The underground miner worked as a “nipper” at the Fosterville Gold Mine near Bendigo for about three months from December 2017. At the end of a shift in early March, he was struck in the head and right shoulder by a large rotating bolt attached to a boom on a machine known as a “jumbo”. It was being operated by a co-worker. 

The worker claimed damages for negligence against Fosterville Gold Mine, his employer and the occupier of the mine where the incident occurred.

Fosterville admitted the incident was caused by its negligence.

The issues for determination were an assessment of damages to compensate the worker and whether there was any contributory negligence on the worker’s part.

The worker had suffered, and continues to suffer, from a condition known as “complex regional pain syndrome (CRPS) type I” which is characterised by continuing regional pain that is seemingly disproportionate in time or degree to the usual cause of any known trauma. 

In addition to CRPS type I, the worker also alleged that, as a result of the incident, he suffers from an adjustment disorder with depression and anxiety. 

Fosterville argued that the worker had not proved on the balance of probabilities that he suffered from CRPS type I and that he did not have any recognisable mental illness.

In the hearing, Judge Steven Moore established that there was no contributory negligence from the worker and no occasion for apportionment for contributory negligence.

Justice Moore heard that at the time of the incident, Fosterville didn’t use a formal work system for its “jumbo” teams, and was ripe for a “breakdown in communication.

"It is in the context of this unsatisfactory system of work in which the [worker] was doing no more or less than what the system required, that he suffered injury as a result of a momentary lapse of concentration or inadvertence. In such a case, there is no room for a finding of contributory negligence,” the judge said.

The question in the case then concerned the employee’s level of work capacity and whether he was actually experiencing CRPS symptoms.

The medical evidence revealed the worker effectively lost the use of his dominant right arm as a result of his physical injury. In addition to the effective loss of a limb, the worker also endured chronic pain on a daily basis which, together with the loss of the use of his arm, severely curtailed his capacity to pursue his professional and personal aspirations.

The worker’s prognosis was poor and unlikely to change in the foreseeable future.

Additionally, Justice Moore acknowledged evidence from several psychiatrists who were treating him that the injury had left him with psychiatric after-effects in the form of an adjustment problem accompanied by sadness and anxiety.

"The [worker] has suffered physical and psychiatric injuries as a consequence of Fosterville’s breach of the duty of care it owed to him as an employee. The injuries sustained by the [worker] have had very significant adverse effects on his life; those effects will likely continue for the rest of his life,” Justice Moore said.

The court assessed damages at $450,000 for pain and suffering, $295,072 for past economic loss, and $1,207,546 for future loss of earnings, combining for a total of $1,952,618 in compensation.

Read the judgment

McGiffin v Fosterville Gold Mine [2022] VSC 665 (4 November 2022)