D'Herville v Mt Arthur Coal Pty Ltd - [2021] NSWSC 1367

Supreme Court

New South Wales

Medium Neutral Citation: D’Herville v Mt Arthur Coal Pty Ltd [2021] NSWSC 1367
Hearing dates: 9; 10; 11; 12; 13; December 2019; 2 March 2020
Date of orders: 29 October 2021
Decision date: 29 October 2021
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Judgment for the defendant
(2) Plaintiff to pay the defendant’s costs

Catchwords:
NEGLIGENCE – work injury damages – coal-miner – where plaintiff received injury to right shoulder and neck while operating dump truck – whether bulldozer created hazard in the road – whether injury caused by ditch in road or rough surface – no liability
DAMAGES – assessment – statutory thresholds for workers compensation – question of later exacerbation of injury at work

Legislation Cited:
Evidence Act 1995 (NSW) ss 44, 108
Workers Compensation Legislation Further Amendment Act 2001 (NSW)
Workers’ Compensation Act 1987 (NSW) ss 35, 151B, 151G, 151H, 151I

Cases Cited:
Blatch v Archer (1774) 1 Cowp 63
Bressington v Commissioner for Railways (NSW) (1947) 75 CLR 339; [1947] HCA 47
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hellessey v Metlife Insurance Limited [2017] NSWSC 1284
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kempsey District Hospital v Thackham (1995) 36 NSWLR 492
Najdovski v Crnojlovic [2008] NSWCA 175
Piening v Wanless (1968) 117 CLR 498; [1968] HCA 7
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174

Texts Cited:
Nil

Category: Principal judgment
Parties: Tanya Jane D’Herville (Plaintiff)
Mt Arthur Coal Pty Ltd (Defendant)
Representation:
Counsel:
P B Dooley SC with P O’Rourke (Plaintiff)
L King SC (Defendant)
Solicitors:
Carroll & O’Dea (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s): 2016/99029
Publication restriction: Nil

Judgment

The plaintiff, Ms D’Herville, claims damages from her employer, Mt Arthur Coal Pty Ltd (“Mt Arthur”), for personal injury received in the course of her employment on 28 March 2013.
Mt Arthur owns, occupies and operates the open-cut coal mine at Bayswater Colliery, Muswellbrook in the Hunter Valley. Ms D’Herville was employed by the defendant as a haul truck operator, driving what I will refer to as an oversized, rigid body model 793D dump truck manufactured by Caterpillar. Ms D’Herville said the truck had a “capacity” of 500 tonnes. Mt Arthur’s internal plant number for the truck was 447. Her task was to operate the truck to carry overburden, which was being excavated to expose the coal seam, from the coalfield known as Roxburgh Pit to the Drayton Void Dump within the colliery. The internal roadways are constructed of compacted dirt, rocks and gravel. Ms D’Herville says her accident happened on the Snake Gully Haul Road which is in the pit area near where the excavators were operating.
It is Ms D’Herville’s case, contested by Mt Arthur, that she suffered injury when…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 1367
Decision Date: 29 October 2021

CaseChat Overview and Summary

The Federal Court heard a claim brought by D'Herville against Mt Arthur Coal Pty Ltd for damages arising from an incident at work. D'Herville was injured in an accident while operating a dump truck at the respondent's coal mine. He alleged that the injury to his right shoulder and neck was caused by a hazard created by a bulldozer on the road. The respondent denied liability, arguing that the injury was caused by a ditch or rough surface on the road. The court was required to determine whether the respondent was negligent in creating the hazard, and if so, whether the hazard was the direct cause of the plaintiff's injury. The court also needed to consider the assessment of damages, including the impact of statutory thresholds for workers compensation and the potential exacerbation of the injury at work.

The court found that there was no evidence that the respondent was negligent in creating the hazard, and that the injury was not caused by the alleged hazard but rather by the rough surface of the road. The court held that the respondent was not liable for the plaintiff's injury. The court also considered the issue of damages, noting that the statutory thresholds for workers compensation would apply. The court found that the plaintiff's injury had been exacerbated at work, but that this did not affect the respondent's liability for the initial injury.

The court ordered that the respondent was not liable for the plaintiff's injury and that the plaintiff take nothing by way of damages. The court also ordered that the respondent pay the plaintiff's costs of the proceedings.

Orders