Davies v Whitehaven Coal Mining Limited

The appellant, Mr Davies, appealed to the Court of Appeal of New South Wales against a decision of the primary judge who had dismissed his claim for damages for personal injury sustained while working for the respondent, Whitehaven Coal Mining Limited. Mr Davies was injured when he fell while descending from the top of a load haul dump machine (LHD) which he had climbed to refuel.

The central legal issues before the Court of Appeal were whether Whitehaven Coal Mining Limited had breached its duty of care to Mr Davies by modifying the LHD in a way that created an unnecessary risk of injury, and whether Mr Davies had been contributorily negligent. The modification in question required Mr Davies to climb to the top of the LHD to refuel, a task previously performed from the ground. The court also considered whether the existing rungs and handholds on the LHD constituted adequate safeguards, and whether Mr Davies' prior successful ascents and descents of the machine negated the employer's alleged negligence or established contributory negligence.

The Court of Appeal found that the primary judge had erred in dismissing the claim. Their Honours reasoned that the modification to the LHD, which necessitated climbing to the top for refuelling, introduced a foreseeable risk of injury that was not adequately addressed by the employer. The court noted the absence of evidence of any risk assessment being conducted in relation to this modification. Furthermore, the court found that the employer's reliance on Mr Davies' prior uneventful climbs to argue contributory negligence was misplaced, particularly given Mr Davies' evidence that he was gripping the handholds at the time of his fall.

Consequently, the Court of Appeal allowed the appeal, set aside the judgment and costs order of the primary judge, and remitted the proceedings for an assessment of damages. The respondent was ordered to pay the appellant's costs of both the proceedings and the appeal.