Supreme Court New South Wales Medium Neutral Citation: Quinn v Coal Mine Services Pty Limited [2012] NSWSC 1158 Hearing dates: 17-20 September 2012 Decision date: 27 September 2012 Jurisdiction: Common Law Before: Adamson J Decision: (1) Judgment for the defendants. (2) Dismiss the cross-claims. (3) Direct that any party who, or which, seeks a costs order different from that set out in (4) below, make such application within seven days of these reasons. (4) If no application is made within seven days for an order different to that set out in (3) above, order that the plaintiff pay the defendants costs of the proceedings. Catchwords: TORT - negligence - breach of duty of care - whether failure to install railing or other protective devices on mining machinery unreasonable in the circumstances TORT - negligence - damages - causation - question of apportionment between pre-existing condition and supervening events PRACTICE AND PROCEDURE - evidence - admissibility - whether unidentified author of comment in a business record had personal knowledge of matters set out in the document Legislation Cited: - Civil Liability Act 2002 - Evidence Act 1995 - Workers Compensation Act 1987 Cases Cited: - Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16 - Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 - TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1 - Lithgow City Council v Jackson [2011] HCA 36; 224 CLR 352 - Wolfenden v International Theme Park Pty Limited [2008] NSWCA 78 - Watts v Rake [1960] HCA 58; 108 CLR 158 - Austin v Director-General of Education (unreported, Court of Appeal: Kirby P, Clarke and Powell JJA, 21 July 1994) - Laxy v IBM Australia Pty Limited (1992) 35 FCR 79 - Ramsay v Watson [1961] HCA 65; 108 CLR 642 - Fox v Wood [1981] HCA 41; 148 CLR 438 Category: Principal judgment Parties: Kyle Joseph Quinn (Plaintiff) Coal Mine Services Pty Limited (1st Defendant) Centennial Mandalong Pty Limited (2nd Defendant) Representation: Counsel: D Benson (Plaintiff) J Gleeson QC/ P Menary (1st Defendant) G Curtin SC/ D Talintyre (2nd Defendant) Solicitors: Slater & Gordon (Plaintiff) DLA Piper (1st Defendant) Winter, Hilditch & Fotheringham (2nd Defendant) File Number(s): 2009/333025 Judgment 1On 19 April 2007 the plaintiff, who was then employed by the first defendant (Coal Mine Services) at Mandalong Mine, which was operated by the second defendant (Centennial), fell and injured his back. The plaintiff sues both defendants for damages in negligence. 2The plaintiff was working on a machine known as an ABM 25 CM 0086 Continuous Miner (the Miner). The Miner is a cut and bolt miner. It has a revolving retractable mechanism at the front known as a cutter because it cuts the coal ahead of it. 3The Miner is equipped with a rib bolter and a roof bolter, each of which is used by bolt operators to insert metal bolts into the wall (referred to as the rib) or the roof of the cavity, as the case may be. When conditions require, as it did in the instant case, Tensar mesh is bolted to the roof or rib of the mine. Different combinations of bolt patterns and mesh placement are employed to stabilise the mine's structure and to guard against rib falls and rib spall. 4The bolting work is done from a platform behind the cutter on the Miner. The surface of the platform is made of steel plate, with a non-slip steel chequerboard surface treatment. The platform can be extended outward, on either side of the Miner, to increase its surface area. The platform extensions for each side operate independently. The lever which extends or retracts the platform is in the same control panel as the rib bolter. 5There is a rib shield or sprag which is a piece of flat metal which stands at the outside of the platform extension directly opposite the roof bolter valve bank and is designed to protect the roof bolter operator from rib falls when bolts are inserted into the roof of the cavity. 6There is a bolt cassette on the Miner which holds bolts and other material to be used by the bolt operators. 7There are four people on the crew of a Miner: two on either side. On the left side, there is a bolter, so-called because he inserts the bolts into the roof or the rib, and an off-sider, who assists the bolter. On the right side, there is a driver and the bolter operator. 8When the Miner is moving forward, known as tramming, the platform extensions are retracted and the crew members remain on the Miner unless for some reason the offsider needs to collect material, such as new bolts or mesh, from the area behind the Miner. 9When the Miner is cutting, the platform extensions are extended to enlarge the working area on which the bolt operators work. The bolting occurs simultaneously with the cutting. The Miner is stationary while bolting and cutting is conducted, although the force of the cutting causes it to vibrate. While cutting is occurring the coal that is cut from the front runs out of the conveyor in the middle of the Miner. 10It is common ground that work on machines such as the Miner requires persons to be alert at all times to conditions concerning the ribs and roof of the mine and also those concerning the Miner itself, including whether the platform is wet and therefore more slippery than when dry. 11It is common ground that rib conditions at the time of the accident were such as to require Tensar mesh to be applied to the roof and the rib of the cavity to support it and protect those passing through the cavity from falling coal or other debris that could make passage unsafe. 12It is common ground that the plaintiff was, as at the time of the accident, an experienced coal miner of approximately eight years' experience. He had received induction training prior to working at Mandalong which involved instruction concerning hazards, including those relating to machines and those relating to the mining conditions. He commenced working at the Mandalong Mine on 5 February 2007. 13The plaintiff and Mr Broderick were working on the left side of the Miner on 19 April 2007. Towards the end of the afternoon shift on 19 April 2007 the plaintiff fell from the platform of the Miner to the ground below and jarred his back. The plaintiff's case 14One of the principal issues in the case is how the accident occurred. The versions given by the plaintiff are considered in more detail below. I propose at the outset to record the way in which the plaintiff's case was pleaded and opened before me before setting out how it changed in the course of the proceedings. 15Paragraph [4] of the Second Amended Statement of Claim (which was inserted into the pleading by Amended Statement of Claim filed on 26 March 2010) reads: "On 19 April 2007, the Plaintiff, during and in the course of his employment with the First Defendant, at the Second Defendant's premises, at Main Gate 5, was part of a production crew and was standing on the left hand side of [the Miner] when the rib fell in, whereupon the Plaintiff in attempting to avoid being caught between the rib and [the Miner] stepped off [the Miner], falling to the ground below in consequence of which the Plaintiff suffered severe injury, loss and damage." 16The particulars of negligence against Coal Mine Services included: "(d) Failing to ensure that [the Miner] had rail(s) or an additional rib sprag to reduce the risk of slips/ trips from the work platform." 17The particulars of negligence against Centennial included: "(f) Failing to warn the Plaintiff that the work platform on [the Miner] had been retracted. (g) Failing to provide rail(s) or an additional rib sprag to [the Miner] as a means to reduce the risk of slips/ trips from the work platform." 18Mr Benson, counsel for the plaintiff, opened the case by saying that the plaintiff was preparing to bolt when a large piece of rib came away from the rib and shattered. The plaintiff was startled and stepped back in response and fell off the Miner because there was no means of restraint. The plaintiff's case, as opened, was that reasonable care required the defendants to install another rib sprag or railing on the side of the machine and that this would have prevented the fall. 19In the plaintiff's statement dated 23 March 2012, which was tendered as his evidence in chief, he said: "At about 10.50 pm on 19 April 2007 I heard a loud noise and observed the rib falling and instinctively stepped back... and unfortunately off the side of the continuous miner although in the process my left leg was grazed by the shattered rib fall." 20It can thus be seen that the plaintiff's case at trial was that there was a rib fall which startled him and caused him to step backwards. Because there was no impediment to his stepping backwards, he stepped off the platform, lost his balance and landed on the ground below the platform. How the accident happened 21Over time, the plaintiff has given various versions of the way in which the accident occurred. The first version was given in an accident/ incident investigation report form that he filled on in 24 April 2007 (the Incident Report) in which he said: "Describe specific activity of employee at time of incident: Getting ready to bolt up. Describe how incident occurred: Set up rib mesh ready to start bolting but when stepped back I fell backwards off side of miner, left leg and side fell to floor whilst rest of body was still on miner." 22There was no mention of a rib fall in the Incident Report. In later versions, including in his evidence before me referred to above, the plaintiff identified the rib fall as being the precipitating event, which startled him and caused him to fall backwards. 23The plaintiff's evidence at trial was that a rib of the dimensions 1.5 metres x 1-2 metres x 400 millimetres fell and startled him and caused him to step backwards. He said that the rib shattered when it hit the ground. 24The defendants relied on the evidence of Mr Broderick, who was working as an off-sider to the plaintiff at the time of the accident. Mr Broderick had disembarked from the Miner in order to retrieve further materials from the area behind the Miner. He was returning to the Miner when he saw the plaintiff fall. He said that the light cast by his own cap lamp, the plaintiff's cap lamp and the light from the boom of the Miner was sufficient for him to see what happened. 25Mr Broderick saw the plaintiff walk to the bolt cassette, retrieve some material from the bolt cassette and then turn to go back towards the front of the Miner. He saw the plaintiff take a step with his left foot, which slipped out and off the platform causing him to slip off to the left. His left foot went to the ground and the right foot stayed on the Miner. His body was tilted towards the rib of the mine. 26Mr Broderick was 6-8 metres away from the plaintiff when he fell. He could not see any substantial rib spall either before or after the accident. In particular he did not see any rib spall of the dimensions 1.5 metres x 1-2 metres x 400 millimetres. Nor did he see any rib fall that caused the plaintiff to step in the way that he did. He said that the plaintiff did not step backwards. 27Mr Broderick said that the platform from which the plaintiff fell was relatively close to the ground because the jacks that lifted it had not yet been activated. He estimated that the height of the platform at that location would have been in the order of 450-550 millimetres. Mr Latter, the bolt operator on the right side of the Miner on the relevant shift, estimated the height to be about 350-400 millimetres. 28At the time of the accident the platform extension had been retracted. Mr Broderick did not recall whether he or the plaintiff had retracted the platform, but he considered it to be more likely that it was the plaintiff since the plaintiff was close to the controls where the lever to retract the platform was located. He also said that it was his usual if not invariable practice to tell his co-worker when he was retracting the platform since it was a matter of "common courtesy" as well as safety. 29The plaintiff told Mr Broderick that he had jarred his back. Mr Broderick observed that the plaintiff was in significant pain following the incident, which occurred near the end of the shift. 30Mr Watson, another employee of Centennial, gave evidence that Mr Broderick had told him, in the course of the subsequent investigation of the accident, that he had retracted the platform. I have doubts about the reliability of Mr Watson's evidence since it seems improbable that someone who was not an eyewitness and who had not been asked to recall the accident investigation until the time of the hearing, some five and a half years after the accident, would recall not only what Mr Broderick had said but also the context in which he said it. However, I do not consider that it matters whether it was the plaintiff himself or Mr Broderick who retracted the platform since in either event I am satisfied that the plaintiff knew, prior to the accident, that the platform had been retracted. 31I did not form the impression that the different versions given by the plaintiff were necessarily the product of dishonesty. However, I consider it to be more likely that when he was filling in the Incident Report he did so accurately and with a view to informing his employer and his co-workers of what had actually happened to him. Had there been a rib fall which caused him to fall, I am satisfied that he would have referred to it in the Incident Report. 32The plaintiff relied on records that established that there had been several rib falls in that area of the mine in the preceding days. Mr Latter recalled that a couple of times during the shift Mr Broderick told the crew that they would have to reverse because some of the rib had fallen out. However he was not aware of the timing of such rib falls referable to the plaintiff's accident. Mr Broderick explained that such rib falls could be caused by the bolting operation itself as well as other factors, including flaws in the mine. Although Mr McBlane, who was then the shift deputy, does not recall the rib conditions for the relevant shift, he did not recall them to be particularly poor at the time; nor does his Underground Report for the relevant time record them to be so, although earlier reports had noted particular dangers. For example, the report for the afternoon shift on the previous day had recorded: "Very poor ribs - spalling up to 1 m - caution required." 33I do not accept that there was a rib fall which caused the plaintiff to step back as he did. 34I do not accept the plaintiff's evidence that another employee told him what to write on the Incident Report. Although the practice was that employees who had had incidents were not supposed to fill in such a form themselves, the plaintiff did so on this occasion and handed the partly-filled-in form to Mr McBlane. The plaintiff's evidence that Mr Watson told him what to write on the form was not elicited in chief; rather it was given when he was cross-examined about his assessment of the conditions in the mine as being "good". When Mr Watson was called, it was not suggested that he had told the plaintiff how to fill in the form. Although it was put to Mr McBlane (who was recalled for that purpose) that he had filled it in, he denied it and recalled that the form had been handed to him after the plaintiff had filled it in. 35By the time the plaintiff made a statement for the purposes of the proceedings, some five years had passed and his recollection was no longer sufficient for him to recall what had happened. He may also have been unwittingly influenced by contemporaneous reports of mine conditions which indicated that there had been rib falls in that period and in that area, although his own assessment on his accident investigation form was that conditions were good. 36I consider Mr Broderick to be a reliable witness who was in a good position to see what had happened. Although he had been employed by Centennial, his evidence was not, in my view, affected by any allegiance to it. At the time of the hearing he was retired. He appeared to be very sympathetic to the plaintiff's plight and yet did not allow his affection to deflect him from giving his evidence truthfully. As the following passage demonstrates, he was a reluctant witness in that he would have preferred not to have seen what happened. "Q. When you saw him, he was facing away from you? A. He had walked towards me a little. We are talking only of a few seconds here. And he had gone, reached into the cassette and turned around to go back to the face, and he slipped. It's as it turned out it's the wrong few seconds for me to look up, otherwise I would be at home." 37I accept Mr Broderick's account of the way in which the accident occurred, which is set out above. 38In summary, I find that the accident occurred when the plaintiff's left foot slipped off the edge of the platform. It was not caused or precipitated by any rib fall. Nor was the plaintiff, at the time of the fall, unaware that the platform had been retracted. The cause of the fall was the plaintiff's inadvertence. (At the time the plaintiff fell, the platform was in the order of 450-550 millimetres off the ground). Duty of care owed to the plaintiff 39The duty Centennial owed to the plaintiff is substantially the same as if he had been Centennial's employee: Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16 at 31, per Mason J. Although the plaintiff was employed by Coal Mine Services and his co-workers were employed by Centennial, it is difficult to see that there would be any material difference in the way in which Centennial treated and directed the plaintiff had he been one of its employees. Centennial had a right, which it exercised, to control the plaintiff in the work he performed on its behalf and for its benefit. The duty Centennial owed to the plaintiff was akin to that which would have been owed had he been an employee, namely a duty to take reasonable care to avoid exposing him to the risk of injury: Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 at [94], per Ipp JA (Mason P and McColl JA agreeing). It owed a non-delegable duty to the plaintiff to prescribe and provide a safe system of work: TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1 (TNT) at [41], per Mason P and at [178], per Foster AJA. 40However, Coal Mine Services continued to owe a non-delegable duty of care to the plaintiff as its employee. The following statement from Mason P's judgment in TNT, at [67] concerning the labour-hire company, Manpower, also applies, in my view, to Coal Mine Services: "In my view, it would be contrary to principle to enable or even to encourage an employer that operates a labour hire business to treat the normal incidents of the employment relationship as modified simply because its employees are sent off to work for a client. Indeed, the very fact that employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees." Were the defendants negligent? 41The Civil Liability Act 2002 (the Act) applies to the accident. Section 5B of the Act provides: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 42Centennial, when it purchased two Miners, subjected the machines to risk assessments, which were reviewed and revised over time. No challenge was made to the adequacy of these risk assessments. Although the risk assessments were, on their face, rigorous, there is scant reference to the risk of falling. The relevant hazard was identified as "slip trip fall accessing the platforms". The existing control was identified as "Step heights within maximum limits to standards". The findings identified the following as a "high loss issue": "(Fall from); Step from/ slip off deck when on the working platform - leading to a LTI [lost time incident]. Controlled by relatively low height, broken coal in vicinity during operations and limited number of people on deck. Also reduced by the number of designed holders for gear (chemical holders etc.)" 43Accordingly, the risk assessments demonstrate that the issue was considered by an appropriate panel of experts who came to the view that the existing controls were adequate and did not make recommendations to the effect of the matters which the plaintiff contended reasonable care required; namely installation of guard rails or other protective devices. 44Centennial also relied on the expert opinion of Professor Hebblewhite, a consultant mining engineer, whose evidence was not challenged. The plaintiff did not rely on expert evidence, although he had obtained and served reports by a Mr Stothard. 45Professor Hebblewhite refuted the proposition that the defendants had been negligent in exposing the plaintiff to a risk of injury and said: "The Defendant provided a safe piece of equipment and an appropriate and comprehensive set of procedures to enable it to be operated in a safe manner such that with due care and attention to relevant procedures and training, the risk of injury was at an acceptably low level." 46Professor Hebblewhite also refuted the proposition that the defendants were negligent in failing to provide some means of guarding the plaintiff and others from the effect of rib falls and said: "There was no continuous guarding along the side of the work platform, since it was a retractable platform; and it was at a height where guarding was not required. The protection from the effect of rib falls was primarily through appropriate procedures; plus the safe standing position for the operator whilst installing rib support; plus the equipment used for rib support." 47In response to the plaintiff's contention that handrails should have been fitted and may have prevented the plaintiff from stepping back off the platform, Professor Hebblewhite said: "Whilst this may be correct, it is understood that the height of the platform did not require the fitting of handrails." 48The relevant risk for the purposes of s 5B of the Act was that a worker in the position of the plaintiff would miss his footing and/or lose his balance from the platform and fall to the ground. The risk was foreseeable and not insignificant in that there is always the possibility that such an event might occur, particularly in circumstances where lighting, though adequate, is not bright and the surface area of the platform changes from time to time depending on whether the platform is retracted or extended. 49However, the persons working on the Miner were trained to do so and had been inducted in its use. The height of the platform above ground was not obviously such as to warrant a rail to guard against falls. The likely seriousness of the harm suffered if there was no guardrail was relatively small. Furthermore there is nothing to suppose that the placing of a guard rail to protect against the risk which ensued when the plaintiff lost its footing would not have given rise to other risks which were greater and potentially more serious. 50For these reasons I am not satisfied that either of the defendants breached the duty of care which it owed to the plaintiff by not installing guardrails or any other guarding. This is sufficient to deal with the plaintiff's case as pleaded and opened. The plaintiff's revised case: retraction of the platform 51In the course of the hearing, the plaintiff's case changed. The significance of rib fall, which had been pleaded and opened as the precipitating event, was minimised and a new contention was developed, which was articulated by Mr Benson in final submissions: that Mr Broderick had retracted the platform without telling the plaintiff that he had done so and that this was why the plaintiff stepped backwards and fell. 52The kernel of a new case was contained in the particular of negligence (f) alleged against Centennial: namely, that it had failed to warn the plaintiff that the platform had been retracted. This particular had been added to the pleading by leave granted on the first day of the trial. Although it was not opened, I will nonetheless deal with it since it was explored to some extent in the evidence and the parties addressed me on it. 53The genesis of the new ground appears to have been an entry in the Incident Report which identified, in Section B2: Recommendations, the following action: "Communication issue - 2nd operator retracted the platform to full location - 1st operator was not aware of this function being done." 54Although several employees of Centennial were called, none had written the entry set out above. It was not established who had written it. The plaintiff contended that it was a business record because it was contained in the records of Centennial. Centennial submitted that this part of the document was not admissible to prove the fact as I could not be satisfied that the person who wrote the entry had personal knowledge of what was set out and relied on s 69(2) of the Evidence Act 1995. It submitted that in circumstances where the only two people who could have known what had happened, the plaintiff and Mr Broderick, were called to give evidence, their evidence provided the most reliable account of what happened. 55Centennial also relied on Lithgow City Council v Jackson [2011] HCA 36; 224 CLR 352 to support its contention that the statement was inadmissible as hearsay and not admissible under s 78 of the Evidence Act as a lay opinion. 56In my view there were effectively three statements of fact in the entry: (1)The second operator (Mr Broderick) retracted the platform; (2)The first operator (the plaintiff) was not aware that the platform had been retracted; and (3)Mr Broderick's act of retracting the platform had not been communicated to the plaintiff. 57There was also, arguably, a statement of opinion, namely that there was a "communication issue" although this, in my view, is more accurately characterised as a comment or conclusion. Presumably, the plaintiff also relied on the entry for its inferential possibilities: namely, that the plaintiff fell because Mr Broderick had not told him that he had retracted the platform and the plaintiff did not otherwise know that the platform had been retracted. 58There was no evidence that either the plaintiff or Mr Broderick had told the unidentified person who wrote the entry of any of these matters. Although the Court is obliged to draw such inferences as are available from the document, I do not consider in the circumstances referred to above that I ought draw the inference that the person who filled out Section B2 had spoken either to the plaintiff or to Mr Broderick before filling it in. 59Accordingly, I reject Section B2 in so far as it is to be used for a hearsay purpose. It is not admissible as opinion evidence. 60It is therefore necessary to review, at least in broad terms, the evidence that might otherwise support the plaintiff's new case: that it was the unexpected retraction of the platform by Mr Broderick that caused his fall. 61The plaintiff's evidence in chief on the matter was contained in [23] of his statement dated 23 March 2012: "Unbeknown to me the platform upon which I was standing (which was retractable) had been fully retracted although I was not aware of this at the time. I am unaware as to who it was who retracted the platform. This is only usually done when moving forward in coal cutting operations. The effect of this is to reduce the standing area in the position that I was in." 62There was considerable cross-examination on this topic, as well as other versions of the accident. However when the passage set out above was put directly to the plaintiff, his answer demonstrated that he did not even appreciate that he had ever given such a version of events. The exchange was as follows: "Q. You've said that somebody unbeknowns to you retracted the platform? A. Have I said that have I? Q. You have said that. You don't remember saying that? A. No, I don't." 63In cross-examination, the plaintiff denied retracting the platform himself after Mr Broderick had finished roof bolting but said he was unaware whether Mr Broderick had retracted the platform. He also said: "Q. That is if the platform had been retracted you would have, in preparing to bolt up, have been able to see that it had been retracted, correct? A. Well, I probably just assumed that Lenny [Broderick] had left it out when he bolted. Q. My question is a bit different though. Because of the position which you were working you were able to see with your own eyes whether or not the platform was retracted or extended, correct? A. Well, you're not necessarily looking down all the time at either platform extended or retracted. You're more looking at the conditions you're working in." 64In the various histories the plaintiff gave to Centennial and to doctors, the first history that is in evidence that refers to the platform being retracted was the history recorded by Dr Rushworth on 2 December 2008, in his report of 7 December 2008 as follows: "On this date, he was working underground, fixing mesh to a tunnel wall. He was standing on a machine, and the driver of the machine retracted the platform onto which Mr Quinn was about to step." 65When this history was put to the plaintiff in cross-examination he said: "A. No, I wouldn't have told him that because the driver can't operate the platform on the other side of the miner. He can only operate his side... Q. Did you tell Doctor Rushworth, if we put the driver to one side, that somebody had retracted the platform onto which you were about to step? A. Not that I can recall. I can't even recall attending that meeting and when it was and where it was." 66Dr Rushworth was not a treating doctor. He had been retained by the workers compensation insurer and had been provided with copies of certain relevant documents, not all of which were identified. Although the Incident Report was not identified in terms, it would fall within the category of documents that would be likely to be submitted to a doctor retained for that purpose. Although it was not explored in the evidence, it is at least possible that the provenance of the facts recorded by Dr Rushworth was Section B2 of the Incident Report itself, rather than what the plaintiff told him. At all events, the plaintiff did not accept the history recorded by Dr Rushworth as being true or that he had given such a history. 67Indeed when the plaintiff was cross-examined about the histories he had given to various doctors he said, in answer to a question about what he had told Dr Shatwell: "I don't recall what I told him. I would have told him the same story I just said all along that I avoided getting hit by the rib." 68The plaintiff was cross-examined about a file note dated 26 November 2009 which recorded a conference between the plaintiff and his legal representatives. Relevantly, the file note records: "Platform had been 'drawn in' because they were going to move forward." 69Mr Broderick's evidence on the topic is set out above. For the reasons given I am not satisfied that Mr Broderick retracted the platform, or that if he did, he did not tell the plaintiff that he had done so. Further, I am not satisfied that the plaintiff did not know that the platform had been retracted. I am also not satisfied that, even if the platform had been retracted, it had anything to do with the plaintiff's fall. 70The plaintiff has failed to establish that any act or omission on the part of either of the defendants was negligent or causative of his fall. Accordingly, the plaintiff must fail. 71However, although I have found that the defendants are not liable to the plaintiff, it is desirable that I proceed to make findings as to damages: Wolfenden v International Theme Park Pty Limited [2008] NSWCA 78 at [6], per Giles JA. I have done so on the hypothetical basis had I found both defendants liable. Assessment of damages Findings of fact 72The plaintiff's earning capacity at the time of the accident was $1,350 net per week. He was, as a result of his fall, unable to continue with his usual duties. He had time off work after the accident and returned to work to perform alternative duties, which included spray painting, grinding and general cleaning. He performed alternate duties at the mine itself and also at a workshop operated by Coal Mine Services at Tomago. Although he did not return to full-time work, he did manage to work seven-hour shifts on three consecutive days. 73During the period after the accident he had treatment which included physiotherapy, hydrotherapy and lumbar nerve blocks. The transforaminal injections provided some relief of temporary symptoms in his left leg. 74Prior to 19 April 2007 the plaintiff was a very keen golfer and had a handicap of two. Because of the injuries he sustained to his back on that date, he has been unable to play golf, which is a matter of considerable regret to him. 75On 18 February 2008, the plaintiff was involved in a motor vehicle accident. The force of the impact caused the pain in his back to increase substantially. The plaintiff returned to light duties on 25 March 2008. He last performed physical work for Coal Mining Services in February 2009. On 11 May 2009, the plaintiff was admitted to St George Hospital where he underwent a L4/5 disc replacement and a L5/S1 anterior lumbar fusion. 76Coal Mining Services terminated his employment on 29 October 2009. The plaintiff was upset by this termination and sought that his employer reconsider its decision since he believed and hoped that he would be able to manage some form of alternate duties. The plaintiff became depressed as a result of his disabilities and his incapacity for work. 77He attributed the loss of his relationship with his partner in December 2009 to his inability to deal with his injury, the change in his lifestyle and the reduction in his income occasioned by his being on workers compensation benefits rather than his full wage. 78From the time of the termination of his employment until the date of trial, the plaintiff has neither sought nor engaged in remunerative employment. 79The plaintiff subsequently commenced a course of study at TAFE in Community Services Work. He hopes to complete this course in November 2012 and expects to find full-time remunerative employment in that area from that time. He is confident of finding employment because there is a dearth of male community services workers and much demand for them, particularly as youth workers. 80It is common ground that the plaintiff is and will continue to be unfit for his pre-injury employment. Relative causation between the mining accident, the motor vehicle accident and an underlying degenerative back condition 81The most significant issue in the quantification of damages is the extent to which the plaintiff's accident the subject of the proceedings is causative of his present and future diminution in earning capacity. The other factors which are said to contribute to the ongoing diminution are: first, the plaintiff's pre-existing degenerative condition, which was, prior to the accident, asymptomatic; and secondly, the motor vehicle accident in February 2008. 82The plaintiff has established a prima facie causal connection between the injuries he sustained in Centennial's mine on 19 April 2007 and his continuing incapacity. The defendants submitted that the plaintiff's present incapacity was due both to a pre-existing degenerative condition and to the motor vehicle accident and spinal surgery, which they submitted was itself a consequence of the motor vehicle accident. It is well established that a case such as the defendants propound requires evidence to prove the probable future effects of the progressive pre-existing condition and the supervening effects of the motor vehicle accident with a reasonable degree of precision in order that their actual relationship to the incapacity can be assessed and determined: Watts v Rake [1960] HCA 58; 108 CLR 158. 83The parties tendered bundles of medical reports. None of the authors of such reports was required for cross-examination. This practice has been justly criticised: Austin v Director-General of Education (unreported, Court of Appeal: Kirby P, Clarke and Powell JJA, 21 July 1994) and Laxy v IBM Australia Pty Limited (1992) 35 FCR 79, at 86 per Ryan and Higgins JJ. 84There was no objection to the tender of any of the medical reports, except on the basis of Ramsay v Watson [1961] HCA 65; 108 CLR 642: namely that an opinion could only be established if the facts on which it was based were established by evidence. Expert medical evidence relied upon by the plaintiff in relation to relative causation 85Professor Ghabrial, who was retained by the plaintiff's solicitors in January 2010, and whose reports were relied upon by the plaintiff, opined on the relative causation between the mining accident and the motor vehicle accident. He interviewed and examined the plaintiff on 12 January 2010 and 14 September 2011. In a report dated 31 August 2012, but which was prepared a little time after that date, Professor Ghabrial expressed the following opinion which was relied upon by the plaintiff: "In summary I believe that Mr Quinn had an injury to his lower back on 19th April 2007 which was aggravated by the motor vehicle accident of February 2008. This made his symptoms worse although the initial damage was the result of the injury of 2007. Regarding the back and left leg, it is my view that one fifth of the impairment is related to the injury of April 2007 and four fifths of the impairment is related to the motor vehicle accident of February 2008." 86This opinion appears to be broadly consistent with the various histories given by the plaintiff to his treating doctors which indicate that the plaintiff was improving after the mining accident until the motor vehicle accident but that the latter caused him to require spinal surgery, following which it was accepted that he could not return to his previous employment. 87Although Professor Ghabrial refers to the development of underlying degenerative changes, he does not opine on how their effect might be untangled from the effect of the mine accident and the motor vehicle accident. His opinion rests in part on the opinion of Dr Korber, radiologist, whose report was also tendered by the plaintiff. 88The plaintiff relied on the opinion of Dr Vote, spinal surgeon who opined in his report dated 15 February 2010 that his incapacity is "directly due to the incident he describes as occurred in April of 2007". I do not consider that this opinion ought be read as excluding the effects of the motor vehicle accident or as being necessarily inconsistent with Professor Ghabrial's opinion. The report of a Dr Lowy was also relied upon, but as he was not given a history of the motor vehicle accident, his opinion is not of particular assistance in determining relative causation. Expert medical evidence relied upon by the defendants in relation to relative causation 89On the question of relative causation, the defendants relied on Dr Shatwell who opined that the fall in April 2007 caused an aggravation of an underlying degenerative condition and that the relative contribution made by the mining accident and the underlying condition was 10% and 90% respectively. Dr Shatwell considered that the plaintiff sustained a soft tissue injury on 19 April 2007, the effects of which would have settled within a matter of weeks or perhaps a month after that date. 90One of the impediments to an acceptance of Dr Shatwell's opinion is that it rests in part on his having formed an adverse view of the plaintiff's reliability as a historian in so far as he reported his incapacity. Dr Statwell adverted to the discrepancy between the plaintiff's clinical presentation and alleged incapacity and concluded that his main problem was "motivation to return to remunerative employment". Although I did not wholly accept the plaintiff's evidence on liability, I do not consider that he exaggerated his pain or disability in giving evidence. He admitted that he could do various things and that he had tried several activities. Although he had not played golf because of his back, he admitted that he had been camping and fishing. 91Of greater significance, however, is that Dr Shatwell's opinion was not put to Professor Ghabrial who was, as I have said above, not required for cross-examination. I have no means of assessing how Professor Ghabrial would have weighed any contribution of the underlying degenerative disease which the events of 19 April 2007 made symptomatic. I am therefore not prepared to accept Dr Shatwell's opinion since it was not fairly put to Professor Ghabrial. Findings as to relative causation 92Professor Ghabrial's opinion touches on a topic which Dr Shatwell did not specifically address: namely the relationship between the causal effect of the mining accident and the motor vehicle accident. It is reasonable to infer that the defendants did not challenge Professor Ghabrial's opinion because they were prepared to accept it, in the event that I rejected Dr Shatwell's apportionment. Indeed the defendants' written submissions indicated and their oral submissions confirmed that they relied on Professor Ghabrial's opinion as a secondary case, if Dr Shatwell was not accepted. 93For these reasons, the fact that Professor Ghabrial was not cross-examined does not provide an impediment to acceptance of his views. Indeed it provides a further reason to make a finding in accordance with his opinion. That he did not opine on the effect of the underlying degenerative condition means that the defendants have not discharged the onus that rests on them by reason of the statements of principle from Watts v Rake referred to above to establish its relative contribution. 94Accordingly, I accept Professor Ghabrial's opinion, which effectively became, once Dr Shatwell was rejected, common ground. I find that the incapacity suffered by the plaintiff from 19 April 2007 until 18 February 2008 was due to the fall in April 2007. For the month after his motor vehicle accident I find that his incapacity was caused wholly by the motor vehicle accident. After 18 March 2008, his incapacity was due to both causes, but from that time only 20% was due to the fall in April 2007 and 80% was due to the motor vehicle accident. Other issues relating to damages: apportionment between defendants 95Once relative causation has been determined, the mathematical calculations relating to damages have been substantially agreed. It was also agreed between the parties that the defendants' damages ought be apportioned such that Coal Mining Services is 20% responsible and Centennial is 80% responsible. Damages for non-economic loss 96I consider that the injuries sustained by the plaintiff on 19 April 2007 warrant an award of non-economic loss of 25% of the most extreme case. Since the plaintiff's entitlement for a lump sum for permanent impairment as against the first defendant derives from the Workers Compensation Act 1987, he is entitled to 20% (being Coal Mining Services' share) of 25% of $256,900, which is $12,845 from Coal Mining Services. His entitlement to non-economic loss against Centennial derives from s 16 of the Act. He is entitled to 80% (being Centennial's share) of the amount recoverable for 25% of a most extreme case. This amount, by reference to the scale, is $33,800. 80% of that figure is $27,040. Past loss of earning capacity 97It is common ground that the plaintiff was unable to work either wholly or partly for various periods from the date of the mining accident, 19 April 2007, until 18 February 2008, being the date of the motor vehicle accident. This amount is agreed at $41,825, of which Coal Mining Services is liable for $8,365 and Centennial is liable for $33,460. 98I find that the plaintiff's inability to work in the month following the motor vehicle accident was entirely attributable to that accident. Accordingly, his total net loss for the period from 18 February 2008 until 18 March 2008 of $5,400 is not recoverable from either defendant. 99During the period from 18 March 2008 until 11 May 2009, being the date of his spinal operation, the plaintiff was partly incapacitated for work. His loss of earnings for that period is agreed at $61,150, of which 20% is due to the fall in April 2007, as distinct from the motor vehicle accident. Of the $12,230, Coal Mining Services is responsible for $2,446 and Centennial is responsible for $9,784, in accordance with the agreed apportionment. 100There is an issue between the parties about the extent of the plaintiff's incapacity for work after the spinal surgery. The plaintiff's case is that he was wholly incapacitated and that he has endeavoured to retrain himself for an occupation that will be sustainable, having regard to his physical incapacity. The defendants' case is that the plaintiff has a greater earning capacity than he asserted and that he could have worked during the period after the spinal surgery and up to the date of trial. 101The defendants sought to establish that there were other more remunerative options available to the plaintiff other than the one he has chosen and for which he has been trained. The defendants relied on vocational assessments whose authors opined that the plaintiff might able to drive a forklift or work in a warehouse. The authors of these assessments were not called. The histories they were given were materially different from the plaintiff's evidence. I am not satisfied that the plaintiff has a greater sustainable earning capacity than he will have as a youth counsellor. Furthermore, I consider that the plaintiff's prospects of being able to work full-time for the rest of his working life depend on his having a position in which he can stand and sit at will, as I infer he will be able to do as a Community Services worker. None of the options identified by the authors of the vocational assessment reports apparently provided this flexibility. 102Although I consider that the plaintiff could have exercised some earning capacity through the period from the date of the surgery to the date of trial, I find that his decision to undertake a course that would qualify him for new employment in which he could engage for the rest of his working life was a reasonable one and one that was the result of the fall in April 2007. The evidence does not permit me to know exactly how much of this period of time was devoted to the TAFE course. However, I do not consider it to be reasonable to expect the plaintiff, who was recovering from significant spinal surgery, to jeopardise his recovery and his retraining by engaging in casual work even assuming that it had been available to him, having regard to his ongoing disabilities. I reject the defendants' submissions that he could have obtained casual work behind a bar. First, I do not consider such a position to be suitable for someone with the plaintiff's disabilities; and secondly, I am not satisfied that he would have been successful in obtaining such a position, having regard to his residual disabilities. 103For these reasons I find that the plaintiff's loss of earnings for the period from 11 May 2009 to the date of trial was as a result of the defendants' negligence. The amount for total incapacity for this period is agreed to be $228,150 of which 20% is attributable to the fall in April 2007, $45,630. Centennial is responsible for $36,504 and Coal Mining Services is responsible for $9,126, in accordance with the agreed apportionment. 104The plaintiff is entitled to interest under s 18 of the Act. Future loss of earning capacity and future superannuation 105The plaintiff's residual earning capacity as a youth worker is presently in the order of half his uninjured earning capacity as a miner. However, it can reasonably be inferred that he will be able to work to a greater age as a community services worker than as a miner. Further, his services as a community services worker will be more likely to remain in demand than had he continued in his pre-injury occupation as a miner. Accordingly I consider it to be reasonable to allow for a 40% diminution of his earning capacity over his working life, rather than the 50% diminution claimed. 106I accept that the plaintiff intends to work to the age of 67. Accordingly, the multiplier is 822. 107The plaintiff's damages for loss of earning capacity in the future are, accordingly, $1,500 net per week x 822 x 40% less a discount of 15% for vicissitudes, namely $419,220 of which 20%, $83,844, is referable to the fall in April 2007. Of the total of $83,844, Coal Mining Services is responsible for $16,769 and Centennial is responsible for $67,075 in accordance with the agreed apportionment. 108Future superannuation is 11% of the net loss and is accordingly $9,223, of which Coal Mining Services is responsible for $1,845 and Centennial is responsible for $7,378. Out of pocket expenses 109Past out of pocket expenses are agreed at $122,688. Of this sum, $18,840 is referable to the period from 18 April 2007 to 18 February 2008 and $104,381.61 is referable to the period from 18 February 2008 to date. Accordingly the whole of the amount for the former period and 20% of the amount for the latter period is recoverable from the defendants in accordance with the agreed apportionment. 110I allow a total of $5,000 for future out of pocket expenses for which the defendants are responsible in accordance with the agreed apportionment. Fox v Wood component 111I record the parties' agreement that the taxation deducted from weekly benefits paid from 19 April 2007 to 18 February 2008 is $10,112 and the taxation deducted from weekly benefits paid from 18 February 2008 to date is $34,876.13. Conclusions 112The findings I have made above are sufficient for damages to be calculated in the event that my judgment that the defendants are not liable to the plaintiff is overturned. Orders 113For the foregoing reasons I make the following orders: (1)Judgment for the defendants. (2)Dismiss the cross-claims. (3)Direct that any party who, or which, seeks a costs order different from that set out in (4) below, make such application within seven days of these reasons. (4)If no application is made within seven days for an order different to that set out in (3) above, order that the plaintiff pay the defendants costs of the proceedings. ********** Amendments 05 November 2012 - para 71 - line 1 'now' changed to 'not'para 95 - line 3 'defendants their' changed to 'parties that the defendants' Amended paragraphs: Paragraph 71 and 95 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2012