JR: Answer the question correctly – round 2

Haylett v Hail Creek Coal Pty Ltd & Anor (No 2) [2014] QSC 280

I refer to my earlier post and McMurdo J’s decision and note on its second attempt, this time before Dalton J, again r.46 of the Coal Mining Safety and Health Regulation 2001 (Qld), was not complied with. Namely, that the medical assessment was not carried out on information contained in the prescribed form, but on advice provided to the doctor extraneous of the form.

The genesis of the judicial reviews stems back to a judgment by Baulch DCJ, wherein an assessment had been made of $500,000.00 for future economic loss and the Applicant/Plaintiff’s inability to work as a machine operator on the coal mine with machines that vibrated:

Baulch DCJ:

His employer has since retrained him, and he now works as a member of a drill crew at the mine. …

The parties are agreed about the great majority of the heads of damages that I must consider. It remains for me to consider the amount that should be allowed for general damages, and the amount that should be allowed for future economic loss.

… Now whilst it is true that he is able to maintain himself at work, he does say with some difficulty, and it has been necessary for his employer to retrain him so that he can maintain employment by performing a less strenuous activity.

I turn now to future economic loss. The starting point, I think, is to determine the plaintiff’s pre-injury earning capacity and then consider the extent to which that capacity has been diminished. Because the plaintiff, having returned to work, having been retrained and resumed full time work, has earned in excess of what he earned pre-accident, some adjustment to his net earnings for the 2007/2008 financial year might be appropriate to allow for the fact that in the event that his working life is interrupted as a consequence of this injury, the consequential loss should be measured against the earnings that he will be receiving when he commences to suffer that loss.

[The judge set out the applicant’s net earnings between 2009 and 2013, which showed an increase] … If the current trends continue at the mine, then his earnings are likely to increase. The future, though, of the coal mining industry, like its past, must be approached with some caution. …

Because he is aged 42 at present, he has between 23 and 25 years of working life ahead of him … [i]t seems to me that it is unlikely that wages will go backwards, and so there is a good argument in favour of using the present earnings as the basis for the assessment of future economic loss, …

It is significant to note the plaintiff has acquired a new skill as a result of having been retrained by the defendant. Nevertheless, he is left in a position where it is agreed that he is not fit to work in his trade and is not fit to do the work that he was doing prior to injury. In addition, he has lost the opportunity to progress to work as a dragline operator in the coal mine, although I note the evidence that that loss of opportunity may not, in fact, result in any financial loss. While the whole person impairment that has been assessed might seem to be high in respect of the level of painful restriction and incapacity, of which the plaintiff complains, it is a matter that will be of significance to him if he finds himself on the open labour market seeking employment.

… It is impossible to predict with any accuracy what the future will hold for the plaintiff. However, it is in my view unlikely that he will be able to complete his present working life in his present occupation simply having regard to the many variables that affect the coal mining industry. When he does come onto the open labour market seeking employment, he will, in my view, encounter great difficulty in securing similarly remunerative employment, having regard to his history and the extent of his disability.

… Having regard to the plaintiff’s actual disability, his assessed disability, and the matters to which I have referred concerning the difficulties he encounters now and will encounter in the open labour market, I think an appropriate [measure] of damages for future economic loss is $500,000.” (my underlining)

Dalton J:

[9] After McMurdo J’s decision Mr Haylett re-attended on Dr Parker. Once again Dr Parker had a form on which the first respondent had nominated “operator” as the position for which Mr Haylett was to be assessed. On 23 September 2014 Dr Parker ticked the third box: “is fit to undertake the proposed/current position subject to the following restriction(s) …” and added, “unfit for heavy or continuous jarring and vibration; unfit for working above shoulder height; fit for drill rig operation but unfit for heavy haul trucks or dozers”.

[10] On 30 September 2014 Dr Parker was asked by the first respondent to reconsider because he ought to have assessed Mr Haylett against the occupation of “operator” but instead had apparently assessed him against the position of “drill rig operator”. In fact this was the case. Mr Haylett and his union representative had told Dr Parker, and Dr Parker had proceeded on the basis, that Mr Haylett’s position was that of drill rig operator.

[11] Dr Parker then provided another section 4 assessment, this time ticking the last box, “is not fit to undertake the proposed/current position because of the following restriction(s):” and reproduced the three restrictions he had previously listed after the third box. He wrote a letter dated 30 September 2014, acknowledging that he had been asked by the first respondent to review the report and saying:

“I have been asked to assess him for the full and substantive role of a mobile equipment operator. I understand that this includes but is not limited to drill rigs, haul trucks, dozers, graders and water carts.

In light of this, and in spite of the fact that Mr Haylett is able to operate the drill rig, he is clearly unfit for the full inherent duties of the role of operator. I have therefore changed the section 4 report to reflect this.”

[21] The form does not sit comfortably with the regulation in that it does not invite the Nominated Medical Adviser to assess fitness for a task, but fitness for a position, which it contemplates, will be a “generic job title”. Having regard to the statement of principle in Project Blue Sky v Australian Broadcasting Authority[2] as to interpreting legislation, and sets of legislation, in order to give a harmonious result where conflict appears from the language of different provisions, it seems to me that I should interpret the word task in reg 46 to include tasks and then, having regard to the instruction in the regulation to assess in accordance with the form, construe the role of the Nominated Medical Adviser as assessing fitness for the tasks involved in the position nominated by the employer.

[22] Here the position nominated by the first respondent was extremely generic: operator. That was all the information contained on the form. By itself it is wholly inadequate for a medical practitioner to assess fitness. It would be impossible to divine what tasks were required to be performed by someone occupying the position. Some substantive content had to be given to it. In this case that content was by way of information to Dr Parker as to what the role of operator entailed. On 23 September 2014 Dr Parker was told that Mr Haylett was employed as a drill rig operator. On 30 September 2014 he was told that Mr Haylett was to be assessed as to his ability to operate various types of machinery, including machinery which vibrated. The fact that Dr Parker could reach two different conclusions on 23 September and on 30 September shows how his assessment in both cases was dependent, not on the instructions and matters in the approved form, to paraphrase reg 46(3), but upon matters extraneous to it. In those circumstances it does not seem to me that in either case – 23 September 2014 or 30 September 2014 – Dr Parker’s assessment was in accordance with reg 46(3). It was not carried out in accordance with the instructions and matters in the form but in accordance with advice Dr Parker otherwise received. Accordingly I grant the relief sought and declare that the assessment of Dr Parker dated 30 September 2014 was not in accordance with law and is of no effect under the Coal Mining Safety and Health Regulation.

David Cormack – Brisbane Barrister & Mediator

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