The plaintiff, a 50-year-old man, noticed pain in his left ring finger in March 2016. He had a long history of manual employment. Half-way through grade 10, he left to become a deckhand on a fishing trawler where he processed catches, cleaned, fixed nets and cooked. After 10 years, he progressed to a skipper; he ensured the crew was safe, avoided collisions and caught seafood. After another 10 years the plaintiff became a trade assistant to boilermakers. The plaintiff carried and distributed equipment, set up tarps, replaced wires in welders and performed grinding duties. He was employed as a mine labourer three years later. The role involved heavy manual duties.
From September 2011 the plaintiff worked for the defendant, Kestral Coal Pty Ltd, as an operator/maintainer at the Kestrel Mine. He performed a variety of tasks, but predominantly held the position ‘outbye’. The plaintiff drove loaders (which were used to collect and move coal), performed road work, emptied rubbish bins, salted the roads, and obtained equipment.
In February 2016, the defendant reduced the number of employees authorised to drive the loaders, to the plaintiff and another worker. The other authorised driver had 20 years’ experience in mining. The plaintiff operated the employer’s loaders 7-9 hours a day. The employer had two loaders. They were made by Eimco and Jug O Naut. The Jug O Naut loaders were tested and found to have a health limit of 2 hours.
The plaintiff’s treating doctor diagnosed him with white finger syndrome from prolonged exposure to vibrations produced by driving the loader vehicle. Driving involved a great deal of gripping on to the loader with his left hand. The plaintiff was right hand dominant. He also suffered depression and anxiety subsequent to his injury, with the latter impacting his ability to provide accurate evidence on a number of occasions.
The defendant’s doctors diagnosed the plaintiff with Buerger’s Disease; a condition which is predominantly caused by smoking. Being a heavy smoker throughout his adult life, the plaintiff was notably at risk for ischemic disease. One of the doctors was of the opinion that the injury was caused by either blunt force trauma or vibrations.
The issues for determination by Justice Crow were as follows:
- What the plaintiff’s injury was;
- Whether the plaintiff’s injury was foreseeable and not insignificant, and whether it was reasonable to take precautions against the injury;
- Whether the plaintiff’s injury was caused by his previous employment and medical history, or from the instances pleaded by the plaintiff; the operation of the large vibrating machinery;
- Whether the plaintiff had failed to mitigate their loss by failing to undertake light or sedentary work;
- The damages recoverable by the plaintiff.
The defendant admitted breach of duty of care in respect of the plaintiff’s operation of the Jug O Naut loaders but disputed a breach in respect of the Eimco loaders. Justice Crow accepted evidence from the plaintiff that the effects upon his body from driving the machines were the same with both types of loaders and that the loaders had a vibration level rating which posed a high risk.
His Honour found that the defendant breached its duty of care in three respects. First, it failed to educate the plaintiff as to the potential harm of using the equipment he was instructed to use. Second, the defendant failed to implement a system of work which did not expose the plaintiff to unsafe vibrational forces. Last, the defendant failed to test the vibrational forces of the Eimco loaders as recommended by a third party’s (VIPAC Engineers and Scientists’) report. Additionally, the defendant required the plaintiff to operate the vibrational machinery in excess of what was recommended by VIPAC’s report.
There were a couple issues concerning the quantification of vibrational forces emitted from the loading machines. The vibrations of the Jug O Naut loaders were measured by whole-body vibration measurements. In reality, the plaintiff gripped the loader’s controls, and the vibration was amplified through his hand. However, as Justice Crow noted, the machines were still used longer than recommended. Moreover, the vibrational force of the Eimco loaders was also not measured.
Calculating how much time the plaintiff had spent driving the machines was problematic. The defendant was unable to produce operator machine logs to accurately identified the times and duration the plaintiff operated the machinery. The plaintiff’s recollection that they usually drove the loaders 7-9 hours per shift was accepted.
On causation, Justice Crow reasoned that the Court’s role was not to seek a level of scientific certainty but to apportion legal responsibility. The plaintiff was required to show it was more probable than not that the defendant’s negligence caused the injury or harm. Such an exercise involves the balance of probabilities but not certainty. The Court was satisfied that it was more probable than not that the defendant’s breach caused the plaintiff injury.
Justice Crow did not accept the diagnosis of Buerger’s Disease. The defendant’s doctors (Dr Forester and Dr Mackay) could not explain why the plaintiff had symptoms only in his left ring finger. It is uncommon for Buerger’s Disease to be limited to a person’s hands (5% of patients). The condition presents itself in 3 or more limbs in 85% of the patient population. The plaintiff had adequate blood flow in both their feet.
Additionally, Dr Mackay had previously diagnosed the plaintiff with vibrational induced white finger syndrome but mistakenly believed the plaintiff to be using vibrational handheld tools. He was unable to explain why vibrational loaders which the plaintiff was required to grip forcefully would not cause the same injury. His changed diagnosis was also based upon a misstatement of facts; that the plaintiff had banged his hand on a loader receiving a blunt trauma injury. The plaintiff’s treating doctor had performed several rigorous tests; and that diagnosis, along with the opinion of plaintiff’s independent medico-legal, was preferred. The Australian Standard for mechanical vibration ISO5349.1 2013 (which was admitted into evidence) also notes that the connection of a hand to a vibrational source may considerably affect vibrational magnitude.
On 14 April 2016 the plaintiff was found to have drugs in his system and could not return to work. However, he had a long history of employment at the company and was highly regarded by his peers and supervisors. The plaintiff’s supervisor, Mr Merrick made several attempts to return the plaintiff to the workplace, not knowing he had suffered an injury to his hand and as far as Mr Merrick was concerned, as soon as the plaintiff obtained a clear drug test, he would have returned to work.
During phone calls between the plaintiff and Mr Merrick, the plaintiff informed Mr Merrick that he would not be returning to work as “his finger’s fucked” and his “solicitor had told [him] not to”.
The plaintiff, together with Rio Tinto’s nurse, the plaintiff’s GP and WorkCover representatives attempted to secure the plaintiff light or sedentary duties with the defendant. These attempts were unsuccessful. This coupled with the plaintiff’s refusal to return to work, formed the basis of an argument by the defendant that the plaintiff had failed to mitigate his loss.
Justice Crow noted that a defendant is required to expressly plead a failure to mitigate and the particulars of the basis for such an allegation. His Honour determined that the plaintiff’s employment with the defendant was terminated on mutual terms. The plaintiff had not failed to mitigate his loss by agreeing to termination of his employment with the defendant.
The “suitable duties” offered by the defendant to the plaintiff were office duties. The plaintiff had never performed office duties before. He was computer illiterate. He was anxious and depressed with no skill or ability to perform office duties. The plaintiff was not precluded from recovering damages for loss of earning capacity because he left employment that was unsuitable.
In determining the plaintiff’s residual earning capacity, the evidence of Ms Sanja Zeman, Occupational Therapist, was preferred to that of the defendant’s expert. Justice Crow found that the plaintiff was capable of light and sedentary employment. However, the roles for which he was considered suited by Ms Zeman were narrowed by His Honour, having regard to the plaintiff’s psychiatric illnesses and inability to use his left hand for any significant activity.
Justice Crow assessed the plaintiff’s damages as follows:
General Damages $11,990
Past economic loss $484,154.08
Interest on past economic loss $16,149
Past loss of superannuation $41,222.05
Future economic loss $875,000
Future loss of superannuation $99,838
Medical Expenses $4,421
Expenses paid by WorkCover $11,625.43
Travel expenses $697.18
Interest on out of pocket expenses $85
Fox v Wood $21,530.46
Total (clear of WorkCover refund) $1,483,318.57
Cases involving vibratory forces are often complex and expensive to litigate for the parties. The plaintiff’s case on liability was made easier by the fact that the employer knew or ought to have known that the plaintiff was operating loaders in excess of the health limits of one of the machines. This decision should be taken as a warning to employers in the mining and construction industries who employ staff to operate equipment that vibrates. If employers depart from the recommended health limits of their equipment – they may be found liable in negligence for injuries sustained. For more information on cases involving injuries from vibration or a sudden jolt and other relevant matters considered by the Courts, see our previous article.