worksafe qld

Vibration 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.

Worksafe QLD

 

What's New

Charges laid over silica dust exposure

Vibration Causation, quantum

COVID-19, Safe-Distance technology by Reactec

HAVs has real-world implications for employees and employers alike

JEA Technologies and Easy Dairy Automation Systems

JEA Linecard

FLASHOVER CAN BE A KILLER!

JSP Force Typhoon™ 8 Half Mask Respirator used in the Australian Powder Coating Industry

JSP Filterspec® PRO Goggle FFP3V Valved used in the Australian Powder Coating industry

Introducing the Filterspec® PRO Goggle FFP3V Valved

Introducing the JSP EVO® 6100 Full Brim Wheel Ratchet

JSP EVO®VISTA® Lens coming to Australia in 2021

Perth father first in Western Australia to launch legal action over silicosis related to engineered stone

POWERCAP® INFINITY® 4 IN 1 PROTECTION

Sonis® ear defenders - SERIOUS NOISE REDUCTION™

JSP Introduces the Force Typhoon™ 8 Half Mask Respirator

Experience the 10th Gen Power Full-sized PC Performance in a tiny footprint

Use Interactive Touch Screens to connect with your customers in retail.

JEA Technologies introduces a range of Antibacterial Touch Monitors

Introducing the Signature Pad signotec Zeta

Papercast unveils the new 9.7” e-paper passenger information display

Engineered Safety Illumination

Hover Touch - A touch screen that does not need to be touched

Integrated Helmet Communications for Mining, Industrial and Construction industries

New ZYBRID® VK – An ideal solution for Hygienic, all glass, Medical and Industrial Touchscreens

Zytronic Touch Screen performance in extreme wet weather conditions

Premium Embedded PCAP Open Frame Touch Monitors

Live track exposure with Reactec's new Bluetooth mobile app

Reactec seeks international growth oppotunitites in Australia and Japan

Cough Guard 2 gives Crystal Clear Coverage

Just a quick couple of cuts ........

KOE Industrial LCD Display Modules from JEA

Rock solid reliability – how Zytronic’s rugged touchscreens are helping improve quarry efficiency

Dust containing crystalline silica - what you need to know from WorkSafe Victoria

Tony Ryan shares his story; 15 to 65 in the building industry

Silica dust alert from WorkSafe Victoria

JEA Technologies to exhibit alongside Reactec at the 2019 Workplace Health & Safety Show

Announcing the RASOR safety device

Building products firm, Forterra, beefs up protections for it's workers with HAVwear

ZXY500 touch technology is just the (movie) ticket

Silica dust - a cancer risk you cannot see

JEA Technologies is announced as official distributor for Elitegroup Computer Systems

DH310 Media PC

New generation of control board released from Zytronic

Be Seen, Be Safe

Balfour Beatty Utility Solutions feels consequences of not protecting workers against HAVs

New 13.3" All In One (AIO) and Open Frame Touch Monitor

JEA Technologies is exhibiting at the Workplace Health & Safety Show from 23rd - 24th of May

Institue of Occupational Medicine (UK) validates HAVwear data collection

J. Murphy & Sons Limited - Tackling hand arm vibration

JEA Technologies has become the Australian distributor for Papercast products

Next Generation of Banknotes: $10 Design Revealed

Hand Arm Vibration Safety

Reactec wins major construction industry award in the UK

Reactec wins health and safety award at Speedy Expo event

Continental Tyres Australia chooses Chameleon by iSIGN Media Corp

Chameleon technology by iSIGN hits the mark in Australia

Safety in Action Show - Melbourne

Force Sensing Technology pushed by Zytronic Displays

Zytronic touch screens find the way in Asia’s leading integrated resort through JEA Technologies and Abuzz Solutions

23% of users abandon apps after one use

JEAs new commercial and industrial 21.5" AIO PC

iSIGN Media and Dynamic Digital Strategic Solutions Announces a national mobile network trial with ScriptRelief for 225 locations

New AU $5 banknote, software release BB AU1183 & FL AU1520

Chamelon for Digital Signage used in Traralgon ARB store

New 18.5" and 21.5" touch monitor for wall/pole mount applications

RX10 and RX10H, the thinnest and lightest handled 2-in-1 10.1" tablet

iBeacon vs Smart Antenna

JEA announces a new 42" PCAP Multi Touch Monitor

JEA Technologies announces collaboration with eHealth Consortium Group on Smart Antenna integration for public hospital and health services

The Chameleon Solution from JEA Technologies

JEA releases a new range of open frame multi-touch monitors

The worlds brightest LCD - DS551LT7

Zytronic introduces ZYFILM Multitouch - a rollable, flexible Projected Capacitive touch film

JEA Technologies is appointed the Australian distributor for iSIGN Media

Robustel GoRugged M1000 Industrial 2G/3G/4G USB Modem Enables Mobile Ticket Vending Machine

JEA Technologies

Unit 36, 41-49 Norcal Road,
Nunawading,
Victoria, 3131,
Australia

PH: +61 3  8736 0330