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Written by Peter Carter

July 31, 2013

An underground coal miner whose back “exploded in pain” when hauling equipment along a mine tunnel has been awarded a fraction of the damages demanded as a result of the accident.

Timothy Klein claimed to have been directed by a supervisor to use a strap sling – with arms overhead his body – to drag a 180 kg “shearer block” along the coalface at North Goonyella Mine 160 km west of Mackay.

Not held to be deliberately dishonest, Klein – a former army cook – “was not an impressive witness” and “came to believe things that are inaccurate and he came [to court] to argue his cause. This has led to embellishment and reconstruction.”

He called no eye-witness testimony during the four-day Rockhampton trial to confirm the occurrence. But neither did his employer – SBD services, a specialist underground coal mining contractor – have anyone to support its contention that no such incident ever occurred.

Every witness having some experience with underground mining indicated that machinery would normally have been utilised for movement of such a heavy object. Despite serious misgivings, His Honour was persuaded that such an event had indeed occurred in February 2009 and that as a result, SBD was primarily liable for damages for the resulting injury.

SBD nevertheless argued that Klein must bear some responsibility for the injury and contended for a finding of contributory negligence against him. He had, they said, launched himself into the task without following the required SLAM – an acronym for stop, look, assess and move – protocol drilled into workers for addressing all unusual tasks.

The court agreed and apportioned Klein’s share of accountability at 25% to be deducted from whatever damages it assessed attributable to the incident. Orthopaedic surgeons Mark Shaw and Dr Cook agreed the plaintiff had suffered an internal disruption of the L5/S1 disc but Shaw was of the view that it had, in fact, originated during a period of military service in the catering corps in 1996-97.

Klein had army medical treatment in October 1996 after falling onto his sacrum whilst playing cricket. With a range of movement reduced by 20%, he reported: “pain in L5/S1 area radiating down left leg…unable to do trunk rotations”. In February 1997 the medical file showed “continuing back pain for 6-8 mths… work lately has required lifting…now have problems doing daily tasks. appeared uncomfortable and in pain with stabbing pain radiating down both legs”.

Dr Cook thought that Klein had made a complete recovery from these episodes particularly as he subsequently passed an army  “combat-ready assessment”.   He believed that the whole of Klein’s current complaints had originated in the Goonyella mine tunnel. Unfortunately for Klein, Dr Cook’s opinion was disregarded with the court noting “Dr Shaw’s analysis provides a more persuasive interpretation of the plaintiff’s history”.

A further blow to the plaintiff’s case was his passing with flying colours a “Kraus-Weber test” medical assessment take in March 2009 when he applied for a position to another mining company. He also fatally declared in a questionnaire for the examining doctor that he had fully recovered from the earlier mine tunnel accident.

His protest from the witness box, that such declaration was made only for the purpose of securing employment, fell on deaf ears. As a result, the contention that participation in the mining industry was now beyond him, was rejected by the court.

Loss of income up to the date of the trial was assessed at $155,000 and a further $150,000 was allowed for diminution in future earning capacity, assessed on a global basis even though  “the plaintiff might on some views be much the same condition now irrespective of the injury”.

Klein’s damages were totalled at $387,000 taking into account the 25% deduction slated home to the plaintiff . The North Goonyella Mine is a longwall mine producing export premium coking coal owned by Peabody, the world’s largest private-sector coal company.

Longwall mining was developed in England in the late 17th century by undercutting the coal along the width of a broad coal face and allowing the roof and overlying rock to collapse into the void behind while maintaining a safe working space along the face for the miners.

Klein v SBD Services Pty Ltd [2013] QSC 134 Rockhampton McMeekin J published 18/07/2013

Categories: Personal Injury , Litigation & Law Practice

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