliba was the controller and Mr Love the offsider. Mr Saliba said it was necessary that he position the Rambor precisely in order to engage the drill bit hanging from the roof. Mr Saliba explained it was a very tight fit, a water curtain was in place obscuring his view, and he had little control of the top of the machine from the handle so it was necessary for Mr Love to guide the machine on to the drill steel. Mr Saliba explained the operation:

"Well, it's - it's a two-man operation with a gopher ... as I put pressure on the air leg, taking it up the steel, he's guiding it and I'm on a handle which doesn't give you a great deal of control, especially when you're up three or four metres, and, yeah, he's guiding it on to the - on to your - the steel and you - the chuck goes over the steel and as soon as you have a bit of rotation, sort of locks it in..."[4]

[25] Mr Saliba said that after he "slowly feathered the air pressure up"[5] he felt the chuck lock on to the steel. He then activated the air controls to rotate the drill steel to enable the square drives to line up. He felt them do that. He explained what happened next:

"Well, yeah, that day, like I said, you turn your rotation to get your square drives to line up and it - it just - it's like it bled the - it dropped pressure and - and the gopher came off the steel and - and I went - went to push the air back up, as in to get - get him back up there and there was no air pressure and, I said fuck. Look out, mate. She's coming down, and, yeah, when it come down it hit Marc."

So after it fell you tried to engage the air pressure to raise the leg? Correct, yeah.

It didn't respond? No. No. There was nothing there."[6]

[26] Mr Love said that after he had assisted by guiding the machine onto the steel drill bit he had stepped back from the Rambor and gone to turn away. Mr Saliba's evidence continued:

"Okay. If you can take us forward, after it came down, what happened then? Well, it'd - it'd hit Marc on the side - on the side of the head, on the helmet, and he - he - it'd knocked him unconscious briefly, you know, like sort of hey, mate, hey are you - are you all right, and he'd - he'd come around and I sort of put him in the rib - what we call wall underground, put him in the rib, so he's sort of sitting up, and he's going oh - I said you right, mate? You right, and he goes me neck, mate. Me neck. Me neck. Shit, man. I was - I - I - I panicked a little, I guess, I was - yeah, it was a pretty serious incident. I had never been in a, you know, possible - possible neck injury before. I've heard that these things can - can be bad and I - I - yeah, I've got to get help, you know, get the ambulance on the way. We have underground ambulances and I - I sort of run out in the travel road and looked up and down to see a sign for a phone, like a phone cut-through and the - at this stage I saw a guy that was, you know, not far up the roadway where our hoses were running and he - he - he had two hoses in his hand, re-joining the hoses and I said, "What the fucking hell are you doing, man?" I said, "That's our air", and he goes, "Oh." I said, "Bloke's hurt in here, hey", and he goes, "Fuck. Sorry, mate." He said, "I" - he said, "I didn't fucking know", and - and, yeah, the - I couldn't see a phone sign. I knew the closest communication from that point was the deputies' cabin, which I - from memory was about four, 500 - 500 metres away, and yeah, I - yeah, told Marc I'm going - going to go and get help, mate, and I run down to the deputies' cabin, seen - and the guys were in there, the deputy, the ERZ controllers, whatever, they were in there and - and told them what had happened. They go, "Calm down. Calm down", because I couldn't speak and I was - and then, yeah, they - we jumped in their - their vehicle, their transport and they - I believe they called the ambulance from there and, yeah, come up to where Marc was and they pretty much took over from there..."[7]

[27] The distance from the Eimco back to the place where the men were using the Rambor is not known precisely. Estimates range from 50 metres to 200 metres.

[28] Mr Saliba said that the man in the Eimco to whom he spoke was wearing a North Goonyella uniform. That person has not been identified. The Eimco was gone by the time Mr Saliba returned to see Mr Love. Mr Saliba said that the air hoses that the man held in his hands were those being used by he and Mr Love to operate the Rambor. It is not known what the man in the Eimco was doing with the air hoses. Mr Saliba provided a probable explanation. He said that the Eimcos were not fitted with a battery and if the vehicle overheated or stalled for some reason (and the road was steep in that vicinity and so overheating not unexpected) compressed air was used to restart the engine. The need to re-start was an everyday event. If one accepts Mr Saliba's account then it seems highly probable that is what occurred here.

[29] Mr Saliba plainly thought that what was out of the ordinary was that someone would use compressed air without first checking where the air hose was going. He had never done so. He considered that it was "not the done thing" and "dangerous".[8] No evidence was called to contradict him.

[30] Mr McDougall is an engineer specialising in industrial safety. He was retained by the plaintiff's solicitors to examine and report on the incident. His opinions were not contradicted by any evidence and largely were unchallenged.

[31] Mr McDougall explained that if there was a sudden uncoupling of the drill chuck and drill steel the roof bolter being top heavy would tilt and an operator in Mr Saliba's position would have limited ability to apply sufficient force to bring the roof bolter back to vertical. Anyone within the radius of the drill steel - about 3.65 meters - was then at risk of being struck. Mr McDougall described this outcome as "predictable".

[32] I am satisfied that the spigot on the drill rod engaged the drill hole or, in other words, had entered the chuck. Both Mr Love and Mr Saliba said that had occurred. Both were impressive witnesses. So long as it was in place this engagement provided lateral support.

[33] Accepting that was so Mr McDougall said that there were two possible explanations for the drill steel then uncoupling. One was operator error - that is Mr Saliba operating the controls so that the roof bolter was lowered. He could do that by "dumping" air. Mr Saliba denied doing that. Alternatively the air supply to the machine was cut.

[34] A valve was located at the point where the hose running to the Rambo fed off the main air supply underground. Mr McDougall explained that if a third party turned off that valve then there would remain sufficient air in the hose to enable the operator to raise the roof bolter as Mr Saliba said that he did. I note that Mr McDougall thought that it was all but impossible to uncouple the air hoses, as Mr Saliba said the man in the Eimco had done, without first turning off the valve. So accepting that the Eimco was there and apparently stalled as Mr Saliba thought, the trigger for the incident was a highly probable event. If Mr Saliba then rotated the chuck head as he claimed, the air available in the hose would be rapidly exhausted (according to Mr McDougall at 3000 litres/minute) and the roof bolter would drop. In short, there is an available hypothesis that fits precisely with the account that Mr Saliba gave.

[35] North Goonyella argued that the cause of the machine falling was operator error. I reject that submission. I am satisfied that the cause of the incident was the intervention by the unidentified person in the Eimco. There are several reasons that suggest that is the more probable cause.

[36] The first is that there is no evidence to support North Goonyella's theory. Secondly, Mr Saliba was an impressive witness. He appeared to give his evidence frankly. The detail of his account suggested it was highly unlikely to be a complete concoction. While he was not a sophisticated man his demeanour throughout was compelling. Thirdly, his account immediately following the incident was the same - the incident, he reported, occurred because of an interruption to the air supply by the Eimco driver.[9] Fourthly, he was then a very experienced operator and unlikely to make so fundamental a mistake.

[37] North Goonyella submits that Mr Saliba's account was contrary to the established evidence. It was not. One submission was that if the unidentified operator had bled the air hose then there would have been no air to raise the Rambor as Mr Saliba said that he did. While true, that assumes that the air hose was completely depleted of air by the operator. As Mr Saliba made clear that was not an essential pre-requisite to uncoupling the hose. Only a small amount of air needed to be retained in the hose - Mr McDougall's evidence was that very little air was needed to raise the Rambor. Another submission was that Mr Saliba agreed that the machine dropped suddenly in the course of the incident and that was consistent with a dumping of the air by the operator. Again that is so, but the submission draws a distinction between air rapidly expelled when the chuck rotated but with the air hose uncoupled (and Mr McDougall's evidence as to the rate of expulsion of air made it plain that it was very rapid indeed) and the air being "dumped". There was no reliable evidence of any such difference. As well, the submission assumes, without any foundation, that Mr Saliba is familiar with the two scenarios.

[38] Assuming that the actions of the operator caused the Rambor to fall, senior counsel for Mr Love submitted that there were four relevant causes of the accident:

(a) The intervention of the unidentified operator;

(b) The failure to tag the air hose at its source to ensure there was no interference with it without the knowledge and consent of the two men;

(c) The failure to supply an alternative machine such as had been supplied on earlier occasions;

(d) The failure to have in place a safe operating procedure to address risks associated with jammed drill rods.

(a) It is not shown that the unidentified operator was its employee and hence it is not responsible for his actions;

(b) In any case the unidentified operator was not to know that the air hoses were needed. It cannot be known when it was that he came across the air hoses (vis-à-vis the movements of the two men) or what checks he made before turning off the valve;

(c) It was not North Goonyella's responsibility to tag out the air hoses but the employer's;

(d) Roof bolters are commonly used in the mining industry, there was nothing amiss with this roof bolter, and so there was nothing unsafe about using the roof bolter instead of the alternative machines;

(e) There was no need for a safe operating procedure.

[40] The principal issue in the case is the extent of any duty owed by the mine operator to employees of a contractor engaged by the mine operator. Before turning to that issue I make two general observations.

[41] First, the argument that the unidentified Eimco operator was himself not negligent is not tenable. The air hose had been specifically rigged to run to this work site. Given that these roof bolting machines are apparently commonly used throughout the mine this could not have been an uncommon circumstance. When the need to use it had ceased the practise was to disengage the machine from its air supply and bleed the air hose. This air hose had not been disengaged or the line bled. As well a drill rod was hanging from the overhead roof. Mr Saliba made it clear that was not usual. The area had been taped off and tagged to show that Wilson Mining were operating there. It should have been obvious to the Eimco operator - if he bothered to check at all - that the air hose was in use or potential use by somebody and if it was not in immediate use, that the users of the Rambor could return at any moment. A sudden loss of power to such machines involved obvious and foreseeable risks. As Mr Saliba said, it was dangerous to interfere.

[42] While that is sufficient to base a finding of negligence by that operator, I note that it is evident that the operator appreciated that he had made a serious mistake from the fact that he did not stay and render aid, but fled the scene. Nor has he apparently ever come forward to take responsibility for his actions.

[43] I note that the evidence of the statement by the Eimco operator ("Sorry, mate" and "I didn't fucking know")[10] was the subject of objection on the grounds of hearsay as against the defendant, it not being shown that he was an employee and, even if that be assumed, that it was not shown that he was authorised to make admissions on behalf of the defendant citing Clark v CA Kruger & Sons Pty Ltd.[11] I do not base my finding on the statement by the operator. But I do not see his expression of regret as necessarily connoting an apology for any misdeed (which I think prompted the objection) as opposed to regret at the knowledge that someone had been hurt. I allowed the evidence in on the ground that it was original evidence of the speaker's state of mind - that the operator was "sorry" and that he was ignorant of some fact - presumably that the air hose was being used by others. Such statements going to a state of mind are admissible: see Walton v R.[12] However I do not regard the truth of the statement as of any great relevance. At most it suggests that the operator did not check to see where the air hose led. What may be of significance is what was not said. There was no claim of any right to use the hose or any complaint that the Wilson Mining employees had breached some operating procedure.

[44] Secondly, quite apart from whether that operator was negligent there is a wider issue - the lack of any system in place to ensure that such an intervention not occur. As Mr McDougall opined, the activity of drilling and roof bolting are fundamental activities at an underground coal mine and should be the subject of a risk management process. There was no evidence of any such process here. Wilson Mining's operating procedures are in evidence and make no reference relevant to these matters. Specifically there was no evidence of any instruction given to Eimco operators, or the workers generally, not to interfere with air hoses. Nor was there a system in place by which the air hose was tagged such that permission to interfere had to be first obtained from the users - here the Wilson Mining staff. As to that last point Mr McDougall said:

"Good industry practice is that whenever a powered portable piece of equipment is being used and the isolation point for the energy source (electrical, pneumatic, hydraulic etc) is remote from the working area or out of line of sight, the isolation point would be tagged (detailing the duration and activity undertaken). Where the activity is critical a lock should be fitted."[13]

[45] I note that North Goonyella adopts that measure as a necessary one in its submissions,[14] albeit denying it was its responsibility to put such a system in place.

[46] I turn then to the issue of whether North Goonyella is liable for the negligent Eimco operator or the absent safe work system.

[47] Counsel for Mr Love puts the case on four grounds - vicarious lability for an employee; breach of the duty owed by a labour hirer to the employee of the labour hire company; breach of a statutory duty; or breach of a personal non-delegable duty owed at common law.

[48] It is not entirely clear from either the submissions or the pleadings whether North Goonyella accepts that it owed any relevant duty of care to Mr Love. As senior counsel for Mr Love submitted, by its pleading at paragraph 6(a) of its Amended Defence (and despite avoiding the issue at paragraph 2(f)) North Goonyella appears to accept an obligation to take reasonable care to avoid exposing Mr Love to a foreseeable risk of injury. In case that is not right I will decide the point.

[49] Each of the parties referred me to my own decision in Kerle v BM Alliance Coal Operations Pty Limited & Ors[15] where I held that there was a duty of care owed to an employee of a labour hire company.by the mine operator that was not non-delegable. Neither argued that my decision was wrong, but rather that there were distinguishing features in this case that should lead to a different result. I agree that the result here is different.

[50] It is necessary to repeat some of what I said in Kerle. The starting point is that the mere fact of that relationship of principal and independent contractor does not of itself give rise to a common law duty of care: Leighton Contractors Pty Ltd v Fox.[16] However there may be special features of the relationship between the parties justifying the imposition of a duty of care. So much was held in Stevens v Brodribb Sawmilling Co Pty Ltd[17]where it was said:

"The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its 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."[18]

[51] Precisely what those features are is still being worked out case by case. What is clear, is that the duty can be owed not only to the contractor but to the contractor's employees: Tolhurst v Cleary Bros (Bombo) Pty Ltd;[19] Sydney Water Corporation v Abramovic.[20]

[52] The risk of personal injury in Stevens arose at the worksite and out of the potential for confusion in the organising of activities between multiple contractors. It was held that the entrepreneur who had engaged the various contractors owed a duty of care akin to, but more limited than, that of an employer. Mason J said:

"Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines ..."[21]

"... An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk (Sutherland Shire Council v Heyman) and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its 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. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, 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 either within his area of responsibility or in an area of shared responsibility."[22]

[54] The continuing authority of these statements was recognised in Leighton Contractors Pty Ltd v Fox.[23]

[55] Here there were a number of independent contractors on the site. Just how independent some of those contractors were is debateable given the evidence from Mr Carter that North Goonyella even controlled the uniforms they wore. But the fact of the presence of multiple contractors on site gives rise to precisely the duty of care recognised in Stevens. Hence North Goonyella owed a duty to Mr Love to have in place safe systems of work as Mason J described in Stevens.

[56] But I think that the duty here is more extensive than that discussed in Stevens and analogous to the duty owed by an employer. Here the relationship between North Goonyella and Wilson Mining is not simply that of principal and independent contractor. The pleadings,[24] as well as the evidence, indicate that Wilson Mining was a labour hire company providing labour to North Goonyella. The evidence of Mr Love and Mr Saliba is that North Goonyella exercised virtually complete control over them. Where people worked, what tasks they performed, what equipment they used, and indeed how they carried out their tasks all came under the control of North Goonyella or the people the company had put in charge.

[57] North Goonyella submitted that the evidence showed this was not a labour hire arrangement. It submitted that Wilson Mining were providing specialist expertise, equipment pertinent to that, and supervisors. It is true that Wilson Mining were engaged to deal with emergency response and long wall recovery after roof collapses. But that is not what these men were doing. They were engaged in what they called secondary response, namely roof bolting. That is simply labouring work. There is no great expertise involved. The only equipment identified as supplied by Wilson Mining was a passing reference to a pump used in relation to the recovery work, not roof bolting. The submission that Wilson Mining controlled the manner in which the work was done[25] ignores completely the fact that North Goonyella took away the alternative roof bolting machines and supplied (and so directed that it be used) the Rambor machine. I have mentioned the limited involvement of Mr Rodriguez who is said to be the supervisor. In all relevant respects this was a labour hire arrangement.

[58] While I am conscious that one must be wary of labels, it has long been held that host employers can owe a duty of care to employees of labour hire companies analogous to that of the employer: TNT Australia Pty Ltd v Christie.[26] That comes about because the degree of control exercised over the workforce, the workplace, and the systems of work by the host employer is indistinguishable from that usually exercised by the employer. There is no doubt that North Goonyella exercised that significant control here. In my view that feature justifies the imposition of the more extensive duty of care here.

[59] The remaining question is whether the duty owed was personal and non-delegable. The duty that arises out of various relationships has that characteristic. That owed by an employer, is one such relationship. In Kondis v State Transport Authority[27] the employer was held liable for the negligence of its independent contractor (a crane operator) in failing to adopt a safe system of work. Mason J there described the duty as a personal duty to ensure that reasonable care is taken[28] and said[29]:

"The foreseeability of injury is not in itself enough to generate the special duty. Before the special duty arises there must exist in the relationship between the parties an element of the kind already discussed.

That such an element exists in the relationship of employment is beyond serious challenge. The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences."

[60] Mason P and Foster AJA held that the duty owed by the host employer in TNT v Christie also had that characteristic.[30] In my view the duty owed here has that same characteristic and for the same reasons identified by Mason P.

[61] The relevant distinction between the situation here and that in Kerle (where I held that the mine operator did not owe a personal and non-delegable duty[31]) is that in Kerle the mine operator (there BMA) did not have that day to day contact and control which it is evident existed in the relationship between North Goonyella and Mr Love.

[62] The significance of that finding is that is not enough for North Goonyella to say it has acted reasonably. It was required to ensure that others - such as the unidentified Eimco driver or Mr Saliba or Wilson Mining - exercised reasonable care as well.

[63] While that finding is sufficient to fix North Goonyella with liability for an unsafe system of work or the negligence of the Eimco driver (or, as North Goonyella argued but which I do not accept, the alleged negligence of Mr Saliba), in case I am wrong I will briefly deal with the remaining arguments.

[64] If the Eimco driver was the employee of North Goonyella, North Goonyella is vicariously liable for his negligence. North Goonyella contends that the plaintiff cannot show that the unidentified person in the Eimco was an employee of North Goonyella. It submits that the only evidence of such employment was his uniform (which is so) and 40% to 50% of those wearing the uniform were employed by other entities. Hence the plaintiff cannot discharge the onus of proof. North Goonyella says that it is not liable for the negligent acts of the employee of an independent contractor.

[65] That last proposition is debatable. In Northern Sandblasting Pty Ltd v Harris[32], McHugh J referred to the force of arguments which would justify the imposition of liability on employers for the acts of independent contractors.[33] The point was not decided there and left open in Hollis v Vabu Pty Ltd.[34] I too will leave the point open, given my earlier findings which make it unnecessary to decide the point.

[66] Senior counsel for Mr Love contended that the absence of any explanation from North Goonyella as to why that employee has not been located was sufficient to overcome any evidential gap. That is, that there is a Jones v Dunkel inference to be drawn. While the evidence suggests that there was no effort made at all to identify the employee, I cannot accept that submission is correct. There is very little to go on. If, as I assume, the unidentified Eimco driver was very keen not to be identified then there was not a great deal that North Goonyella could do to identify him.

[67] A stronger point is that Mr Carter said that it was less likely that Peabody Energy staff (ie non North Goonyella staff) would operate an Eimco underground.[35] Hence it is urged that it is more probable that the Eimco driver was an employee of North Goonyella. The issue is whether that is sufficient to support "an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind" as Dixon CJ said in Jones v Dunkel.[36] In Briginshaw v Briginshaw[37] Dixon J stated: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality"[38] see also Holloway v McFeeters.[39] Murphy J criticized this view of the law in TNT Management Pty Ltd v Brooks[40] but his was a lone voice.

[68] To return to the evidence here, let us assume that the original premise is a 50/50 likelihood of a North Goonyella employee operating the Eimco cf. a non-North Goonyella employee. Let us now assume with Mr Carter's concession that the probabilities are more like 75/25 that a North Goonyella employee was the driver. Mathematically perhaps the proposition is right that it is more probable that the employee is that of North Goonyella but there is no evidence that "justifies any belief in its reality". I do not think the onus is discharged.

[69] However, that is not necessarily the end of the enquiry. North Goonyella's submission assumes two things. First, that Mr Carter's assertion that there were third party employers on site results in a finding that those employers were properly characterised as independent contractors. Secondly, that it follows that if the Eimco driver may have been employed by a third party that concludes any case against them based on that person's negligent act. I do not accept either premise.

[70] I think it is a legitimate inference to draw from Mr Carter's testimony that various corporate entities had employees who carried out work at the North Goonyella Mine and that those entities were responsible for the payment of the salary of those on their payroll. But that it seems to me is but the starting point for the relevant enquiry which I think is this: what are the legitimate boundaries to North Goonyella's responsibility for the negligence of others and is it determined by Mr Carter's categorisation of the staff working at the mine?

[71] What evidence there is, suggests that if the employer of the Eimco driver was not North Goonyella but a third party employer, that entity was not an independent contractor as that term is usually understood.

[72] What is known is that the person that North Goonyella had chosen to put in control of those third party employees (ie Mr Carter) had the power to direct not only what their uniform should be but that the uniform identify them as North Goonyella employees. The adoption of the uniform had the effect of representing them as North Goonyella's employees to the outside world. That is in fact what Mr Love and Mr Saliba assumed. Independent contractors do not normally permit their employees to represent themselves as the employees of another independent entity. That representation is significant. Indeed, Dixon J thought it critical in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd[41] where, as the plurality in Hollis v Vabu Pty Ltd[42] said, "Dixon J fixed upon the absence of representation and of identification with the alleged employer as indicative of a relationship of principal and independent contractor."[43]

[73] Control did not end with the uniforms. As I have already discussed the evidence of Mr Love and Mr Saliba was that extensive control was exercised over them and they were not required to wear North Goonyella's livery. There is no reason to think that the control exercised over these third party employees was any less.

[74] There is then an evidential issue. North Goonyella's claim that significant numbers of the workforce were not their employees rests on the mere assertion of Mr Carter, an employee of Peabody. No contracts were put in evidence. It is fundamental that the relationship between two parties is not determined by mere assertion, even an assertion made in the contract between them that the relationship is one of independent contractor and not employment. As the plurality said in Hollis "such terms are not of themselves determinative, as parties cannot deem the relationship between themselves to be something it is not" citing R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10; (1952) 85 CLR 138 at 150-151; Adam v Newbigging (1888) 13 App Cas 308 at 315; Ex parte Delhasse; In re Megevand (1878) 7 Ch D 511 at 526, 528, 532 and including in the relevant footnote a reference to TNT Worldwide Express (NZ) Ltd v Cunningham [1993] NZCA 84; [1993] 3 NZLR 681 at 699: "The proper classification of a contractual relationship must be determined by the rights and obligations which the contract creates, and not by the label the parties put on it."

[75] Here I am given the label but not the contractual terms. The evidence is silent as to the rights and obligations imposed under any contract between North Goonyella and the employers of those employees who were permitted to go underground, drive Eimcos, and to wear the North Goonyella livery despite their alleged non-employment by North Goonyella.

[76] It might be said that it is for the party who asserts the fact of employment to prove it and not for North Goonyella to disprove it. But an inference can be drawn from the failure to lead evidence of the contracts in place that their contents would not have assisted North Goonyella. Only North Goonyella knows the inter-connectedness of these unidentified corporate entities and it chose not to reveal the arrangements.

[77] It became evident from the objections taken in the course of the trial that North Goonyella had not disclosed the contract it had with Wilson Mining. I think it is a legitimate inference to draw that it had not disclosed the contracts it had with other third parties. Hence Mr Love had no means of placing these contracts before the Court - only North Goonyella could do that. I think that an inference can be drawn that it would not have assisted North Goonyella to prove the true nature of the relationships between these unidentified entities and itself.

[78] I return then to the question of what are the legitimate boundaries to North Goonyella's responsibility for the negligence of others. Should it extend to these employees of these third party entities? As I have indicated the greater probability is that these third party employees were something less than independent contractors and very close to employees of North Goonyella.

[79] A somewhat similar problem arose in Hollis.[44] There a bicycle courier struck and injured a pedestrian. The courier was identified by his uniform as a person engaged by the defendant but otherwise he could not be identified. The defendant courier company claimed that all their couriers were independent contractors and that it was not liable for their negligent acts. Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ said at 40 [42]:

"In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise. In delivering the judgment of the Supreme Court of Canada in Bazley v Curry, McLachlin J said of such cases that "the employer's enterprise [has] created the risk that produced the tortious act" and the employer must bear responsibility for it. McLachlin J termed this risk "enterprise risk" and said that "where the employee's conduct is closely tied to a risk that the employer's enterprise has placed in the community, the employer may justly be held vicariously liable for the employee's wrong". Earlier, in Ira S Bushey & Sons, Inc v United States, Judge Friendly had said that the doctrine of respondeat superior rests:

'in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities'".[45]

[80] There is no doubt here that North Goonyella's enterprise has created the risk that produced the tortious act. As well, several of the features which led to the finding in Hollis that the couriers were employees and not independent contractors are present here. In addition to representation as their employees, the degree of control, the need to deter indifference to any harm caused by the employees, the provision of equipment and consumables, and the performance of the main purpose of the business by these employees all support the same result here as in Hollis. The plurality's[46] insistence in Sweeney v Boylan Nominees Pty Ltd[47] on the need to examine closely the relationships between the parties supports this approach.

[81] In my view it is strongly arguable that North Goonyella should be held responsible for the negligent acts of these third party employees. The statutory obligation cast on North Goonyella to exercise control over the mine (s 41 CMSHA) at least supports that imposition. However, given my views in relation to the nature of the relationship between the parties it is unnecessary to say any more or to decide the point.

[82] North Goonyella is a coal mine operator. Sections 41 and 42 of the CMSHA impose on coal mine operators certain obligations. Senior counsel for Mr Love contends that there has been a breach of those obligations and that a private right of action is available for that breach.

[83] North Goonyella contends that no private right of action is available for breach of the provisions of the CMSHA. Again I am referred to my own decision in Kerle where I considered this issue and concluded that the same submission made there by the coal mine operator was correct.[48]

[84] The argument in Kerle concerned the imposition of an obligation which extended beyond the mine site, after the work had been completed, and to the world at large. The argument here is much more confined.

[85] I will not repeat all that I said in Kerle. Given my earlier findings I do not see it necessary here to decide an issue that is not without its difficulties. I will merely observe that an obligation confined to subsections 41(1) (a), (f) and (g) CMSHA is not so different to those obligations which have been found to afford a private right of action in the past in the context of employee safety: see Rogers v Brambles;[49]Schiliro v Peppercorn Childcare Centres Pty Ltd;[50]Bourk v Power Serve P/L & Anor.[51] And, as senior counsel for Mr Love contends, the fact that the legislature has seen fit not to amend the legislation to deny any private right of action, as it has done with the Work Health & Safety Act 2011 (Qld) (see s 267) is some indication that an inference is available that a private right of action is conferred.

[86] In my view unauthorised interference with the air supply to a pneumatically operated machine involved a foreseeable risk of injury to the operators of the machine. I did not understand North Goonyella to contend otherwise.

[87] It follows from my earlier statements concerning the evident negligence of the Eimco operator, that breach of duty is shown.

[88] Whether North Goonyella's liability extends further requires a reference to the relevant principles that apply in determining breach. Mason J's formulation in Wyong Shire Council v Shirt[52] explains the response expected of a reasonable man, there being a foreseeable risk of injury and a duty of care owed:

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

[89] In my view North Goonyella breached its duty to provide a safe system of work in failing to have in place, and enforcing, a system of tagging out of the air supply valve when in use such that permission to interfere with the hoses had to be first obtained from the users, and instructing all those in the mine that air hoses were not to be used unless and until the permission of those using them had been obtained. No argument was led of any expense, difficulty or inconvenience in adopting such a measure. Rather the argument was that it was Wilson Mining's duty, not North Goonyella's duty, to ensure such tagging occurred.

[90] My findings in relation to the non-delegable nature of the duty owed by North Goonyella makes the submissions concerning Mr Saliba's alleged negligence and Wilson Mining's responsibilities irrelevant. I observe however that I cannot see how Mr Saliba was negligent given his understanding of the way the machine worked. In fact what is striking is the absence of any evidence from North Goonyella given its criticisms of the conduct of Mr Saliba and Mr Love.

[91] Nor is there any evidence that Wilson Mining had any right to tag out air hoses supplied by North Goonyella, or that North Goonyella had any reason to think that Wilson Mining had ever given any such instruction to their staff, or that it was their practise to do so. Nor was there any evidence that if Wilson Mining had any such practise that North Goonyella's staff had been instructed to respect those tags.

[92] Finally there is the argument that the provision of the Rambor instead of the alternative machines that I have mentioned earlier connoted negligence. While use of the alternative machines would have obviated the risk, I observe that the use of the Rambor was safe enough - at least as far as the risk of an unauthorised interruption to the air supply was concerned - provided its use was accompanied by the implementation of a safe system of work. North Goonyella, of course, was, or should have been, well aware that there was no tagging system in place of the type described by Mr McDougall, regardless of who should have been responsible for its implementation. No reason is given as to why it was impracticable to supply such alternative devices.

[93] North Goonyella cannot have the best of all worlds. If the premise be that no tagging out system was to be in place, it was incumbent to supply one of these alternate devices in order to obviate the risk of having multiple contractors on site interfering with each other. It is common ground that it was North Goonyella who was responsible for their supply. They should bear the consequences of not doing so.

[94] North Goonyella contends that Mr Love contributed to his injury by his own negligence by stepping away from the roof bolter before it locked in place.

[95] The principles that apply are not contentious. Given my earlier finding of the nature of the relationship between the parties I need not concern myself with the issue of whether different considerations apply where the defendant is not the employer: see Thompson v Woolworths (Queensland) Pty Ltd;[53] Pollard v Baulderstone Hornibrook Engineering Pty Ltd.[54] A plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman.[55]

[96] As McColl JA said in Pollard: "In an employment situation a court is required to take into account, in determining whether a plaintiff has been guilty of contributory negligence, the fact that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing the plaintiff to unnecessary risks. In such a case, the question is whether, in the circumstances and under the conditions in which the worker was engaged, the worker's conduct amounted to mere inadvertence, inattention or misjudgement or to negligence rendering him responsible in part for the damage: Bankstown Foundry Pty Ltd v Braistina."[56]

[97] The argument that Mr Love was negligent is untenable for several reasons.

[98] First, there was no evidence that he had ever received any training or instruction that he ought not to step away at the stage he did, or that he ought to have appreciated that there was a risk of injury in stepping away. As will be seen he did not understand the workings of the machine. Allied with that point is that, as I understood Mr Saliba's evidence, it was not the practise to have the offsider stand immediately adjacent to the machine as North Goonyella would have it. North Goonyella did not call evidence from any person experienced with these machines to criticise Mr Love's positioning.

[99] Secondly, there is no reason to think that he would not have been injured if he had stayed in position.

[100] Thirdly, and fundamentally, the argument proceeds on a false assumption. It is assumed that there is mechanical locking of the chuck into the drill. Both Mr Love and Mr Saliba thought that was how the machine worked. So it is said that once that locking occurs the offsider is safe to move as the machine cannot fall. Mr Love did not wait until that point had been reached. But the evidence of Mr McDougall was that the chuck steel does not "lock" in to position. So wherever Mr Love positioned himself, unless outside the radius of the drill steel, he was at risk if the air supply failed. And he did not have time to get to that safe point before the machine fell.

[101] While the workers had a different view of the mechanism they were not engineers and Mr Saliba made that point more than once. Mr McDougall claimed to be familiar with the workings of machines of this type and to have seen the drill head disengaged by the pulling down on the drill leg. North Goonyella did not choose to contest Mr McDougall's opinions by engineering evidence of its own that it would certainly have available. The inference is that Mr McDougall understood the working mechanism perfectly well, as he claimed.

[102] The issue here is whether the incident has made a material contribution to Mr Love's present state. Mr Love contends that in the incident he suffered a severe crushing injury to the C5/6 vertebra and intervertebral disc. While it is evident that Mr Love suffered some injury in the incident North Goonyella submits that causation of that serious injury is not shown.

[103] I do not think that it is now in contest that Mr Love does have a very significant problem with his C5/6 intervertebral disc and perhaps vertebra. Evidence was given by an experienced neurosurgeon, Dr Timothy Steel, that Mr Love has such an injury and that he requires surgery to correct the problem. The surgeon's opinions, at least in that regard were not contested.

[104] At one level it might seem surprising that causation is in issue. The incident involving a weight in excess of 40kgs falling onto someone's head from a height of some metres is plainly of a type that one would readily accept involved the imposition of very significant forces on the neck and so entirely consistent with a resulting neck injury. In addition to this, there is Mr Saliba's evidence that I have quoted earlier that Mr Love was complaining of his neck immediately after the event and when Mr Love was in a dazed state.

[105] North Goonyella bases its attack on causation on two grounds. First, Mr Love's history was not indicative of a significant neck injury having been suffered in the incident. Secondly, there were other incidents that had occurred in his life which could as easily have explained his present plight.

[106] As will be seen, the problem with the defendant's approach is that it ignores entirely the uncontested evidence which falsifies the hypothesis. I am satisfied on the balance of probabilities that causation is made out.

[107] As a preliminary matter I need to say something of my assessment of the witnesses. I was very impressed with Mr Love. He was in very obvious pain throughout his testimony. His face was drawn and pale. He held his neck rigidly. His condition seemed to worsen through the day. As Mr Crow pointed out on one occasion he apparently fell asleep when in the back of the court room. Despite his distress he answered questions candidly and forthrightly. At no stage did he take refuge in his obvious pain to give himself time to think. I was impressed by his evident honesty and stoicism.

[108] Of the three expert witnesses called - Dr Steel, Dr Cook and Dr Fitzpatrick - I thought that Dr Steel provided the most assistance. While all were obviously doing their best, Dr Steel I thought had the best grasp of the issues, readily conceded points that were against his opinions, but then explained cogently why he held the views that he did. To a large extent his views were supported by an orthopaedic surgeon, Dr Cook. Dr Fitzpatrick had the disadvantage that Dr Steel, Dr Cook and Dr Leibowitz (a radiologist whose opinions were not challenged) disagreed with her as to the significance of the radiological findings. They each thought that in a man of Mr Love's age of 34 years (at the time of the relevant MRI) single level abnormality at the C5/6 level as seen on the MRI scan, with the "modic changes", and without degeneration present at other levels of the spine, was a strong indicator of trauma to that level. Dr Fitzpatrick thought that the degeneration was age related.

[109] I will briefly relate Mr Love's history of injury and symptoms.

[110] There is no evidence of any neck injury or pain pre-dating the incident.

[111] After the incident he was seen at first aid and at the local hospital. He made complaint of pain consistent with an injury to the upper part of his spine of some sort.[57] He was at the end of his roster and so had a few days off. He did not claim workers' compensation. He then returned to work. His present evidence is that he had continuing mostly mild ongoing symptoms initially with occasional flare ups.

[112] Mr Love continued to work in the mining industry for some years. He was not seen again by any medical practitioner for any neck complaint until January 2012 following what was called a "jet ski incident". He says that the symptoms at that aggravated level settled quickly.

[113] In October 2012 he complained of neck pain after his truck hit a pot hole. Again there was a flare up of symptoms that settled back to the usual level.

[114] He then sought no treatment for any neck complaint until August 2014. His work in the preceding months involved driving dump trucks on mine sites where he was liable to be thrown about within the cabin to such a degree that he would need to hang on to the steering wheel. He complained of neck pain as a result of the jarring.

[115] During that period of four years he attended on medical practitioners on numerous occasions for unrelated matters - 31 on the defendant's count - but made no reference to any ongoing neck pain. From time to time Mr Love completed coal board medical questionnaires in which no complaint of neck pain was made.[58]

[116] Mr Love said that he arranged his work so as to minimise the amount of roof-bolting work that he did as operator so as to limit the extent that he had to look up. He also eventually left that work in February 2011 and went to driving trucks which he thought would be easier on him. He plainly was very keen to maintain his employment.

[117] The statement of Mr Love's estranged de facto partner, Ms Storey, was admitted into evidence and not the subject of cross-examination. Ms Storey detailed her observations over the years. She summarised them as follows:

"I have observed Marc and listened to Marc over the period of time since he was knocked unconscious on 12 August 2010. I have no doubts that he suffered an injury to his neck at that time. My clear recollection is that he has complained of pain and discomfort with his neck and headaches since that time. His complaints became worse as time went on. He attempted to work and did work with the pain and discomfort until the latter half of 2014."[59]

[118] This uncontested evidence supplies independent support for Mr Love.

[119] It is useful at this stage to deal with one further point made. In October 2016 Mr Love attempted to hike to the base camp of Mt Everest. While he was not successful in reaching the camp he hiked for some three weeks and covered some 120 kilometres. It is not in issue that Mr Love had complained of significant problems in his neck before he set out on this trek. His account was that he was in a depressed state because of his ongoing pain, he rang his father in despair, his father who is in his seventh decade was already planning the trek (it was his father's fifth trip to base camp) and his father urged him to get himself fit and join him on the trek. Mr Love described his efforts to get fit. He took medical advice. He increased his medication. He explained that he wore morphine patches and doubled the dose to cope with his pain. He said that the trek involved about four hours or so bush walking each day carrying a light day pack. While the trek was at altitude it did not involve climbing. Despite his evident determination he had to stop early after covering some 70 kilometres and still some distance from the base camp. He then rested for three days before commencing the return journey.

[120] The submission was that this activity is inconsistent with Mr Love experiencing any significant pain. For many it would be. But that submission tends to ignore the independent evidence of complaints of pain pre-dating the trek, the support from witnesses who know the plaintiff well and who are not challenged, an obvious present debilitating problem, and the radiological evidence which plainly shows that the condition has developed over many years. I draw a very different conclusion. This episode in Mr Love's life says volumes about him. He is stoic and to a degree rarely seen in personal injury litigation. To a large extent that explains his history.

[121] Even so I would entertain considerable scepticism about the causal link if there had been no complaint at all of neck pain related to the subject incident for years after the event. But that is not the true picture. I have mentioned the evidence of Ms Storey. As well, on 2 November 2011 Mr Love attended on a remedial massage therapist, Mr Meredith. Mr Meredith reports that Mr Love presented with "severe pain at the base of his neck which radiated into both shoulders and to the base of his skull" which he attributed to the accident of August 2010 where a heavy object fell on the back of his head knocking him out. Mr Meredith reports that Mr Love said that "he had suffered muscle stiffness and pain in the injured area which would frequently worsen."[60] That history accords with Mr Love's testimony. The complaints pre-date any other known causative incident. The report is independent of those closer to him. It cannot be said that he made the history up for the purposes of gain as he took no action to seek damages until late 2014 and so let the limitation period expire. This is compelling evidence.

[122] On 21 August 2014 Mr Love first related to a medical practitioner, apparently after close questioning, that he had experienced his symptoms since the incident. He was given a workers' compensation medical certificate. On 8 September 2014 his services were terminated by his employer.

[123] It is worth noting that the history a medical practitioner obtains often depends on the questions asked and the patient's understanding of the point of the enquiry. The submissions from North Goonyella assume that Dr Fitzpatrick obtained an accurate history. The unchallenged evidence of Ms Storey and Mr Meredith make it plain that she did not. Why she did not can only be a matter of speculation. It is obvious that her mistaken view of the history affected her perception of the case significantly. When asked about the causal significance of the incident based on a more accurate view of the symptoms Mr Love had experienced she accepted that the incident was a "significant contributing factor".[61]

[124] I have touched on what seem to me to be the salient points of the history. That summary is sufficient for me to explain my response to the defendant's attack. I accept the causal connection for these reasons:

(a) For the reasons explained above I accept that Mr Love is an honest reporter;

(b) There was no injury to the neck nor any symptoms of pain there prior to the incident;

(c) An injury of this type to the neck is consistent with the incident. As Dr Steel said:

"...when patients have a head injury they have a neck injury until proven otherwise. It's part of sort of normal basic neurosurgery training, and it is almost certainly ... that that incident put a significant amount of force on his neck;"[62]

(d) While the reluctance to complain or report symptoms save after the aggravating incidents, even to medical practitioners, is an odd feature I think it explained by Mr Love's stoical nature, that he had become accustomed over time to a level of symptoms, and he was acutely aware of the probable consequence of frank reporting - he would lose his job, as indeed happened;

(e) Fundamental to the views expressed by Drs Cook and Steel is an acceptance of the history Mr Love gives of symptoms starting with the incident and continuing since with flare ups from time to time and eventually increasing to severe problems. I accept that history as accurate;

(f) Dr Fitzpatrick assumed that Mr Love's symptoms settled over three to four days after the incident and that symptoms of neck pain then re-occurred four years later.[63] Her assumptions are wrong;

(g) The radiological changes are entirely consistent with a significant injury being sustained to the neck[64] and some years before the earliest MRI scan in 2014,[65] and so consistent with an injury in 2010;

(h) The radiological appearances also explain the relentlessly increasing symptoms as Dr Steel explained.[66] The evidence I accept is that apart from the affected disc the spine shows no sign of degeneration;[67]

(i) The alternative proposed causes are generally too late in time to explain the "modic changes" to the end plates of the vertebra seen on the MRI scans and described by the doctors;

(j) There is no evidence that any of the proposed alternative causes involved significant forces coming on to the neck sufficient to explain the radiological appearances;

(k) Dr Fitzpatrick's view that the radiology and symptoms are explained by age related degeneration was very much a minority view and quite unconvincing; and

(l) North Goonyella's analysis completely ignores the unchallenged evidence of Ms Storey and Mr Meredith.

[125] The significant injury that Mr Love suffered was to his disc. There was a debate as to whether Mr Love had suffered a wedge fracture of his vertebra. Drs Cook and Leibowitz thought that he had. Dr Steel considered that the radiological appearances were consistent with that but not conclusive proof of it. Dr Fitzpatrick thought not. Dr Fitzpatrick's view was that one would expect significant complaints of pain and ongoing for up to six months before healing occurred. It is clear that the symptoms suffered were not at such a severe level for so long. I think that Dr Steel has it right in this response:

"If, in fact, there was a fracture of the cervical vertebrae in the event, that would've been acutely painful for at least three to six months, wouldn't it?Look, the - one would expect so. I mean, it - it - most of the time when you've got a significant fracture, you know, the - the - you know, you would expect, but [indistinct] a minimal - I mean, you know, in terms of neck fractures, there's - there's minor neck fractures, and there's significant ones, and the - in terms of a - of a wedged compression fracture, his is about as minor as it could get, and the - the damage is not so much to the bone. If - if it has occurred, it's more to the disc. The - the presence or absence of the fracture, to be honest, to me wouldn't make a difference, and he could easily have sustained a minor wedge compression fracture and had relatively minimal symptoms in amongst all these. I mean, he's a pretty sort of stoic sort of individual, and, you know, someone like this may well have just said, 'Well, I've got a bit of neck pain. I'm just getting back to work.'"[68]

The impact of subsequent causally independent events

[126] North Goonyella submits that if I was satisfied that the incident made a material contribution to Mr Love's present condition nonetheless, I should find that the other incidents in his life that have impacted on his neck would have brought him to the same state. The relevant subsequent events are said to be the jet ski incident, the driving into a pot hole in October 2012 and the work performed over some months driving dump trucks in 2014 when Mr Love was thrown about in the cabin of his truck.

[127] North Goonyella submits that the principles that apply are those summarised by Professor Luntz in his well-known text concerning the impact of subsequent causally independent events:

"The relevant rules where a plaintiff sustains further injury in a distinct subsequent accident have been conveniently restated as follows:

1. where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence;

2. where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and

3. where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first."[69]

[128] There are three possibilities. The first is that these various subsequent events caused a temporary aggravation of the existing problem and those symptoms would not have occurred but for the existence of that earlier injury but otherwise are not casually significant at all. The second is that the subsequent events did cause damage of a more permanent and cumulative kind but that damage came about because of the condition of the neck resulting from the incident. The third is that irrespective of whether the incident had occurred Mr Love would be in his present state.

[129] The first and second possibilities fall within the second category identified by Professor Luntz. The third possibility falls into the third category. The plaintiff bears the onus of showing that the damage sustained from any subsequent event came about or is greater because of aggravation of the earlier injury: Edwards v Hourigan and Others;[70] Stephens v Hoey Fry Pty Ltd.[71]

[130] The third category of case involves the proposition that the subsequent events were themselves sufficient to bring about the disability or injury in question. On the evidence I accept this is not a case of the type dealt with in Watts v Rake[72] and Purkess v Crittenden.[73] Rejecting as I do the evidence of Dr Fitzpatrick there is no satisfactory evidence of a pre-existing condition that was likely to come against the plaintiff sooner or later. Nor is there any satisfactory evidence that these subsequent events overwhelmed the effects of the injury sustained in August 2010. In my view the probabilities favour the case falling into the first or second of the three possibilities I have mentioned, and I think more likely the first. That is consistent with the views of Drs Cook and Steel.

[131] North Goonyella's submissions suffer from the problem that they depend substantially on Dr Fitzpatrick's view of the case which I reject. Even so Dr Fitzpatrick hardly provides unqualified support for the submission. She said in relation to the work activities in 2014:

"The incident which occurred in June 2014, specifically where his haul truck was loaded repetitively in a very rough fashion, could have aggravated the pre-existing degenerative change in the cervical spine but this exacerbation in my opinion would have been temporary and would have lasted a period of six to eight weeks."[74]

[132] In her subsequent conference note Dr Fitzpatrick opined that these various subsequent events "could be causative" of the cervical spine pain.[75] That opinion does not establish the point the defendant now wishes to make on the balance of probabilities. At its highest the defendant's evidence does not show so much.

[133] North Goonyella point to the evidence of Dr Steel as supporting the submission but the evidence is with respect taken out of context and further does not address the crucial issue.

[134] At one point Dr Steel said that the throwing about in the truck in 2014 "could easily have added to, or contributed to ... a disc injury. It could"[76] but that was said after the doctor was asked to comment on what the cross examiner called "other significant provocative insults on his neck ... from date of injury 2010 to the radiology in 2014"[77] and "what role they may have played, if any, with respect to the disc degeneration".[78] The doctor's response was, in part:

"...It's not because he's having repetitive traumatic events; it's just that the structural integrity of the disc, ie, being the shock absorber - once that's compromised, you know, the disc itself then - instead of wearing out at its normal rate of events, which every single human being by the time you're 60 or 70 years or 80 years old, the discs are worn out, they're collapse, their black, you know, they're pushed back, they're bulged out and they will show degenerative changes. He has - and that can occur without any event throughout one's life; that's just an aging process. But if you have a traumatic event that causes some sort of structural integrity issue with the disc - you know, that it causes a disc tear or injures the shock absorber - then the degeneration is much faster. And that's - you know, the presumption is that's what happening with him. So he doesn't necessarily need to have had another such traumatic event; this can purely be a radiographic change that - while he's going about, doing his normal activities."[79]

[135] The evidence does not assist the defendant. What the submission ignores is that it was clearly Dr Steel's view that the radiological appearances demonstrated a problem with the disc that long pre-dated the MRI taken in 2014. The premise underlying his answer is that there was already a compromised disc. The crucial questions were not asked, namely whether absent the compromised disc the incidents of being thrown about in the truck would have brought about the disc injury plainly evident in late 2014, or resulted in a similar condition at some stage of his life.

[136] This is evident too when one examines another response relied on by North Goonyella. Mr O'Driscoll put the various subsequent incidents now urged as causative and then asked:

"So with respect to that hypothesis, each of those would have played a role in the development of Mr Love's condition, couldn't they?Look, they could have, and - the - and I guess - you are correct that would mean the key ingredient for trying to apportion - and it's always difficult when there's been multiple injuries or multiple episodes of pain. And it's a, you know, what's the chicken/what's the egg philosophy. The - it is impossible, and probably going to be impossible, to absolutely ascertain which percentage which bit is causing, you know, which problem. So we then got to sort of - if we don't have MRI scans immediately after each episode - and it sounds like he's had multiple episodes of neck pain - and it would not again be in keeping with, you know, the story as described by him - that the original episode, when he originally complained of neck pain. I mean, you - you know, as far as I'm aware, there's no question that he was complaining of some significant neck pain in 2011 which took him to physiotherapy and massage. So something had happened to his neck. Now, in a patient where all we're seeing is one-level problem - and he has a one-level problem. You know, the rest of his neck looks normal. So is he - if, you know - for a young person to be complaining of neck pain, it usually means that there's been damage done to one level. So how significant that damage does or was on the first row of his first incident - it's very difficult to quantify that. But to the - if it's still - if it's taking him off to physio and it's taking him off to do other things, then there's - something happened. And every single event that happens after that can be as a result of the first one purely because it's stirring something up, and it's - you know, you've got a weakened disc that's already - the integrity is gone, which then gets worse and worse. So that's not in keeping with the original injury, starting - and this is why I use the term a "degenerative cascade" - because it's not as if it's a fracture or a one-hit event; it's a cartilage problem that starts and then relentlessly gets worse, and that's precisely what we see with patients with significant modic endplate changes. And his modic endplate changes, which is the inflammation around the C5/6 disc is quite significant. You know, it's not mild; it's quite prominent, which makes us very confident that that's the pain source. And it's also quite prolific, meaning that it's a very - you know, there's quite a lot of generation to the disc. So it's likely that each one of these episodes has been stirring up and making things worse."

[137] Where the doctor said "that's not in keeping with the original injury starting"[81] I take him to be referring back to the question - that the hypothesis that these subsequent events caused the problem was not in keeping with the known history. His response is predicated on the view that the integrity of the disc had been compromised before the subsequent events. His conclusion clearly places this case in the first or second of the categories I have mentioned.

[138] In my view there is no reason to think that absent the incident of August 2010, Mr Love would ever have had symptoms of pain in his neck at all, at least beyond what might be thought to be the lot of every person. Apart from the affected level, his spine was normal radiologically.

[139] That reasoning is sufficient to dispose of the next submission which is made under the heading of "appropriate discount". It is strictly relevant to the assessment of damages but is usefully dealt with at this point.

[140] North Goonyella argues that the various subsequent events that plainly enough caused an aggravation of symptoms of pain in the neck requires the application of the principles explained in Malec v JC Hutton Pty Ltd.[82] It is submitted that there ought to be a 50% discount to any damages awarded on the grounds that that was the chance that Mr Love would have had significant problems, irrespective of the incident, because of these subsequent events.

[141] The reasoning in Malec is concerned with hypothetical events that "would or would not have occurred or might or might not yet occur".[83] The question of causation of injury is a question of past fact to be determined on the balance of probabilities. I have determined here that the defendant caused damage to the disc in Mr Love's spine. What North Goonyella now seeks to argue is that, in the hypothetical situation that the damage to the disc had not occurred, the subsequent events would have caused symptoms and to a degree that would justify the discount claimed.

[142] The short answer to the argument is that the hypothetical situation was not the subject of any evidence - no relevant questions were asked of the medical witnesses.

[143] The factual situation here is quite different to that which pertained in Malec. There it was established to the necessary standard that the plaintiff had a condition of brucellosis and quite independently a deteriorating back condition. The latter condition was not the result of any act of the defendant. The plaintiff had a depressive condition that had been caused by the brucellosis. The Full Court found that he was likely to have developed the same or a similar neurotic condition irrespective of the brucellosis because of the back condition and its impact on his future employment. The High Court held, contrary to the views of the Full Court, that the plaintiff was still entitled to some damages for the depressive condition. The Court held that in assessing damages there needed to be a determination of the chance that if the plaintiff had not contracted brucellosis he would have developed a similar neurotic condition and adjust the damages accordingly. The fact that it was probable that he would develop such a condition and from an unrelated cause did not mean that it should be assumed that it was certain that he would.

[144] Here there is simply no evidence on which to base a finding that if Mr Love had not suffered the injury to his disc in August 2010 he would have developed a similar, or indeed any, symptomatic condition. This is not to ignore chances of adverse consequences from subsequent events. There is simply no evidence that if Mr Love had had a disc unaffected by the incident of August 2010 the forces that impacted on him in any of those subsequent events were liable to cause him any ongoing symptoms or permanent damage. Indeed the evidence is that even with the affected disc his symptoms settled back to their usual course relatively quickly after the events and he returned to work. The most significant of the subsequent events appears to have been the 2014 work. Even there, Dr Fitzpatrick's views that I have quoted above,[84] premised on a degenerating disc, are strongly against any discount being applied.

[145] As well, Dr Cook expressly addressed the issue in his report. He said that "it was more likely than not that [Mr Love] would not have developed any symptoms or problems in relation to his cervical spine even with rough loading and unloading of the haul trucks and going over pot holes along the haul roads".[85] Dr Cook's opinions in this regard deserve weight as he has great familiarity with patients exposed to this sort of work having practised as an orthopaedic surgeon in Mackay - the major population centre in the Bowen Basin - for about 40 years.

[146] North Goonyella submitted that the analysis of Jackson J in McQuitty v Midgley[86] is of relevance here. His Honour there grappled with the difficulties in reconciling Watts v Rake[87] and Purkess v Crittenden[88] on the one hand and Malec on the other. The judgments in Malec did not deal with the principles established in those earlier cases decided decades before. The earlier cases indicate that the defendant bore an evidential onus to show, and with a reasonably significant degree of precision, the impact of any pre-existing conditions. Malec requires that, where appropriate, the Court determine the chances of such conditions impacting on the damages whether they be probable or not. The approach in Queensland has for some time now been that adopted by the Court of Appeal in Hopkins v WorkCover Queensland.[89] An appropriate discount is determined, as best one can, based on the available evidence. But one thing I think is plain and that is that there remains an evidential onus on the defendant to demonstrate the need for a discount. That evidential onus has not been met here.

[147] I make no discount for these subsequent events.

[148] The plaintiff was born on 24 May 1980. He was therefore 30 years of age at the date of the incident. He is presently aged 37.

[149] Mr Love is in serious pain. Dr Cook assessed him as having a 6% whole person impairment using the AMA guide but pointed out that "this estimation greatly underestimates his level of impairment and disability".[90] I agree.

[150] Mr Love has determined to undergo the surgery proposed by Dr Steel. Dr Steel is very confident of the likely result. He has opined that there is an 80% chance of alleviating Mr Love's symptoms.

[151] There was a debate as to the findings that should be made assuming the surgery is undertaken. In my view I should proceed on the assumption that there is a good chance of success, but that even with a successful outcome Mr Love will not be restored to his pre-accident state. I will briefly explain my views.

[152] First, there is a 20% chance that the operation will not be successful.

[153] Secondly, there will need to be a period of convalescence. Dr Steel suggested some weeks initially and then light duties for say four months.

[154] Thirdly, one consequence of the surgery is to throw stress on the vertebra above the fusion proposed. That may well cause degeneration over the years.

[155] Fourthly, the preponderance of evidence was that he should not return to heavy repetitive lifting or strenuous bending and twisting in close and confined areas. The hard labour involved in mining work would seem to be clearly contraindicated. Dr Steel thought it "unrealistic" to expect Mr Love to get back to such work.[91] Dr Fitzpatrick seemed sceptical of the notion of a complete alleviation of symptoms.[92]

[156] Fifthly, and allied to that last point, it would be reasonable for Mr Love to be wary of work that is likely to throw stresses on his neck - such as from driving haul trucks or going underground. As Dr Steel said, a person in Mr Love's position post-surgery may not wish to put himself in harm's way. That is hardly unreasonable.

[157] Sixthly, Mr Love will always have the stigma of having had an extended period off work due to significant injury. Employers may well be wary of employing him.

[158] Damages fall to be assessed under common law principles.

[159] The present serious level of pain has been present only in more recent times. Until September 2014 Mr Love maintained employment. He has steadily deteriorated since. He complains now of headaches; muscle spasms in the neck, shoulders and upper back; stiffness; pain radiating down the right arm and lack of strength in the arm and hand; occasional pain in the left arm and lack of strength there; "pins and needles" in fingers of the right hand; and disturbed sleep. He has become anxious, depressed, frustrated and angry. He has had suicidal thoughts and received extensive counselling. Ms Storey found him impossible to live with because of his anger. Mr Love takes extensive medication. It has the effect of making him drowsy. As a result he is not able to drive.

[160] Even with immediate and successful surgery he will have been out of work for at least three years by the time he has convalesced. In addition to his work on mining sites Mr Love used work as an entertainer and musician. He apparently has a fine singing voice. He has not been able to pursue that work for some time.

[161] Senior counsel for Mr Love contends for an award of $100,000. Various decisions are cited to demonstrate comparable awards but none have the peculiar characteristics of this case - a long period of relatively low level symptoms with occasional flare-ups, with an increasing cascade of symptoms in the last two or three years resulting in very significant pain, but with the prospect of surgery relieving the symptoms almost entirely. But for the surgery and its likely effects I would have acceded to a very substantial award at that level. But there is only a 20% chance of Mr Love having debilitating symptoms for an extended time into the future. And his symptoms generally have been at a much more modest level than now for most of the past nearly seven years.

[163] Mr Love claims $254,000. That assumes not only continuity of employment in the mining industry as a haul out operator but regular income from his entertainment business. The defendant makes no allowance for the entertainment income and discounts the prospective mining income by 50%, presumably for the argument that I have dismissed above that all damages should be reduced by that amount.

[164] Given the limited nature of the debate I do not see the necessity of detailing the evidence further. While some discounting for vicissitudes might ordinarily be required it is relevant to bring into account that Mr Love gave up his underground mining work to minimise the problems he was having with his neck. Underground mining work is better paid than haul out work. The difference is in the order of $80 to $100 per week net.[93] No claim is made for that difference.

[166] The significant debate centred on the impact of the future surgery on future economic loss.

[167] The plaintiff submitted that his damages ought to be assessed at $986,400 and the defendant submitted at $200,000 to $300,000. The latter submission I take to be a global sum.

[168] If the proposed surgery is successful Mr Love's earning capacity will be considerably revived. He will be able to work in most sedentary occupations although he will need re-training. He will be able to work as a plant operator of the type Dr Steel envisaged ("If plant operation involves standing, sitting, flicking switches, walking around, there should be no impediment to that").[94] As I have said, he is most unlikely to be fit to work on a mine site and it would be unwise to do so. If the proposed surgery is unsuccessful he will have no residual earning capacity.

[169] Taking Mr Love's earning capacity at its highest, as I think I should before discounting, he could earn $2,078.75 net per week.[95] In his present state he has no practical residual earning capacity.

[170] The defendant concedes that there will be an initial period in which Mr Love will not be capable of earning any income - until he has the proposed surgery and recovers from it. The suggested period is 12 months. Adopting that period the loss will be $105,000 ($2,078 x 51[96]).

[171] Assuming a 25 year working life in hard work and a complete loss of earning capacity Mr Love's damages would be assessed at about $1.46 million ($2,078 x (754-51)). There is a 20% chance of that loss occurring - $290,000.

[172] I note that the defendant's approach effectively limits the damages under this head of loss to an amount well short of this point.

[173] Assuming successful surgery and so a revived earning capacity there are still considerable impediments in the way of maximising earnings - lack of experience, a history of injury, a long period out of the work force and a still limited residual capacity as earlier discussed. Senior counsel for Mr Love argues for a residual, sustainable, earning capacity of $500 per week net. I think that the residual capacity is greater than that but it is not possible to be precise. Mr Love has demonstrated resourcefulness in the past and is very stoic. There is no real evidence to go on. Doing the best I can on limited material I assess that residual capacity at $800 per week.

[174] I will allow $1,200 loss per week over 25 years but reduced as there is only an 80% chance of that occurring - $674,000 ($1200 x (754-51) x 80%).

[175] For the period from age 62 to age 67 years I assume that Mr Love would have been likely to seek lighter work irrespective of injury and that he will be able to do such work following successful surgery. There is a 20% chance that the surgery will not be successful and that he will not be able to do that. I assess the loss at $10,800 ($800 x (822-754) x 20%).

[176] The total of these sums is $974,880. That amount must be discounted for the usual contingencies - unemployment, ill health and the like. I note Professor Luntz' cogent criticisms of a discount as high as 15% typically adopted in Queensland over the last several decades at least.[97] But here I think there is good reason to discount. The most significant contingency is that the well paid mining work would not have continued or that Mr Love would not have wished to pursue it for as long as I have assumed. His past employment history was not one of very long periods of stable employment. I have previously remarked on the difficulties involved in mining work in Koven v Hail Creek Coal Pty Ltd[98] in these terms:

"It needs hardly to be said but work in the mining industry is not for everyone. It involves working in difficult conditions and usually in remote areas. Long periods can be spent away from home. Plant operation in such conditions has its risks as evidenced by the occasional claim for damages for personal injury that comes before the courts. There are more reasons to limit time in this industry than in many others particularly as one ages."

[177] These various calculations give an air of precision to the assessment. There obviously is no precision in any estimate of the likely future.[99] I allow $750,000.

[178] It is common place on mine sites to be provided with free meals. Mr Love says that he spends about $200 per week now in meeting that cost. He claims $13,650 for the past and $51,786 for the future.[100]

[179] There was no cross examination of Mr Love on these claims, no evidence led to contradict them, and no submission made about them[101]. In those circumstances I allow the past claim in full.

[180] The premise underlying the future claim is that Mr Love will not return to mining work and I accept that. The claim is for $105 per week for 30 years discounted by 40% for contingencies. While I would limit the likely working life on mine sites if uninjured to something less than 30 years, the cost base adopted and the discount applied largely covers any concerns of over-compensation.

[181] I allow $50,000 for the future under this head.

[182] $82,200 is claimed for future home help. It is based on the premise that there will be a continuing need for assistance with ordinary domestic chores, home maintenance, lawn mowing, servicing a vehicle, and having groceries delivered over the next 30 years. The claim is quantified at $100 per week.

[183] I have received no submissions from either side on the claim.

[184] The problem with the claim is that it takes no account of the likely improvement in symptoms following surgery. I think it is very likely that after surgery, with Mr Love's stoicism, he will be able to cope with most of these chores and without real difficulties. He should be compensated for a period leading up to surgery, a period then of convalescence, and then for a 20% chance of real problems following surgery.

[186] The plaintiff claims $56,673 for the cost of future attendances on medical practitioners, medications, massages, gym membership, and psychological counselling.

[187] Again I have no submissions from either side justifying or disputing the claims, save that the defendant allows $5,000.

[188] The principal difficulty is that the claim seems to assume ongoing problems at a significant level. That is not consistent with the claim for future surgery. If the premise is that the surgery will be unsuccessful then it is hardly reasonable to require the defendant to pay for it. But I find to the contrary, that the surgery will be successful and with a significant amelioration of symptoms.

[189] It is appropriate that there be some allowance. I will allow roughly 20% of the claim based on Dr Steel's view.

[190] I will allow the sum of $11,000 under this head.

[191] The loss of past superannuation benefits is claimed at 9.5% of the amount of the award. It reflects the usual approach and is not the subject of any countervailing submission and so I assume it is accepted. I allow the claim at $24,130.

[192] The loss of future superannuation benefits is not strictly undisputed but there has been a rush of generosity apparently from each side to the other. The plaintiff claims a loss at 11.33% of the amount allowed for future economic loss. The defendant's submissions (based on the decision in Yamaguchi v Phipps[102] (Applegarth J) and which were supplied earlier in time than the plaintiff's) accept that 11.4% would be appropriate. I shall adopt the plaintiff's approach - $84,975.

[193] The cost of, and need for, future surgery is not in dispute - $47,852.

[194] Special damages paid by the plaintiff is agreed at $9,747.97.

[195] It is uncontroversial that interest should be allowed on past general damages at 2%. There is a dispute about the period. The defendant contends for a period of three years instead of nearly seven years. That assumes effectively no symptoms were experienced until the last three years which is not right. I will adjust the amount allowed to bring into account the relatively low level of symptoms for much of the near seven year period.

[196] The plaintiff claims interest on past income loss at 1.34% which is significantly less than that apparently allowed in the defendant's submissions.[103] I will adopt that rate and allow $9,428.[104]

[197] I will allow interest at 2% on items of special damage allowed over three years.

[198] In summary I assess the damages as follows:

Interest on Past Economic Loss and Past Loss of Subsidised Meals

[199] There will be judgment for the plaintiff in the sum of $1,356,976.87

[1] [2016] QSC 304 at [39]- [50].

[11] [1946] St R Qd 206.

[12] [1989] HCA 9; (1989) 166 CLR 283 at 288-289 per Mason CJ.

[15] [2016] QSC 304.

[16] [2009] HCA 35; (2009) 240 CLR 1 at 22 [48].

[17] [1986] HCA 1; (1986) 160 CLR 16.

[18] At 46-47 per Wilson and Dawson JJ.

[19] [2008] NSWCA 181.

[20] [2007] NSWCA 248.

[21] Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 31 (emphasis added).

[22] Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 47-48 (emphasis added and citations omitted).

[23] [2009] HCA 35; (2009) 240 CLR 1 at 11 [20]; 21 [46].

[24] See paragraph 2(f)(i) of the Amended Defence.

[26] (2003) 65 NSWLR 1; [2003] NSWCA 47 at [41].

[27] [1984] HCA 61; (1984) 154 CLR 672.

[30] (2003) 65 NSWLR1; [2003] NSWCA 47 at [41]- [43]. With Foster AJA agreeing at [178].

[32] [1997] HCA 39; (1997) 188 CLR 313 at 366-367. See also at 392 per Kirby J.

[33] A quote from the judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 at 36 [32].

[34] [2001] HCA 44; (2001) 207 CLR 21 at 36 [32].

[36] [1959] HCA 8; (1959) 101 CLR 298 per Dixon CJ at 304.

[37] [1938] HCA 34; (1938) 60 CLR 336

[39] [1956] HCA 25; (1956) 94 CLR 470

[40] (1979) 23 ALR 345; (1979) 53 ALJR 267

[41] [1931] HCA 53; (1931) 46 CLR 41.

[42] [2001] HCA 44; (2001) 207 CLR 21.

[44] [2001] HCA 44; (2001) 207 CLR 21.

[46] Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.

[47] [2006] HCA 19; (2006) 226 CLR 161 at 167 [13].

[48] [2016] QSC 304 at [51]- [75].

[49] [1996] QCA 437.

[50] [2000] QCA 18; [2001] 1 Qd R 518.

[51] [2008] QCA 225.

[52] [1980] HCA 12; (1980) 146 CLR 40 at 47-48.

[53] [2005] HCA 19; (2005) 221 CLR 234 at 247-248 [40].

[54] [2008] NSWCA 99.

[55] [2003] HCA 34; (2003) 214 CLR 552 per McHugh J at 558 [16].

[57] See Ex 29 - "mild tenderness" at C7.

[62] T1-45/16-18; See also Ex 6 paragraph (a).

[64] Dr Steel: Ex 6 paragraph (b); Dr Leibowitz: Ex 9 paragraph 11; Dr Cook: Ex 7 p12.

[65] See particularly Dr Cook: Ex 7 at p12; Dr Leibowitz: Ex 9 at paragraph 8; Dr Fitzpatrick: T2-72/15-25.

[67] See Dr Steel at T1-49/19; Dr Leibowitz: Ex 9 at paragraph 11.

[69] Luntz, H, Assessment of Damages for Personal Injury and Death, 4th ed, Butterworths, Sydney 2002 at [2.5.2] - authorities cited are omitted.

[70] [1968] Qd R 202.

[71] [1963] QWN 39.

[72] [1960] HCA 58; (1960) 108 CLR 158.

[73] [1965] HCA 34; (1965) 114 CLR 164.

[82] [1990] HCA 20; (1990) 169 CLR 638.

[83] At 642 per Deane, Gaudron and McHugh JJ.

[86] [2016] QSC 36.

[87] (1960 ) [1960] HCA 58; 108 CLR 158.

[88] [1965] HCA 34; (1965) 114 CLR 164.

[89] [2004] QCA 155.

[93] See Ex 10 paragraphs 31-32 and paragraphs 37-38.

[96] In each of the calculations that follows I have adopted the appropriate 5% discount multiplier, in this case for 1 year.

[97] Luntz, H, Assessment of Damages for Personal Injury and Death, 4th ed, Butterworths, Sydney 2002 at paragraph [6.4.14].

[98] [2011] QSC 51 at [44].

[99] Cf. Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 431 per Stephen J.

[101] Unless paragraphs 118-119 of Ex 36 were intended to apply but they relate to subsidised housing.

[102] [2016] QSC 151.

[104] The arithmetic: $254,000 less Centrelink payments of $5,383 multiplied by 1.34% and allowed over 2.83 years.