Van Opstal v Australian Iron & Steel Pty Limited [2000] NSWSC 1082

New South Wales Supreme Court

CITATION : Van Opstal v Australian Iron & Steel Pty Limited [2000] NSWSC 1082 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC W 200110/96 HEARING DATE(S) : 17 - 21 July 2000 JUDGMENT DATE : 24 November 2000

PARTIES : Peter Van Opstal (Plaintiff) Australian Iron & Steel Pty Limited (Defendant) JUDGMENT OF : Dunford J

COUNSEL : Mr P Hall QC / Mr B Ingram (Plaintiff) Mr J Gleeson QC / Mr P Menary (Defendant) SOLICITORS : Maguire & McInerney (Plaintiff) Sparke Helmore (Defendant) CATCHWORDS : NEGLIGENCE - employer/employee - coal miner hits head on roof bolt - assessment of damages LEGISLATION CITED : Workers Compensation Act 1987, Part 5 DECISION : Judgment for plaintiff; damages see paras 46 & 47.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J Friday, 24 NOVEMBER 2000 W 200110/96 PETER VAN OPSTAL v AUSTRALIAN IRON & STEEL PTY LIMITED JUDGMENT 1 HIS HONOUR: In these proceedings the plaintiff claims damages for personal injuries allegedly suffered by him on 8 May 1995 in the course of his employment by the defendant at the Appin Colliery, which it is said caused significant aggravation to degenerative changes, resulting amongst other things in his inability to continue working. The proceedings are governed by Part 5 of the Workers Compensation Act 1987. 2 The plaintiff was a deputy employed in the Colliery and for two weeks prior to 8 May had been working on "belt patrol", but on that day he was asked to return to the Brennan Panel (where he had previously worked) to replace another deputy on the afternoon shift from 12.45 to 8.30 pm. The Brennan Panel which was some 500 metres underground consisted of a number of "roadways" and in one of the roadways a "continuous miner" machine operated by Peter Gordon was cutting coal at the coal face. From the continuous miner, the coal was transferred to a shuttle car and then to a further shuttle car for it to be withdrawn from the mine, but because the lengths of cable used to operate the shuttle cars were not long enough, the coal was being stored in another roadway known as 28 LW Face Heading which ran at right angles to the roadway in which the continuous miner was working. The storage of coal is apparently referred to in the industry as "stowing". 3 The plaintiff said that on commencing his shift he went to the Deputies' Station where he had a number of tasks to perform and then went to various parts of the panel doing a number of inspections required, such as roof, ribs, (walls of roadways), gas levels, ventilation and stoppings. At about 3.30 pm he came to where the continuous miner was operating and the driver, Peter Gordon, told him that it was dusty and warm and the gas levels were considerably high, so he went to investigate. He proceeded outby, checking first the ducting from the fan and then the fan itself for any problems and then walked back inby to the junction of the panel where the continuous miner was operating and 28 LW Face Heading where he found there was more air going into the former than required. He therefore decided to enter 28 LW Face Heading to check the ducts and regulator in that heading. 4 Having done so, whilst scrambling over the stowed coal to get to the regulator at the end of the heading he hit his head on a protruding roof bolt which had a loop attached to it. His head, neck and shoulders were sore and he sat on the ground for a while and then proceeded to the end of the heading where he found that the regulator had fallen off the end of the vent tube, so he replaced it and put a wedge in the joint to make it tighter. On his way out he attempted to, but could not, remove the loop as it was too tight so he pushed some white paper through it to make it more prominent. He then went back to the Deputies' Station, and continued his duties until the end of his shift. 5 He described the roof bolt as being approximately 8 foot long and an inch wide fixed into the roof of the roadway, and said that it was badly installed, as it was protruding from the roof a lot further than the other bolts. He said that loops on the end of roof bolts were generally used for putting a chain block through for lifting heavy objects, and when they were not being used for such a purpose they were normally unscrewed and removed, to be used again. 6 At the time of the accident he was wearing a safety helmet with a light on it, but did not see the bolt because the area was very black and he was scrambling along, bent over, looking where he was going because of the loose coal on the floor. The height from the floor to the ceiling was approximately 3 metres and the head clearance was approximately 1.5 metres. The coal was stowed in uneven piles from the left hand rib to the right hand rib, right back to about 20 metres from the intersection and the area was approximately 5 metres wide. The coal had been deposited there by shuttle cars and accumulated over more than one shift. 7 The defendant's procedures for the "Stowing of Coal in Development Panels" (Ex. B) was tendered, paragraph 6 of which provides: "A throughway for deputies inspections is to be maintained along at least one side of the stowage area."

The plaintiff stated that there was no throughway or access enabling him to have walked past the stowed coal to carry out his inspections. 8 In cross-examination he conceded that he had on previous occasions struck his head in the course of his work and that miners are aware of the possibility of protruding roof bolts, but said that he did not expect that anything would be hanging from the roof in that district. He agreed that in his Claim for Compensation Form (Ex. C) there was no mention of the roof bolt protruding more than normal, but he maintained that this was the case. 9 Robert Birch was the outby shuttle car driver stowing the coal up 28 LW Face Heading in the Brennan Panel on the afternoon shift of 8 May 1995. He said that the first time he saw the plaintiff on this day was just before the accident happened, and he was about 10 metres away from the plaintiff when he hit his head, he heard a whacking noise, like a safety hat hitting something, and saw the plaintiff sitting on his backside against the stowed coal, holding his neck, moaning and swearing, and that he said that he was very sore. 10 He said there was a large amount of coal stowed in the area at the commencement of his shift as the stowage of coal in the face heading had been going on for a few weeks prior to that day. There had been a walkway (or throughway) left on the right hand side of the heading but on that day he had partially blocked it off and one could only get through by bending over at that particular part. He stated that there were no problems with the vent tubes and did not know if there were any gas problems, and agreed that the continuous miner would have stopped operating had there been gas in the area. In his view the plaintiff was going up to the heading, carrying out his normal inspections as a deputy. He also stated that prior to the accident the plaintiff did not draw his attention to the stowage of coal rules and did not tell him not to block the walkway off. 11 Peter Gordon said that in May 1995 he normally worked on the afternoon shift in the Brennan Panel as the continuous miner driver and assumed that that was what he was doing on the day of the plaintiff's accident, although he did not have any specific recollection of it. He stated that from time to time there were ventilation problems which had to be investigated and attended to. He first became aware that the plaintiff had been injured when someone mentioned it during the shift. 12 I am satisfied that the primary cause of the plaintiff's accident was the failure of the defendant's other employees to stow the coal in the 28 Face Heading in such a way as to maintain a throughway along at least one side of the stowage area as required by the procedure laid down in Ex. B. I am satisfied that there had been some kind of throughway prior to this day, but Mr Birch had stowed the coal in such a way that, at least in places, the stowed coal had rolled down into the right hand rib and as Mr Birch said, the level was uneven where the different loads had been dumped. As Professor Thomas pointed out in his report (Ex. J), "There was no clear passage, or a consistent height". In addition the roof bolt was protruding further than other bolts and the loop at its end had not been removed in accordance with proper reasonable practice. 13 There was a conflict in the evidence as to the circumstances in which the plaintiff went to inspect the duct and regulator in the 28 LW Face Heading that afternoon: the plaintiff claimed it was in response to a concern expressed by the continuous miner operator Mr Gordon about the levels of dust and gas in this area, but Mr Gordon had no recollection of such concern, and Mr Birch thought that the plaintiff was engaged on a routine inspection. It does not matter whether it was a routine inspection or in response to a complaint, it was still a part of the plaintiff's duties as a mine deputy; and I am satisfied for the reasons I have indicated, that negligence on the part of the defendant has been established. 14 The issue of contributory negligence was raised, in particular it was submitted that if there was any unsafe practice involved such as the failure to leave a clear throughway in the stowage area it was the plaintiff's responsibility, as deputy, to ensure that an adequate throughway was provided, particularly as it seems from Mr Birch's evidence that it was only on that day that the throughway became partially blocked. But even though I accept that the position may have been exacerbated by Mr Birch on the day in question, I am not satisfied that a proper throughway was in place before that day (Mr Birch said that before his shift there was already coal stowed right across the heading), the plaintiff as deputy had a number of other tasks to attend to and this was his first visit to this shaft on this shift, so he cannot be blamed for not having rectified it earlier. He could not have known what was there until he got there. 15 It was also alleged that the plaintiff failed to take reasonable care for his own safety and failed to keep a proper lookout - but it was very dark in the area, to get past the stowed coal the plaintiff had to crouch and bend forward so that the light on his helmet would be pointing down and not up at the protruding bolt and ring, and he was busy concentrating on the task in hand. The claim of contributory negligence fails and there will be judgment for the plaintiff without any apportionment. 16 The plaintiff was born on 12 February 1949 in Holland. He migrated to Australia with his family in 1954 and settled in the Corrimal area. He left school at age 15 with the Intermediate Certificate and obtained an apprenticeship as a boilermaker at the Steelworks, where he continued working for a time on completion of his apprenticeship. Over the next 5 years he worked for a number of other companies, including one period back at the Steelworks. 17 In 1974 he entered the mining industry at the Appin Colliery where he was first classified as a labourer, then as a shift man, later as a machine man and at the end of 1979 he was appointed as a deputy after undertaking a TAFE college course. He left Appin Colliery in early 1980 but returned in about 1983 and remained there until his employment was terminated because of his injuries. The plaintiff was married on 4 October 1968. He and his wife have two sons, aged 31 and 28, and a daughter, aged 20. 18 Prior to 8 May 1995, the plaintiff had suffered a number of injuries whilst working in the mine and had back problems going back to 1974. On 4 June 1991, he suffered symptoms in his shoulder, neck and the back of his head as a result of hitting his head against a steel chock and falling over backwards but this involved no time off work. On 30 November 1991 he reported a back injury whilst changing rollers on a conveyor belt. He had physiotherapy and was off work for 3 days. On 4 April 1993 he injured his neck in a man car derailment and was off work for 1 week, then returned to work on selected duties for 2 weeks before resuming ordinary duties. On 29 May 1993 he injured his neck as a result of striking a low pipe at pit bottom, but did not remember taking any time of work. In 1994 he sustained a lower back injury (as a result of being struck from behind by a man car), at which time he ceased doing overtime work. 19 The evidence is confusing but it appears that after the 1991 back injury he received "make-up pay" compensation because he was not able to do as much overtime as previously, and that following the 1994 lower back injury a consent award was made by the Compensation Court on 16 December 1994 for lump sum compensation of $11,686 for permanent impairment of his back and the make-up pay was increased to $232 per week, which continued until the date of the accident. On 24 February 1995 he was walking down a drift and hit his head and slipped and jarred his neck and/or back, resulting in 1 day off work. 20 He said that in the 2 weeks prior to his accident, whilst he was working in the Brennan Panel he was doing fairly light work involving no lifting or bending, that prior to the accident he was not required to do any heavy work and that he would only occasionally do an overtime shift (comprising easy work) when requested to do so by management. He conceded that in the 18 years leading up to May 1995 he had suffered numerous head strikes in the course of his work and that he had told Dr Millons (whom he saw on behalf of the defendant) that he had hurt his neck many times since being in the mines, that only 50% of these various accidents were ever recorded and that over the years he had intermittent physiotherapy which had helped him with his neck problems. He said that at the time of the subject accident, he had some back pain but no pain in his neck and shoulders. 21 Following the accident on 8 May 1995 the plaintiff was aware of neck pain associated with headaches, extending into his shoulders. He finished his shift and went home, but after cooling down the pain continued and he telephoned work and reported the incident to R Kuhna, the Control Officer at about 9.30 pm. The next day the plaintiff worked a full shift and on 10 May attended Dr Daya of Corrimal complaining of headache, neck and shoulder pain. The doctor prescribed medication and referred him for physiotherapy but his condition worsened. On 20 May 1995 the plaintiff again saw Dr Daya complaining of severe neck pain and was referred for a cervical spine x-ray which showed osteophytes at C5/6 and C6/7 levels. 22 When he returned to work about 2-3 weeks later it was on the basis of a half a shift underground and the rest on the surface. The plaintiff said that about a month after the accident he was experiencing headaches, neck, shoulder and arm pain, with tingling feelings and numbness in the fingers. On 7 June 1995 the plaintiff had a CAT scan which showed a probable disc protrusion at C2/3 and more definite protrusions at C3/4 and C4/5, together with bulging of the C5/6 disc with spondylitic changes at that level and osteophytes at C6/7 causing narrowing of the cervical canal and significant compression of the thecal sac, while on 6 July 1995 a MRI scan showed degenerative cervical spine intervetebral disc disease with the largest protrusion at C3/4 (Ex. G). 23 Meanwhile Dr Daya had referred him to Dr Manohar, a rehabilitation specialist, who saw him on 30 June and who in turn referred him to Dr Jeffrey Compton, a neurological surgeon. He was also seen on 25 July 1995 by Dr M Eagleton on behalf of the defendant's insurance company. Dr Eagleton did not give evidence and no report of his was tendered, but it emerged (reluctantly) from the evidence of Dr Kinny that Dr Eagleton was of the opinion that the plaintiff could not go back to work as a deputy underground because of the injuries he had sustained on 8 May 1995 (transcript p 175). By 1 August 1995 the plaintiff had gone back to part-time underground, part-time surface work, the latter of which he found very boring. He stated that his neck was sore all the time but was worse when he was underground having to travel 7 kilometres inby on the train and thus he was taking his helmet off. 24 On 8 August 1995 on the instruction of Roger Arnold, Colliery Rehabilitation Co-ordinator, the plaintiff ceased working underground. On 15 August 1995 a meeting was held involving Alan Carpenter (the afternoon shift manager) Dr Viset (the defendant's medical officer) Mr Arnold and the plaintiff, at which an argument developed about the plaintiff working underground. The plaintiff became upset and went home and was off work for about 2 weeks on stress leave and then on 2 weeks long service leave. He returned to work on 6 September 1995 with a certificate from Dr Vallabhjee (Dr Daya's partner) clearing him for working a half shift underground and the rest on the surface, but was told by Mr Arnold to go home as there was no work available. He was told he could return to work if he could do a full shift underground every second day, which he was unable to do due to the neck pain, and he has not worked since. 25 The plaintiff was assessed by David Rawlston, Occupational Therapist, at Lawrence Hargrave Hospital, who recommended a work hardening program to get the plaintiff fit to do the full shift underground every second day. The plaintiff was willing to undertake the program but permission was refused by the defendant's insurance company, apparently on the recommendation of Dr Kinny who saw the plaintiff on 15 October 1995. 26 The plaintiff was paid workers compensation from 6 September 1995 until 30 October 1995 when he received a letter from Coal Mine Insurance Ltd stating that liability was declined and payments would cease, but on proceedings being taken in the Compensation Court, they were reinstated as a result of agreement being reached. Such payments have continued up to the present time, but the amount received by the plaintiff has decreased. The plaintiff is presently receiving fortnightly compensation payments of $424 net. 27 On 23 February 1996 the plaintiff saw Dr Noel Dan, a neurosurgeon and surgery was discussed, but the plaintiff was reluctant to undertake such a course as he could not be guaranteed the surgery would be successful. 28 Currently he is taking Capoten and Endone for pain and Murelax (an anti-depressant, anti-anxiety and muscle relaxant). The medication dulls the pain and costs $70 per month. He has continuing pain in his neck and shoulders and most of the time the symptoms extend to his hands, sometimes leading to difficulty writing, but his symptoms are worse some days than others. 29 Since ceasing work with the defendant he has been unable to gain employment despite having applied for various jobs, including as a cleaner at Wollongong University; weekend detention officer at Keelong Detention Centre; litter patrol, university parking patrol officer, handyman, a position with Vietnam Vetererans' Counselling Service, and as a caretaker for Illawarra Youth Housing. Upon applying for a job with Chubb Security, the plaintiff failed a medical due to the medication he was taking. 30 He has undertaken some voluntary work for the Family Planning Association approximately 2 years ago, 2 days a week, for a couple of hours for 3 or 4 weeks, for which he was paid $300. He also worked for Lifeline about 12 months ago for 2 or 3 days assisting the truck driver emptying clothing bins and for Mission Australia about 6 months ago for 3 days helping in cleaning out the warehouse which involved moving light material (eg; timber) and stacking steel galvanised pipes, measuring 1 inch by 5 to 10 feet, for approximately 4 hours. He conceded that he had done some electrical work about a month before the hearing as a favour for a friend, which involved him taking down and replacing two light fittings on the ceiling whilst standing on a chair. 31 He said that he drives a car but that parking and driving in city traffic presents difficulties as lane changing requires him to turn his head too far which aggravates the pain. Prior to the accident he was starting to learn to play golf, surfed, played a bit of snooker and maintained his lawns and garden, but not since the accident as these activities aggravate his neck. He finds vacuuming and cleaning windows difficult and holding his arms above his head for an extended time is a problem. He gets angry a lot quicker now. 32 He sold his home at the end of 1996 or 1997 because he could no longer afford the mortgage repayments and he was having trouble maintaining his relationship with his wife, they separated in 1997/98 and each rented a separate unit. Currently the plaintiff lives some nights with his wife in Florence Street and some nights with his son. His wife has leukemia which was diagnosed about 18 months ago. 33 The plaintiff sat stiffly when giving evidence, and when turning he turned his torso and shoulders rather than only his head. He demonstrated a range of movement of only 25 degrees rotation to each side and tried to avoid any movement beyond that, but Dr Daya described 45 degrees neck rotation to each side, and the plaintiff demonstrated more than that at times in the videos which were shown of him, although he claimed that he was at the time relieved by painkillers and that he had good days and bad days. 34 The videos taken of the plaintiff on 17 and 19 February 1996, 24 November 1996, 16 and 17 February 1999 and 22, 23 and 24 July 1999 showed the plaintiff engaging in a number of activities without apparent distress, including sweeping or mopping the front porch of his house, turning his head to the left and right before crossing the road or railway line, looking back over his left shoulder, turning his head to reverse his car out of the driveway, putting air in the car tyres and checking the car for oil and water. They also showed him travelling to Sydney by train without any sign of a collar, which he claimed he used. Although he was reluctant to admit it, it would seem that he has probably changed a gear box and a fan belt since his accident. 35 The plaintiff was seen by a number of doctors for both sides, but apart from Dr Daya, the plaintiff's general practitioner, the only two doctors called were Dr Bracken for the plaintiff and Dr Kinny for the defendant. Unfortunately I found both these two doctors unsatisfactory witnesses. They were both dogmatic in their views, would not accept facts which were put to them on a hypothetical basis and refused to make reasonable and proper concessions when confronted with additional material; e.g. Dr Bracken would not accept that the plaintiff could have the range of movement which had already been seen (though not by him) on the videos. Dr Kinny had only seen the plaintiff once back in 1995 and likewise seemed reluctant to concede anything which might possibly help the plaintiff's case. 36 The reports of Drs Manohar, Compton, Dan and Bentivoglio were tendered by the plaintiff without objection, but although the defendant had caused the plaintiff to be examined by a number of doctors, namely Drs Eagleton (once), Millons (3 times) and Rushworth (twice), none of their reports were tendered and I infer that their reports would not have assisted the plaintiff. 37 On the whole of the evidence I am satisfied that as a result of the accident on 8 May 1995 the plaintiff aggravated pre-existing cervical spondylosis and disc lesions at a number of levels from C3/4 to C6/7. I am further satisfied that although there has been some exaggeration on the part of the plaintiff, that accident was of major significance and that, whereas his previous injuries to his neck cleared up after a few day with physiotherapy etc, this aggravation was major and to use Dr Bracken's words was the "straw that broke the camel's back". He has objective radiological signs to justify his complaints and restrictions. 38 I accept Dr Daya's assessment (he having the best opportunity to observe him over the years) that he is now in constant pain and depressed (as witnessed by the medication that was prescribed for him) and, whereas in the past he was able to return to work, it appears to be the unanimous view of all the doctors (except Dr Kinny whose opinion I reject) that he is totally unfit for work as a deputy and for any other forms of employment involving bending, lifting or twisting. He has also had to give up a number of other activities which he was able to do previously including gardening, surfing and golf. His past record of returning to work, his enthusiasm for the hydrotherapy and muscle hardening program and his attempts to find other work satisfy me that he was and is desirous of returning to work and it is due to the accident that he is no longer working. The fact that he has been able to do some tasks such as changing a gear box once in his own time does not mean that he could do such work or work as a deputy underground on a regular full time basis. 39 Having regard to his previous neck injuries and the CT scan of June 1993 (Ex. O), the injury of 8 May 1995 must be regarded as an aggravation of his previous condition, but for reasons indicated I am satisfied that it was a most significant aggravation; it prevented him working, it curtailed his recreational activities and led to a significant degree of depression which I am satisfied played some part in the separation from his wife. 40 Having regard to these factors I assess the plaintiff's non-economic loss at 30% of a most extreme case. The maximum allowed under s 151G as at 8 May 1995 was $217,600 and accordingly for non-economic loss I allow $65,280. 41 Out of pocket expenses to date are agreed at $9,678 and I allow this amount. For future out of pocket expenses there is a claim for $10 per week for the chemist, 4 visits a year to a general practitioner at $25 each and 2 visits a year to a specialist at $100 a year. I allow the chemist and general practitioner but there is no evidence that the plaintiff has been seeing any specialists for treatment for some years and so I reject the claim for regular visits to specialists. Under this head I allow $9,000. 42 As to past and future economic loss the defendant submitted that the plaintiff has been fit for work as a mine deputy since July 1995. For reasons already given I reject that submission and am satisfied that the plaintiff has been, and remains totally incapacitated for such work. Alternatively it was suggested he could work in a clerical capacity, but he has no training or experience in that field, is unable to sit, stand or watch a computer screen for lengthy periods and would be competing for such positions with much younger people, almost invariably with more experience in that field. 43 It is agreed that the plaintiff's award for make-up pay will not be affected by this judgment. It is also agreed that at the date of trial, the average net weekly wage for a deputy without overtime (which plaintiff was doing pre-accident) is $940 per week. The loss was calculated to the date of trial at $206,497 and I allow a further 18 weeks ($16,920) making a total of $223,417. 44 As to the future I intend to allow the same weekly rate. The plaintiff is now 51 years and 9 months and the usual retirement age in the mining industry is 60. I therefore allow $940 per week for 8.25 years capitalised at 5% p.a., namely $332,972. It was submitted on behalf of the plaintiff that this should be discounted by only 10% instead of the conventional 15% because of the short period involved, whereas the defendant drew attention to the plaintiff's pre-existing neck and back condition and submitted that he probably would not have lasted in the industry until age 60. In my view these factors cancel each other out and there is also the possibility, though I consider it most unlikely, that the plaintiff may be able to obtain intermittent light work within his capacity. For these reasons I discount the figure for loss of future earning capacity by the conventional 15% and allow $283,026. 45 The plaintiff is also allowed for tax paid on his compensation payments (Fox v Wood) which at the date of trial was assessed at $8,118 but this figure will need to be updated and I allow loss of superannuation benefits as calculated in the plaintiff's Written Submission namely past $15,600 and future $38,861, a total of $54,461. 46 These heads of damages may be tabulated as follows: $ Non-economic loss 65,280 Out of pockets to date 9,678 Future out of pockets 9,000 Loss of income to date 223,417 Loss of future earning capacity 283,026 Tax paid on workers compensation 8,118 Loss of past superannuation benefits 15,600 Loss of future superannuation benefits 38,861 $652,980 47 There remain only the questions of interest and costs, and the amount of workers compensation paid and tax thereon, and I shall stand the matter over for consideration of these matters before making formal orders. ----------------

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