Causation, quantum

Tyndall v Kestrel Coal Pty Ltd (No 3) [2021] QSC 119
Supreme Court at Rockhampton
Justice Crow
27 May 2021

Background

Mr Tyndall was a right handed coal miner who was 50 years old at trial. He alleged he sustained a vibration induced white finger syndrome on his left ring finger as a result of driving two specific types of loaders over a period of time between 1 September 2015 to 1 May 2016.

Liability

The main issue in dispute at trial was whether, in operating the loaders the plaintiff was exposed to excessive hand arm vibration which caused vibration induced white finger syndrome.

Prior to the period in question, one of the two types of loaders had been assessed by VIPAC as posing a risk of whole-body vibration if operated for more than two hours per shift.  Neither loader was assessed for any risk of hand/arm vibration.

Mr Tyndall’s evidence was that the vibrational effect on his left hand when he operated the EIMCO loaders felt the same as the Jug O Naut loaders which had been tested for whole body vibration.

Whilst the author of the VIPAC report gave evidence at trial he acknowledged that a risk of whole-body vibration does not equate to a risk of hand-arm vibration and vice versa.

The employer’s case was that there was no evidence that Mr Tyndall was subjected to excessive hand/ arm vibration from his operation of the loaders during the relevant period and that his condition was caused by a number of factors which included prolonged heavy smoking habit, lichen sclerosis, pre-existing history of anxiety, exposure to heavy manual handling duties and vibration in the fishing industry, boiler-making and underground mining prior to the relevant period together with pre-existing Buerger’s disease.

Judgement / findings

The court formed a good overall impression of Mr Tyndall as a witness and accepted that Mr Tyndall’s actual time spent operating the two loaders significantly exceeded that reflected in the available records from the employer, both in terms of number of shifts during the period and number of hours per shift.

The court accepted Mr Tyndall’s evidence that that the vibrational effects of the EIMCO loaders were the same of those of the Jug O Naut.

The court found that the employer’s breaches of duty were its failures to warn Mr Tyndall of the risk of vibration induced injury and how to minimise it, and its failure to limit Mr Tyndall's operation of the loaders to no more than two hours per shift recommended in the original VIPAC report.

The court concluded that causation was established, within section 305D of the WCRA,  based on a combination of Mr Tyndall’s own evidence, the opinion of vascular surgeon Dr Cohen and the significance of its findings as to when Mr Tyndall’s left hand became symptomatic, relative to the period of exposure in question.

The court determined that, in the absence of the white finger syndrome, Mr Tyndall was likely to have remained in the mining industry until age 67 earning approximately $2,400 net per week and that he had been left with a residual earning capacity of $750 net per week.

As a result, the court assessed damages at $1,483,318.57

Discussion / implications

The judgment:

• reinforces the significance of the trial judge’s assessment of the plaintiff as a witness;
• shows that, even in the absence of relevant expert liability evidence, conclusions may still be drawn from the plaintiff’s own evidence and the medical opinion which enabled the court to find that the plaintiff was exposed to excessive hand/arm vibration, which caused his white finger syndrome.