Duffin v Mount Arthur Coal Pty Ltd

[2020] NSWSC 229

Supreme Court

New South Wales

Medium Neutral Citation:

Duffin v Mount Arthur Coal Pty Ltd [2020] NSWSC 229

Hearing dates:

25 - 29 March 2019; 9 & 11 September 2019

Date of orders:

16 March 2020

Decision date:

16 March 2020

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

THE COURT ORDERS THAT:

 1) Judgment is entered for the plaintiff. The amount of damages is to be calculated by the parties and my arithmetic is to be checked.

Catchwords:

TORT – Negligence – Breach of duty – Liability – Plaintiff injured while driving a grader on a coal mine haul road – Whether the injury occurred due to collision with a lamination or a windrow

 

TORT – Negligence – Contributory negligence

  DAMAGES – Assessment

Legislation Cited:

Civil Liability Act 2002 (NSW), s 3B
Evidence Act 1995 (NSW), s 69
Work Health and Safety Act 2011 (NSW), ss 18, 19, 20
Workers Compensation Act 1987 (NSW), ss 151G, 151H, 151I, 151K, 151N

Cases Cited:

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345
Blatch v Archer (1774) 98 ER 969
Campton v Centennial Newstan Pty Ltd (No 3) [2015] NSWSC 410
Czatyrko v Edith Cowan University [2005] HCA 14
DC v State of New South Wales [2016] NSWCA 198
Dell v Dalton (1991) 23 NSWLR 528
Fabre v Arenales (1992) 27 NSWLR 437
Fox v Wood (1981) 148 CLR 438; [1981] HCA 41
Government Insurance Office (NSW) v Rosniak (1992) 27 NSWLR 665; [1992] Aust Torts Reports 81-178
Hann v Clarence Colliery [2012] NSWSC 475
Hirst v Sydney South West Area Health Service [2011] NSWSC 664
Jones v Dunkel (1959) 101 CLR 298
Kondis v State Transport Authority (1984) 154 CLR 672
Lee Transport Co v Watson (1940) 64 CLR 1; [1940] HCA 27
Lithgow City Council v Jackson (2011) 244 CLR 352
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Mason v Demasi [2009] NSWCA 227
Mead v Kerney [2012] NSWCA 215
Najdovski v Crnojlovic [2008] NSWCA 175
New South Wales v Doherty [2011] NSWCA 225
O’Connor v Commissioner for Government Transport (1959) 100 CLR 225
Pamment v Pawelski (1949) 79 CLR 406; [1949] HCA 43
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; (1985) 59 ALJR 492
Rail Corporation New South Wales v Donald [2018] NSWCA 82
Sharman v Evans (1977) 138 CLR 562; [1977] HCA 8

Category:

Principal judgment

Parties:

Gemma Ann Duffin (Plaintiff)
Mount Arthur Coal Pty Limited (Defendant)

Representation:

Counsel:
N Polin SC with M Best (Plaintiff)
M McCulloch SC with D Stanton (Defendant)

  Solicitors:
Morgan + English (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s):

2016/70111

Publication restriction:

Nil

Judgment

Witnesses

Background – pre-accident history

Employment at Mount Arthur Coal Mine

How did the accident occur on 6 March 2013?

The confidential report prepared by the defendant

Conversations between the plaintiff and Mr Seabrook after the accident

Post-accident

Evidence the defendant says supports its version of events

Mr Freeman’s evidence and medical report

Factual findings on liability

Liability

Provisions of the Work Health and Safety Act

The plaintiff’s experts’ evidence on liability

Did the defendant provide and maintain a work environment without risks to health and safety?

(a) Reasonable practical preventative measures of obviating such a risk

(b) Was there reasonable care?

Contributory negligence

The defendant’s submissions

The plaintiff’s submissions

Consideration

The plaintiff’s health and employment after the accident

Return to office duties

Termination of employment

Back and right hip injury symptoms

Treatment

Psychiatric injury

Video surveillance

The plaintiff’s credibility

Medico legal assessments

The orthopaedic surgeons

The reports of orthopaedic surgeons Drs Hopcroft and Millons

The joint orthopaedic report

The psychiatrists’ reports

Dr Samson Roberts’ report dated 15 October 2015

Dr Samson Roberts’ report dated 1 March 2017

The psychologists’ joint report

Assessment of damages

General principles

Statistical information

Non-economic loss

The plaintiff’s submissions

The defendant’s submissions

Consideration

Economic loss

Past economic loss

The plaintiff’s evidence

The plaintiff’s submissions

The defendant’s submissions

Consideration

Future economic loss

The plaintiff’s submissions

The defendant’s submissions

Consideration

Fox v Wood

Past and future loss of superannuation

Past out of pocket expenses

Future out of pocket expenses

General practitioner, psychologist and psychiatrist

Medication

Annual services

Further hip surgery

Consideration

Future equipment

Items of future equipment in dispute

Consideration

Future occupational therapy expenses

Hydrotherapy

Past and future domestic care

Past domestic services

The plaintiff’s evidence

The plaintiff’s submissions

The defendant submissions

Occupational therapists’ joint report – Ex D

Consideration

(1) First phase – 6 March 2013 to 30 November 2013

(2) Second phase – 1 December 2013 to 18 February 2015

(3) Third phase – from 19 February 2015 to date of judgment

Future domestic assistance

Judgment

Costs

Judgment

1. HER HONOUR: The plaintiff seeks damages for injuries she sustained in the course of her employment with the defendant. On 6 March 2013, the plaintiff suffered injuries when a grader which she was driving struck a “lamination” in the road, causing her to be thrown around in her seat. The plaintiff suffered resultant physical and psychological injuries.

2. The plaintiff is Gemma Ann Duffin. The defendant is Mount Arthur Coal Pty Ltd. The plaintiff relied upon her court books (Exs B(i) and B(ii)). The defendant relied upon its court book (Ex 5).

Witnesses

3. The plaintiff gave evidence and was cross examined at length. Drs David Millons and Alan Hopcroft, orthopaedic surgeons; David Cockbain and Jason Wagstaffe, occupational health and safety and risk management consultants; Ms Barbara and Ms Zeman, occupational therapists; and Mr Warren John Freeman, psychologist, also gave evidence and were cross examined.

Background – pre-accident history

4. The plaintiff grew up in Muswellbrook, where she attended Muswellbrook High School and completed year 10 in 1988. In 1989, she enrolled at TAFE and studied Administration for a year. In 1990, the plaintiff obtained casual work at Woolworths in Muswellbrook. In 1991, she was transferred to Woolworths Kotara, where she worked for a couple of years as a casual employee.

5. When the plaintiff was 21, she returned to Muswellbrook and worked in the vineyards as a labourer. She then worked as a bar attendant for a few years before gaining casual employment for several years as a leather technician.

6. For six weeks in 1997, the plaintiff worked at the meat works in Aberdeen on a short-term contract, before securing a job as a bar attendant at a hotel and bowling club. She worked at the bowling club for a number of years.

7. Between 2000 and 2007, the plaintiff was employed as a retail assistant at Gould Brothers Timber and Hardware Store.

Employment at Mount Arthur Coal Mine

8. On 14 January 2008, the plaintiff began her employment with Mount Arthur Coal Pty Ltd at the Mount Arthur Coal Mine (“the Mine”). Her job title was “production employee”. Initially, she was a trainee with the “Production - B Crew”. The traineeship took two years, and she completed it on 13 January 2010.

9. Over the course of the traineeship, the plaintiff completed all the requirements to be fully certified as a production employee. When she completed the traineeship, she obtained a Certificate III in Surface Operations Coal Mining Operations. In that role she operated CAT trucks, Liebherr trucks, water trucks and graders.

10. In 2012, the plaintiff was taught how to use a drill. These drills are used to create holes, into which explosive charges are placed.

How did the accident occur on 6 March 2013?

11. Liability is strongly in dispute. The critical issue to determine is whether the Cat 24 grader (“the grader”) driven by the plaintiff hit a “lamination” or a “windrow”. A grader is a large motorized construction machine.

12. It is the plaintiff’s case that she suffered her injuries on 6 March 2013, when a grader she was driving on Lambs Lane struck a lamination and threw her around in her seat. In short, a lamination is a breakdown of any road surface (T 167.39-48), including a pothole, pile of dirt or rock (T 242.43-46). More technically, a lamination occurs where a road has gradually built up with sheeted gravel and clay material. As laden trucks—some of them 400 tonnes—traverse over these roads, particularly in wet weather, the material lifts and layers of material tend to delaminate. This delamination can cause holes to form in the hall roads, depending upon whether the material is soft or hard (T 286.19-25). If the plaintiff suffered her injuries when the grader struck a lamination, then the unchallenged expert evidence leads to the conclusion that the defendant was negligent.

13. However, it is the defendant’s case that the plaintiff suffered her injuries when the grader struck a “windrow”. A windrow is an earthen embankment. It is half the height of the wheel of the largest truck on site, and exists to prevent vehicles from going over the side of a road (T 164.18-25). If the plaintiff suffered her injuries when the grader struck a windrow, then the unchallenged expert and other evidence leads to the conclusion that the defendant was not negligent, and the accident was the plaintiff’s own fault.

14. The plaintiff’s evidence of how the injury occurred is as follows.

15. On Wednesday, 6 March 2013, the plaintiff was rostered to work the night shift at the mine on the grader (T 228.47). Her shift commenced at 6.30 pm and was scheduled to finish at 6:40 am.

16. At the pre-shift meeting, the plaintiff had a conversation with David Seabrook, the Open Cut Examiner (“OCE”). Mr Seabrook told the plaintiff that she was to pick up the grader located at a part of the pit known as “Crib Hut 8” and grade a drill pattern at the bottom of Snake Gully. Crib Hut 8 is situated on the south side of the pit. The plaintiff drew two diagrams of the route (Exs 7 and 8). A topographical map shows the Mount Arthur Site Plan as at 5 March 2013 (Ex 6).

Exhibit 6

17. When the plaintiff went to start her shift, she received a message from Mr Seabrook over the private two-way radio. Mr Seabrook instructed the plaintiff to grade the drill pattern not at the bottom of Snake Gully, but at another part of the pit called McLeans Hill. McLeans Hill is on the north side of the pit and is approximately 8 kilometres by car from Crib Hut 8.

18. In cross examination, the plaintiff gave the following evidence regarding the weather conditions on the night of the accident (T 249.30-50; T 250.1-10). She agreed that the pit had just recovered from extensive wet weather. When asked about whether the weather had affected the area where she was driving on the night of her accident, the plaintiff stated that the road had dried and trucks were running on it. As far as she could see, the road surface appeared to be normal. She agreed that if she had gone too close to the sides of the road, she would have run a risk of striking the parts of the windrow which stuck out onto the roadway. As stated, her evidence was that she did not strike a windrow.

19. As instructed by Mr Seabrook, the plaintiff drove the grader from Crib Hub 8 past an area known as “Combustion Dump 1”, down onto a road known as the A-Road, and then onto Lambs Lane.

20. Shortly after she had driven onto Lambs Lane, the plaintiff had a mechanical issue with the grader. She pulled off Lambs Lane into a “safe stopping area”, from which she called Mr Seabrook on the two-way radio and reported the problem. The plaintiff remained stationary for approximately one hour while mechanics arrived and repaired the grader. Once the grader was repaired, she recommenced driving along Lambs Lane towards McLeans Hill. She said that when she re-entered Lambs Lane, the grader was operating normally.

21. The plaintiff drove along Lambs Lane for approximately 3 kilometres and approached an intersection with a road known as Red Rock Ramp.

22. The plaintiff gave evidence that it was pitch dark. Describing the scene, she said, “The only lights you can see are if you drive onto a dump, you see the dump light. If you drive down to a digger or a shovel you see their light, or other vehicles’ lights. Not necessarily vehicles’ lights, not necessarily graders’ lights, you see other truck lights.” There was no stationary fixed lighting in this particular area. The only light came from the vehicles that might happen to be on the road. The lights from the plaintiff’s grader were on (T 17.35-50).

23. At about 8.00 pm, the plaintiff was travelling along Lambs Lane. It was dark and she was using the grader’s headlights to illuminate the surface of the lane as she drove along. She was not using the grader’s work lights, which illuminate under the grader, because she had been instructed to use headlights when driving from point A to point B within the pit.

24. As the plaintiff was travelling on Lambs Lane approaching the intersection with Red Rock Ramp, she was driving at approximately 50 kilometres per hour. She knew that area of the pit was a “give way” section, meaning vehicles had to give way to larger vehicles as they approached from the left.

25. There is a hierarchy of vehicles that operate within the mine. The largest are vehicles known as “floats”. Next are trucks, followed by ancillary equipment including graders, dozers, pushcarts and loaders. The lowest-ranked vehicles are light vehicles, which are four-wheel-drive vehicles used for transporting personnel and small pieces or equipment around the mine. Under this hierarchy, a grader such as the one the plaintiff was driving would be required to give way to all other vehicles except light vehicles. The plaintiff was taught that the reason vehicle operators were to give way to the left was because truck drivers could not see out of the right-hand windows of their trucks.

26. As the plaintiff approached the intersection, in accordance with her usual practice, she began to move the grader further to the left-hand side of the road. As she was travelling on Lambs Lane, she was also aware of the danger of larger trucks coming up behind her and not seeing her grader.

27. As she drew closer to the intersection, the plaintiff decreased speed so that she was travelling at approximately 20 kilometres per hour. She steered the grader as far to the left as possible. On the left-hand edge of Lambs Lane was a windrow made of dirt, which had been created to stop vehicles from breaching the area and going over the high wall. The windrows were constructed by dozers pushing dirt into a pile and then flattening the top. The presence of the windrow prevented her from moving too far to the left.

28. From her position approaching the intersection of Lambs Lane and the Red Rock Ramp, the plaintiff knew that there was a combustion dump situated on the right of Red Rock Ramp. A digger and shovels were located to the left. The plaintiff also knew that Red Rock Ramp could be busy with large trucks transporting coal and/or dirt to the combustion dump. Because the trucks weren’t outfitted with brakes, they struggled to maintain a grip on the road in wet conditions. The trucks were fitted with retarders so that if the truck wheels lost grip, the wheels would lock and slide until the truck regained control.

29. In order to see if it was safe to enter Red Rock Ramp, the plaintiff twisted in her seat to look up and down the road. She also tried to look behind her to see if there were any vehicles approaching from behind.

30. The roads within the pit were unsealed and topped by a smooth dirt surface. After wet weather when roads have been damaged, they are scraped by dozers so they can dry out and allow trucks to run without problems. The graders usually grade piles of dirt called “fines” into the middle of the road. Once these piles are dried, they are graded back over the road to make it smoother. The reason the scrapings are placed in the middle of the road is so that the graders can grade the fines to both edges of the road.

31. In accordance with her usual practice, the plaintiff did not expect to find a pile of dirt on the left edge of the road. She expected any pile of dirt to be in the middle of the road.

32. When giving evidence, the plaintiff explained that the trucks are big enough to drive over a pile of dirt without even being jolted. The smaller light vehicles can maneuver around the piles. The plaintiff expected to find a flat—although not necessarily smooth—surface on the left-hand edge of Lambs Lane.

33. The plaintiff says that she did not see the lamination she hit because she was twisting in her seat checking for other vehicles, and also because it was night. She only felt the lamination when she hit it and was jolted up and down. She immediately felt pain in the lower left-hand side of her back. During cross examination, the plaintiff stated that she was jolted in her seat five times (T 19.44-45).

34. After she had struck the lamination, the plaintiff continued through the intersection and drove to the McLeans Hill drill pattern. Once she had arrived inside the drilling area and the grader was stationary, she called Mr Seabrook. As best she can recall, she and Mr Seabrook had the following conversation:

“Plaintiff: You need to come down and see me.

David Seabrook: I am coming down to the drill pattern. Wait there for me and I will come and see you.

Plaintiff: Okay. Please come and see me straight away.”

35. The plaintiff parked the grader in front of the drill, got out and spoke to a fellow colleague, Andrew Ellis. She experienced a great deal of pain when she was attempting to get out of the grader. As best she can recall, she said to Mr Ellis:

“Plaintiff: Fuck, I’ve hurt my back.

Andrew Ellis: What happened?

Plaintiff: I hit a big pile of lamination up on Lambs Lane.

Andrew Ellis: Oh, fuck, are you alright?

Plaintiff: No fucking way, I’m not. Seabo is on his way down.”

36. When Mr Seabrook arrived at the drill, he said words to the following effect:

“David Seabrook: What’s going on?

Plaintiff: I’ve hurt my back in the grader.

David Seabrook: What happened?

Plaintiff: I was driving along Lambs Lane before the Red Rock intersection. I was twisting to look up the ramp and I hit a lamination on the road.

David Seabrook: Are you all right or not?

Plaintiff: No, I’m not

David Seabrook: I think we should get you up to First Aid.

Plaintiff: Yes, I think so because I have really hurt myself.”

37. Mr Seabrook then drove the plaintiff in the light vehicle. On the way to first aid, Mr Seabrook swapped vehicles with Chris Bags, who drove the plaintiff the rest of the way. The plaintiff says the drive back from the drill at McLeans Hill to first aid at deployment was very bumpy and caused her to experience even more pain in her back.

38. When the plaintiff arrived at first aid, Mr Bags had to help her get out of the light vehicle, as she was in too much pain to get out unassisted. She asked Mr Bags to get her some Panadol. He gave the plaintiff two of his own Panadol, as the first aid room did not have any. He helped her up onto a bed.

39. Mr Bags administered ice treatment on and off for 15 minutes at a time for an hour. He then returned to work and left the plaintiff in the first aid room to rest. Throughout the night, Steven Hansen, first aid officer, and Mr Seabrook came to check on her.

40. The plaintiff understood that Mr Seabrook had completed an incident report in respect of her injury. Anthony Margetts, the mine manager, came and saw her at about 6.20 am on 7 March 2013, just as she was getting up. They had the following conversation:

“Anthony: How are you Gemma?

Plaintiff: I have hurt my back.

Anthony: Yes I saw that in the report. Are you in a lot of pain?

Plaintiff: Yes I’m in a bloody world of hurt.

Anthony: Are you leaving now?

Plaintiff: Yes.”

41. Mr Margetts then picked up the plaintiff’s crib bag and carried it out to the ladies’ bathhouse. He handed it to the plaintiff and said, “Hopefully I will see you tonight, and I hope the pain gets better.”

41. The plaintiff needed assistance to get changed. She then got into a share work car with two other mine employees. She had to lie down in the back of the car on the way home, as sitting up caused her too much pain. She could barely walk. She says that when she tried to sleep when she got home, she could only sleep for a couple of hours because the pain was so terrible.

42. The plaintiff’s evidence that she suffered her injuries when the grader struck a lamination, jolting her up and down in her seat five times (T 23), is consistent with her evidentiary statement (Ex B(i), tab 2.1 page 22). There, she stated:

“As I twisted in my seat, I hit a ‘lamination’ which was located near the windrow that formed the edge of Lambs lane.”

44. It was also consistent with her updated evidentiary statement (Ex A, [35]-[42]); her oral evidence (T 19.40-24.5); her telephone interview with the liability experts on 25 January 2016 (Ex B(i), page 57, [54]-[55]); notes of Muswellbrook Physiotherapy (Ex B(i), pages 322-323) stating, “In grader last night - hit laminations”; and notes of Aberdeen Surgery on 11 March 2013 (Ex F, page 32) stating, “Hurt her back at work on Wednesday on grader, she was just driving, hit lamination in road.”

45. There are also two claim forms that were signed by the plaintiff on 11 March 2013 (Ex B(i), pages 33-35) and an event report (Ex B(i), page 37), all of which state that the plaintiff hit a lamination on the road.

The confidential report prepared by the defendant

46. The defendant prepared a confidential report of the plaintiff’s accident. It was jointly authored by Mr Seabrook, who was the investigation supervisor, and Frank Botha, the investigation auditor. It contains a brief description of the accident stating that the plaintiff stated that while crossing the Lambs Lane/CD3 Dump intersection in grader 086, she hit a lamination in the road causing pain in her lower left back that intensified after 15 minutes. Under “Immediate Actions Taken”, the report states that the plaintiff was taken to first aid for ice treatment for the remainder of the shift, and that a grader was called to repair the road where the injury occurred (Ex B(i), page 37).

47. The confidential event report (Ex B(i), pages 37 and 38) relevantly reads:

__________________________________________________________________________

Mt Arthur Coal – NEC

Confidential Event Report: MACEV13030042

__________________________________________________________________________

…

Brief Description:

Operator stated that whilst crossing the Lambs Lance/CD3 Dump Intersection in Grader 086, the Grader has hit a lamination in the road causing pain in the lower Left Back of the operator that intensified after 15 minutes.

Immediate Actions Taken:

Operator was taken to First Aid for RICE Treatment for remainder of shift.

Grader was called to repair the road where the injury occurred.

Significant Incident and Fatal Risk Information:

Most involved FRCP:   Mobile Equipment

Zero Barrier Event?   No         Repeat Event?   No

External Reporting:            Prim Accountable:   Employee

Potential Impacts:      x Safety    x Health     Environment    Community

__________________________________________________________________________________

Details of Involved Items:

__________________________________________________________________________________

PEOPLE INVOLVED

Person Involved: Employment Type: Contractor Co: Role: Mechanism of Injury: Object Causing Injury: Activity performed: Duffin, Gemma Employee Production Employee (B Crew) – Shovels – MAC Other/Multiple Mechanisms Surface Mobile Equipment Operating Equipment/Machinery Severity: Employee ID Costs: Lost Time Case (Cl) 20026305 0.00 AUD

…

INVESTIGATION FINDINGS

Investigating Supervisor:      Seabrook, David

Investigation Auditor:Botha, Frank

Long Description

Roadway in the area was somewhat damaged due to the recent wet weather. A Grader was immediately called to fix the area.

The operator attended Physio the next day and presented for her next shift.

Operator however was not able to attend work for the next shift after days off and was managed by Kristy Euler.

__________________________________________________________________________________

Analysis Process:

Absent or Failed Defences

DF10:DF10 Hazard Identification

…

Response:   Absent/Failed

Details:   As it was at night time, the operator failed to see the hole in the road and therefore drove through it.

DF98:DF98 Other Absent/Failed Defence

Response:   Absent/Failed

Details:   Other operators using the area also failed to notice the hole in the road and therefore the hazard remained.

Individual/Team Actions

IT12:IT12 Hazard Recognition/Perception

Response:   Error or Violation

Details:      Other users in the area also failed to note/have the hazard repaired

IT98:IT98 Other Individual/Team Action

Response:   Error or Violation

Details:   Other users in the in the area also failed to note/have the hazard repaired

Task/Environmental Conditions

TW05:YW05 Abnormal Operation Situation or Condition

Response:   Contributor

Details:   The pit in general had just recovered from extensive wet weather. Some roads were still somewhat a little weather affected.

TW23:TW23 Surface Gradient/Condition

Response:   Contributor

Details:      The roads were still somewhat weather effected after heavy rainfall.

__________________________________________________________________________________

48. The defendant submitted that the weight to be given to a representation recorded in a business record is only ever as good as its source. Section 69(2) of the Evidence Act 1995 (NSW) requires perception of the event recorded: see Lithgow City Council v Jackson (2011) 244 CLR 352. As such, the report provides evidence of nothing more than that the plaintiff said she hit a lamination. Furthermore, the defendant’s business record indicating that a grader was sent to grade the roads is not an admission of guilt, but rather an indication that the defendant was aware by reason of the wet weather that the roads may have been in a state of disrepair requiring grading. It is a neutral piece of evidence. The defendant submitted that there is no business record which indicates that there was found to be a lamination.

49. I disagree. The investigation report records the events of the accident. The information it contains is consistent with the plaintiff’s version of events and her previous conversations with her supervisor, Mr Seabrook. He is one of the authors of the confidential event report. The report noted that the roadway was somewhat damaged due to the recent wet weather. More significantly, the report stated that the operator of the grader (the plaintiff) failed to see the hole in the road and drove through it, and that the immediate action taken was to call a grader to repair the road where the injury occurred. It further stated that other operators using the area had also failed to notice the hole in the road, which is why the hazard remained.

Conversations between the plaintiff and Mr Seabrook after the accident

50. The plaintiff gave evidence that after the incident, while she was in first aid, she had a conversation with her supervisor, Mr Seabrook. She said to him, “Did you see what I had hit?” He replied, “Yes, a whole heap of crap laminations in there….We got it fixed” (T 252.47-50). In other words, the plaintiff’s supervisor had inspected the site where the accident occurred. His observations of the “whole heap of crap laminations” are broadly consistent with the plaintiff’s version of how the accident occurred.

Post-accident

51. At about 1.00 or 2.00 pm on the day of the accident, Mr Seabrook called the plaintiff as she was recovering in her home. The plaintiff recounted their conversation as follows:

“David Seabrook: G’day Gemma, how are you going?

Plaintiff: Not very good, I’m still in a lot of pain.

David Seabrook: Okay, we need you to go and see Sean Henderson at Muswellbrook Physiotherapy.

Plaintiff: Okay. No worries.

David Seabrook said: Your appointment is not until 5.30 or 5.45.”

52. The plaintiff then saw Mr Henderson, who suggested that she should not go to work. Mr Henderson told her that she had a muscle strain and that the pain would improve after some rest. Despite Mr Henderson’s advice, the plaintiff decided to go to work because she did not have a doctor’s certificate.

53. The plaintiff arrived at work at approximately 6.40 pm and went to see Mr Seabrook in his office. He suggested that she go home. The plaintiff recounted their conversation as follows:

“David Seabrook: How are you going?

Plaintiff: Not real good at all.

David Seabrook: Did you go and see Sean?”

Plaintiff: Yes I did. He thinks it’s a muscle strain and it will hopefully get better with rest.

David Seabrook (in a joking manner): You’re fucked, what are you going to do?

Plaintiff: I’m in so much pain at the moment I have no fucking idea.”

54. Mr Seabrook then called over Steve Nichols, with whom the plaintiff had the following conversation:

“Steve Nichols: Do you reckon you can stay at work and just hang around in the crib hut?

Plaintiff: Nico, I’m in that much pain I can’t sit, I can’t stand, what the fuck am I going to do here all night?

Steve Nichols: Oh all right, you might as well go home. I’ll write it in my report.”

55. The plaintiff was able to rest over the weekend, as she was rostered off work. She took some Tramadol. The plaintiff returned to work on Monday. Although she had spent all weekend resting, she was still in excruciating pain.

56. When the plaintiff arrived at work on Monday morning, she was in substantial pain. She saw Mr Seabrook, who said, “You’ve got to see Christie Yeuller. I’ve sent her an email telling her what happened.”

57. At approximately 7:30 am, Ms Yeuller saw the plaintiff and said, “I’ve seen the email from David Seabrook. I’m just trying to organise a meeting with the OCE and the Superintendent. Just stay here and get as comfortable as you can.”

58. Between 9.00 am and 1.00 pm, the plaintiff met with Ms Yeuller, Mr Seabrook and Frank Botha and told them what had happened to her.

“David Seabrook: Yeah that’s what I put in my report.

Christie Yeuller: We should get her to the doctor.”

59. On 11 March 2013, the plaintiff completed an employee’s compensation claim form. Under the heading “What Happened”, the plaintiff wrote, “Whilst driving drill prep grader, I hit lamminations [sic] in the road + was jolted up + down” (Ex B(i), page 33).

60. On 12 March 2013, in the accident/incident form completed by Mr Seabrook as the plaintiff’s supervisor, he described how the incident as follows:

“Operator stated that she has driven over a lamination in the road on the Lambs Lane, CD3 Dump intersection causing pain in her lower left back that intensified after 15 minutes.” (sketch omitted)

61. It is convenient that I record here that the defendant did not provide an affidavit of Mr Seabrook or call him to give evidence. While Mr Seabrook no longer works with the defendant, he was able to be located at the time of the trial (Aff Jessica Boatwright, 9/9/2019). The defendant provided no explanation for his absence. The plaintiff submitted that a Jones v Dunkel (1959) 101 CLR 298 inference should be made against the defendant.

62. In Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 (“Hellicar”) at [166], the High Court reaffirmed the principle flowing from Lord Mansfield’s dictum in Blatch v Archer (1774) 98 ER 969 at 970 that “[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.”

63. The decision in Jones v Dunkel was described as “a particular and vivid example” of how such principles may be used. The Court in Jones v Dunkel at 308 per Kitto J held that:

“….any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.”

64. In Fabre v Arenales (1992) 27 NSWLR 437, Mahoney JA (with whom Priestley and Sheller JJA agreed) stated at 449:

“…the significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so.”

65. Not only has the plaintiff given evidence of contemporaneous conversations with Mr Seabrook both before and after the accident as to what happened, Mr Seabrook also completed the injury form and the confidential event report. His evidence is critical in substantiating the plaintiff’s case. It is my view that this Court can comfortably draw a Jones v Dunkel inference that Mr Seabrook was not called because the defendant feared to do so. I accept that the plaintiff’s versions of the conversations are true.

Evidence the defendant says supports its version of events

66. As stated, it is the defendant’s case that the plaintiff suffered her injuries when the grader which she was driving struck a windrow, not a lamination. This is based on histories recorded in the notes of Mr Freeman on 19 July 2015 and Dr Bentivoglio on 6 October 2015 (both nearly two and a half years after the accident), as well as the amendments made to the plaintiff’s statement of claim and what she allegedly told the experts concerning how the accident occurred.

Mr Freeman’s evidence and medical report

67. Mr Freeman is the plaintiff’s psychologist. In his handwritten clinical records dated 19 July 2015 (Ex 10), he recorded, “Travelling grader, twisted in seat, hit hard edge of windrow (Mt Arthur Coal). Jolt caused constant back pain.”

68. The defendant submitted that this is a candid, yet precise and accurate description of what occurred. It is consistent with other evidence volunteered by the plaintiff that she was keeping to the left as much as possible.

69. Mr Freeman gave evidence and was cross examined via telephone link. He stated that he had been more interested in the plaintiff’s psychological situation than how the accident occurred. He gave the following evidence (T 415.44-52):

“Q. I take it that this would be an important part of your clinical practice because these notes would serve you, at a later point in time, if you needed to refresh your memory about what you'd been told previously?

A.  Sure, and if it has anything to do with psychological situation that would certainly be true but just to clarify.  As far as the account of a particular incident goes, I wouldn't be too worried if I got any of that wrong because I don't refer to it like that.  I'm only referring to people's psychological injury, their diagnostics and their treatment.  If I wanted a report of the accident itself, I'd get one from the expert.”

70. Senior Counsel for the defendant asked Mr Freeman about an entry he made in his handwritten notes as to the plaintiff’s explanation of how the accident occurred (T 419.22-44). Their exchange is as follows:

“Q. On the third line of the entry commencing ‘Travelling grader’, do you see that?

A. Yes.

Q. After the second comma you’ve written, ‘Hit hard edge of windrow’.  Do you see that?

A.  Yes.

Q. That records, doesn’t it, something that Ms Duffin said to you?

A. That’s what I’ve written down but I’m not too sure whether I’ve accurately written down everything she said.  I mean I’ve tried a long explanation and it’s finished up, I’ve only written down about ten words.  I’m sure I didn’t capture everything.

Q. But you don't have any doubt, do you, that she said to you that she hit the hard edge of the windrow?

A. I’m not too sure whether that’s exactly what she said.  She said she hit something, she probably mentioned windrow but she mentioned a number of different technical terms which I know nothing about so I wouldn’t swear that I’ve got it down correctly.

Q. Windrow, you would regard as a technical term.  Is that correct?

A. Well, I don’t know what it means.”

71. In re-examination, Mr Freeman was asked if the plaintiff could have said something along the lines of, “As I was twisting in my seat, I hit a lamination which was located near the windrow that formed the edge of Lambs Lane.” Mr Freeman replied, “Quite possibly” (T 420.13-19).

72. In cross examination, the plaintiff denied that she hit a windrow (T 238.46-49). She also denied on three occasions that she told Mr Freeman that she hit “the hard edge of the windrow” (T 239.2; T 248.5; T 251.30).

73. The defendant also referred to what Dr Bentivoglio recorded in his medical report on 6 October 2015, where he stated, “[she] ran into a mound of dirt, probably two to three metres high”. According to the defendant, this entry helps to corroborate the history given to Mr Freeman, so that neither can be considered mis-recordings. The defendant submitted that each account corroborates the other in important respects. Both entries are consistent and point unequivocally to the height of a windrow, described by the plaintiff in her evidence as being half the height of a truck’s wheel.

74. In Mason v Demasi [2009] NSWCA 227 (“Demasi”), the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts she gave to various health professionals, which appeared inconsistent with either each other, her oral testimony, or both. In Demasi, Basten JA stated at [2]:

“[2]… The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Husey in [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:

(a) the health professional who took the history has not been cross-examined about:

(i) the circumstances of the consultation;

(ii) the manner in which the history was obtained;

(iii) the period of time devoted to that exercise, and

(iv) the accuracy of the recording;

(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;

(c) the record did not identify any questions which may have elucidated replies;

(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and

(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”

75. In my view, Mr Freeman’s evidence establishes several things. Firstly, he was not too worried about how the accident occurred, as his focus was upon the plaintiff’s psychological condition, diagnostics and treatment. Secondly, he was not sure what exactly she said; he stated that he did not know what a windrow was. Finally, it is quite possible that the plaintiff gave him her version of events.

76. I accept Mr Freeman’s evidence and find it logical, considering he took the history while focusing upon the plaintiff’s psychological condition, rather than how the accident itself occurred. On the balance of probabilities, I make a finding that his recording of the accident is not accurate. Dr Bentivoglio was not cross examined on Mr Freeman’s recording of the accident in his medical report dated 6 October 2015. In any event, Dr Bentivoglio’s recorded version of events differs from the version recorded by Mr Freeman. As they were each made nearly two and half years after the accident, they are nowhere near as reliable as the contemporaneous records referred to earlier in this judgment.

77. The defendant also drew attention to the plaintiff’s evidence that she did not see what she hit (T 24.18). She said, “[I] hit something that I knew wasn’t a rock.”

78. However, it is important to consider this statement in context. The exchange that occurred is as follows (T 24.8-35):

“Q. …You've said to Mr Ellis that you hit a lamination, and I asked you why you said that, and you said you believed that’s what had happened?

A. Yeah.

Q. And then I was asking you what it was that made you believe that? You didn’t see it. You didn’t say you saw it?

A. No, I didn’t.

Q. What made you believe that that’s what you hit?

A. Well, I hit something that I knew wasn’t a rock.

Q. Yes?

A. I knew it wasn’t a light vehicle.

Q. Yes?

A. I knew that it wasn’t anything that I could see. It was the same - when I looked down, because there’s – it’s glass all the way down through to your the bottom of your floor of your grader; when I looked down, I couldn't see anything, so I believed it was the same colour as the dirt on the ground, cause everything’s just dirt.

Q. Right?

A. So, I thought, well, it’s a breakdown in the road surface that is a dirt colour, the same as the lamination.

Q. That’s what you believe caused this violent jolting?

A. Yes, I do.”

79. The defendant referred to the plaintiff’s statement that as she drove the grader, she moved it closer to the left-hand windrow. At that point, the plaintiff was looking to the right up Red Rock Ramp, and not over her right shoulder. She agreed that when she checked her mirrors to see what was coming behind her, she did so only momentarily (T 238.14-40).

80. The defendant asserted that the facts show that the plaintiff does not know what she struck. She did not see it. The defendant submitted that there is cogent evidence establishing that she hit a pile of dirt.

81. The defendant further submitted that it is significant that the histories that the plaintiff gave to Mr Freeman and Dr Bentivoglio match instructions the plaintiff gave to her lawyers as to how the accident occurred. Paragraph [13] of the statement of claim was amended to delete the words, “a pile of dirt that had been left”, and replaced with the word, “lamination”. According to the defendant, the amendment reveals a belated recognition of the plaintiff’s collision with an earthen windrow. The plaintiff also gave instructions to the liability experts that the accident occurred as follows:

“(t) The accident occurred at approximately 8 pm.

(u) As the plaintiff was twisting in her seat, she hit what was described by her as a pile of dirt which was located next to a windrow. The plaintiff instructs that it appeared someone had pushed the dirt towards the windrow but had not pushed it right up against the windrow. The plaintiff instructs that since she was twisting in her seat checking for other vehicles, and the fact that it was night, she did not see the dirt. The plaintiff instructs that she felt the rear left tyre hit the pile of dirt.

(v) When the plaintiff hit the pile of dirt, she was jolted up and down in her seat repeatedly. The plaintiff immediately felt pain in the lower left side of her back. The plaintiff knew right away that she had been hurt.”

82. I do not accept that the plaintiff gave this description to the experts. When David Cockburn and Jason Wagstaffe asked the plaintiff how the accident occurred, she informed them that when she was twisting in her seat to look for other vehicles in case she had to give way to them, she hit a lamination upon the road surface with her left-side rear wheels. She said it was night and she did not see the lamination. The plaintiff told the authors that the contact with the laminated road surface caused her seat to bottom out twice, jarring her back as both wheels interacted with the laminated road surface. The experts contemporaneously recorded the plaintiff’s statements via Dragon Dictate.

Factual findings on liability

83. There is a large body of evidence, most of it contemporaneous, that supports the plaintiff’s version of events (Ex B(i), page 57 [54]-[55]). For the reasons I set out previously, I accept her evidence.

84. In summary, I make the following findings:

1. It was pitch black. There was no lighting in the area. The headlights on the grader were on.

2. At about 8.00 pm on 6 March 2013, the plaintiff was driving a grader upon Lambs Lane. As the she approached the intersection with Red Rock Ramp, she drove her grader to the left-hand side of Lambs Lane and twisted in her seat to look over her right shoulder for larger vehicles approaching from behind. She had been trained to move to the left and to give way to all larger vehicles when approaching intersections of roads within the coal mine.

3. While the plaintiff continued to drive in this twisted manner, the left rear wheel of the grader struck a lamination on the left edge of Lambs Lane. As a result of striking the lamination, the plaintiff was jolted violently in her seat, causing her to suffer injury to her back and right hip.

Liability

85. Liability is to be determined in accordance with common law principles and not the Civil Liability Act 2002 (NSW). This follows from s 3B(1)(f) of the Civil Liability Act, which relevantly reads:

“3B Civil liability excluded from Act

(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

…

(f) civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies--the whole Act (other than Part 1B),

…”

86. Part 1B of the Civil Liability Act is not relevant in the present case.

87. Liability in this case relates to an award of damages sought under Pt 5 Div 3 of the Workers Compensation Act 1987 (NSW).

88. This approach is consistent with authorities including Rail Corporation New South Wales v Donald [2018] NSWCA 82 at [7] (Beazley ACJ, McColl and Meagher JJA agreeing).

89. An employer owes a personal, non-delegable duty of care to its employees requiring that reasonable care be taken for their safety.

90. In O’Connor v Commissioner for Government Transport (1959) 100 CLR 225 at 229, the High Court noted that there was imposed upon every employer, a duty to take reasonable care for the safety for employees:

“…by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to secure him from danger of injury.”

91. In addition, the nature of the duty of care owed by an employer to an employee was explained by the High Court in Czatyrko v Edith Cowan University (2005) 214 ALR 349; (2005) 79 ALJR 839 (per Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ) as follows at [12]:

“[12] …An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”

92. It has been accepted that the content of the ordinary common law duty of care is a duty to exercise reasonable care (and skill) or to take reasonable steps to avoid risk of harm to a person to whom the duly is owed. The degree or standard of care required varies with the risk involved: see Kondis v State Transport Authority (1984) 154 CLR 672.

93. The plaintiff pleads that the defendant, as her employer, had an obligation to take reasonable care to avoid foreseeable risks of injury arising from her employment. The plaintiff further asserts that the defendant was required to take reasonable precautions to guard against the risk of the plaintiff suffering injury. It is the plaintiff’s case that the risk of a person, such as the plaintiff, suffering injury in the circumstances she encountered were foreseeable and not insignificant.

94. The plaintiff pleads breach of duty and negligence, and provides numerous particulars (at ASC [15](a)-(z)). They read:

“15   The Plaintiff sustained injury, loss and damage as a result of the breach of the duty of care owed by the First and Second Defendants, their servants and/or agents, to the Plaintiff, particulars of which are as follows.

Particulars of Breach of Duty and Particulars of Negligence:

(a)   Failing to provide and maintain a safe work environment.

(b)   Failing to devise, institute, maintain and ensure compliance with a safe and proper system of work.

(c)   Exposing the Plaintiff to a risk of injury that could have been avoided by the exercise of reasonable care;

(d)   Putting the Plaintiff in a position of peril in the circumstances.

(e)   Failing to train or adequately train the Plaintiff in and about the performance of her duties.

(f)   Failing to warn or adequately warn the Plaintiff as to the inherent risks of working in a Coal Mine.

(g)   Failing to undertake any proper or adequate risk assessments insofar as the Plaintiff's duties were concerned.

(h)   Failing to inspect or properly inspect the Coal Mine so as to identify potential risks to the Plaintiff in and about the performance of her duties.

(i)   Failing to instruct or direct or adequately instruct or direct the Defendant's employees in and about the performance of road maintenance duties within the Coal Mine.

(j)   …

(k) Failing to have in place an effective inspection program as required by clause 15 of the Coal Mine Health and Safety Regulations 2006 (NSW) and particularly clause 15(1)(g) of the Regulation, which required the performance of regular inspections of all safety accessible parts of the coal operation, with the frequency of inspection dependent on the risks present.

(I)   Failing to have in place an effective surface transport hazard management plan that addressed known hazards associated with the use of mobile plant at the Coal Mine as required by the Coal Mine Health and Safety Regulation 2006 (NSW) specifically addressing the hazards associated with:

(i) The safe design of roadways on which the Defendant's transport may operate as required by clause 30(1)(c);

(ii)   The operation of transport on roadways where the condition of the roadways may adversely affect safety as required by clause 30(1)(h).

(m)Failing to comply with s.11 of the Coal Mine Health and Safety Act, 2001 (NSW), which required the Act to be read in conjunction with the Work Health and Safety Act, 2011 (NSW).

(n) Failing to comply with the requirements of s.19 of the Work Health and Safety Act, 2011 (NSW) and specifically:

(i) Failing to ensure the health and safety of workers, such as the plaintiff; see s.19(1)(a); and

(ii) Failing to provide and maintain a work environment that was without risk to health and safety: see s.19(3)(a).

(o) Failing to comply with the requirements of Part 3.1 of the Work Health and Safety Regulation 2011 (NSW) which required the Defendant to manage the risk to health and safety and specifically:

(iii)   Failing to identify reasonably foreseeable hazards that could give rise to a risk to health and safety: see clause 34;

(iv)   Failing to eliminate risks to health and safety as far as reasonably practicable: see clause 35(a);

(v)   Alternately, failing to minimize risks to health and safety as far as reasonably practicable: see clause 35(b);

(p)   Failing to comply with the requirements of clause 8.1 of the Australian Standard AS1470-1986: Health and Safety at Work - Principles and Practices, which required the maintenance of work places so that they are safe and without risk to the health of workers and specifically, clause 8.2.1(a) which required the identification and removal and/or elimination of hazards associated with its operation.

(q)   Failing to provide and maintain a safe work environment.

(r)   Failing to devise, institute, maintain and ensure compliance with a safe and proper system of work.

(s)   Exposing the Plaintiff to a risk of injury that could have been avoided by the exercise of reasonable care;

(t)   Putting the Plaintiff in a position of peril in the circumstances.

(u)   Failing to train or adequately train the Plaintiff in and about the performance of her duties.

(v)   Failing to warn or adequately warn the Plaintiff as to the inherent risks of working in a Coal Mine.

(w)   Failing to undertake any proper or adequate risk assessments insofar as the Plaintiffs duties were concerned.

(x)   Failing to inspect or properly inspect the Coal Mine so as to identify potential risks to the Plaintiff in and about the performance of her duties.

(y)   Failing to instruct or direct or adequately instruct or direct the Defendant’s employees in and about the performance of road maintenance duties within the Coal Mine.”

95. The defendant denies negligence and breach of statutory duty, and pleads contributory negligence.

Provisions of the Work Health and Safety Act

96. It is convenient that I reproduce ss 18 to 20 of the Work Health and Safety Act 2011 (NSW) here.

97. Section 18 of the Work Health and Safety Act sets out what is “reasonably practicable” to ensuring health and safety:

“18 What is reasonably practicable in ensuring health and safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a)    the likelihood of the hazard or the risk concerned occurring, and

(b)   the degree of harm that might result from the hazard or the risk, and

(c)    what the person concerned knows, or ought reasonably to know, about:

(i)    the hazard or the risk, and

(ii)    ways of eliminating or minimising the risk, and

(d)    the availability and suitability of ways to eliminate or minimise the risk, and

(e)    after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”

98. Section 19 of the Work Health and Safety Act sets out the primary duties of an employer as follows:

“19 Primary Duty of Care

(1)    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a)    workers engaged, or caused to be engaged by the person; and

(b)   workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

(2)    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3)    Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a)    the provision and maintenance of a work environment without risks to health and safety, and

(b)   the provision and maintenance of safe plant and structures, and

(c)    the provision and maintenance of safe systems of work,

…”

99. Section 20 of the Work Health and Safety Act sets out the duty of persons conducting businesses or undertakings involving management or control of workplaces:

“21 Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plants at workplaces

(1)   In this section, person with management or control of fixtures, fittings or plant at a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, of the workplace, but does not include:

(a)    the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or

(b)    a prescribed person.

(2)   The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person.”

100. I have accepted the plaintiff’s version of events and set out my findings. In order for the plaintiff to establish that the defendant is liable, she needs to show:

1. that there was a risk of injury which was reasonably foreseeable;

2. that there were reasonably practicable means of obviating such risk; and

3. that the defendant’s failure to eliminate the risk showed a want of reasonable care for the plaintiff’s safety.

The plaintiff’s experts’ evidence on liability

101. David Cockbain and Jason Wagstaffe, experts on occupational health and safety and risk management, prepared a joint experts’ report dated 28 March 2017 on behalf of the plaintiff (Ex B(i), page 40) and gave concurrent evidence. I accept their evidence.

102. The following matters are essentially all established by the unchallenged expert evidence of Mr Cockbain and Mr Wagstaffe. In particular, they set out on pages 42-43 of their report (Ex B(i), pages 81-82) the simple steps that the defendant could have taken to make the area safe and avert the plaintiff’s injury.

103. What kind of defect the plaintiff drove over with her grader–be it a pile of dirt, a hole or a lamination in the road—did not make any difference to the experts’ opinions. The experts addressed the motion of the grader as follows. The vehicle had a front and rear wheel. As the front of the grader traversed the defect and came down the other side, the movement initiated what the experts called the “first event”. Once the rear of the grader passed over the defect, the movement initiated a “second event”. Both events would cause the plaintiff’s seat to bottom out, and in between the events, the plaintiff would experience a great deal of shaking and jolting. In terms of the events themselves, the experts said there should only be two: the first and second (T 265.25-33). Whether the plaintiff was jolted up and down in her seat repeatedly, or whether the seat bottomed out twice, did not affect the experts’ ultimate decision (T 266.10-11). Further, the experts said it would not make any difference to their opinion whether the plaintiff was driving a Cat 24 or a Cat 16 grader (T 267.18).

104. The experts were asked to answer the following questions (Ex B(i), pages 42-43):

“5.   What, in your opinion, should the OCE at the defendant's coal mine have done prior to the shift commencing to ensure that the road surface that the plaintiff was working on was safe?

162.   It would have been a simple matter for an OCE assigned to the area of the mine where the plaintiff suffered injury to have:

•   Inspected the haul road prior to the shift commencing while there was still sufficient daylight to visually detect defects within the haul road and issued instructions to address the hazard prior to enabling the haul road to be traversed by mobile plant.

•   Delineated the hazard using hazard cones, notified all operators of mobile plant, via the defendant’s mine site radio that a hazard existed within the intersection of Lambs Lan’e and Red Rock Ramp, and if the hazard was located within part of the intersection that was being traversed by rear dump trucks running between the dump and the production face, stand down the intersection from all mobile plant use (i.e. stop production activities).

•   Request that a grader be sent to the intersection as a matter of priority so that the hazard was rectified and production activities able to recommence.

•   Requested that artificial area lighting be provided to the intersection of Lambs Lane and Red Rock Ramp, initially so that the hazard cones placed around the defect in the haul road are visible, and post defect repair so that the road surface, that was subjected to a large number of loaded rear dump trucks, could be observed by all operators of mobile plant required to traverse it.

6.   In your opinion, could the defendant have prevented the plaintiff's injury by:

a.   Correctly managing the roads surface

163.   To correctly manage the road surface the defendant needed to have in place an effective and instructive haul road standard that clearly articulated how the road surface was to be designed, constructed, proactively maintained and regularly inspected as required by clause 30 of the Coal Mine Health and Safety Regulation 2006. With respect to this matter:

•   The haul road surface needed to be constructed from a material that was not subject to laminations after periods of wet weather.

•   The haul road needed to be regularly inspected during and after periods of wet weather to identify soft spots and laminations such that they could be repaired prior to exposing worker to injurious potential.

•   The time period between inspections needs to be risk based. That is to so say, the higher the risk the more frequent the inspection. With regards to this matter, the wetter the road, the more frequent the inspection. Wet roads become hazardous very quickly. As roads dry out after wet weather the surface sheeting, if not maintained will laminate and cause pot holes to occur.

b.   Inspecting the roads properly according to policy

164.   The Defendant's Mine Inspection System was not effective and did not provide the instruction necessary to detect the hazard associated with the haul road prior to the plaintiff suffered injury, nor did the defendant's Transport Rules.

c.   Identifying any hazards and communicating this danger with staff

165.   It is clear to the writers that the defendant did not have systems that were effectively able to provide the guidance and instruction necessary for OCEs to identify hazards associated with the hazardous section of the haul road.

d.   Addressing all hazards on the road to reduce risk

166.   See response to previous answer.”

105. At [167] of their report (Ex B(i) pp 83-84), the authors set out seven factors which contributed to the plaintiff’s injury. They are:

“(a)   The failure of the defendant to develop and implement a facilitated risk assessment of the workplace conditions and facilities, the task required of the plaintiff and the system of work utilised for the regular inspection and maintenance of the Lambs Lane haul road in order to identify the hazards and risk of injury to which the plaintiff was exposed.

The risk assessment was required in order to meet the defendant's duty of care obligations contained within s 19 of the Work Health and Safety Act 2011 and the requirements of the Work Health and Safety Regulation 2011.

The risk assessment should also have taken into consideration the articulated requirements set out in AS/NZS ISO 31000:2009 Risk Management - Principles and guidelines and AS 1470-1986 Health and safety at work - Principles and practices.

(b)   The failure of the defendant to implement a risk management process for the elimination and/or minimisation of musculoskeletal injuries caused by the jolting/jarring of mobile plant operators; specifically operators of graders.

The implementation of a risk management process for the control of musculoskeletal injuries on mine sites could and should have been achieved with the use of the NSW Mine Safety Advisory Council's freely available publication titled Managing musculoskeletal disorders: A practical guide to preventing musculoskeletal disorders in the NSW mining and extractives industry and the Barbara McPhee publication, made freely available through Coal Services Pty Limited, Bad Vibrations - A handbook on whole body vibration exposure in mining.

(c) The failure of the defendant in requiring or permitting the plaintiff to operate a grader on a haul road that contained potholes/height differentials which was an inadequate system of work in breach of the defendant's duty of care obligations contained within s 19 of the Work Health andSafety Act 2011.

(d)   The failure of the defendant to provide effective supervision and monitoring of grader movements on the Lambs Lane haul road in order to ensure that the systems of work adopted for the inspection and maintenance of the haul road did not expose workers to a risk of injury in accordance with the Work Health and Safety Act 2011, s 19(3)(f), the Work Health and Safety Regulation 2011, cl 39(2) and AS 1470-1986 Health and safety at work - Principles and practices, s 6.

(e) The failure of the defendant to have in place an effective inspection program as required by cl 15 of the Coal Mine Health and Safety Regulation 2006 (NSW) and specifically addressing cl 15 (l)(g) which requires the conduct of regular inspections of all safely accessible parts of the coal operation with the frequency of inspections being dependent on the risks present.

The writers are of the opinion that had an effective inspection been undertaken of the haul road that a qualified and competent Open Cut Examiner would have identified the hazard within the roadway and had the hazard immediately removed or delineated the hazard until such times that it could be removed.

(f)   The failure of the defendant to have in place an effective Surface

Transport Hazard Management Plan that addressed the known hazards associated with the use of mobile plant at the defendant's mine as required by the Coal Mine Health and Safety Regulation 2006 (NSW) and specifically addressing the hazards associated with:

(i) the safe design of roadways on which the transport may operate as required by cl 30(1)(c); [and]

(ii)   the operation of the transport on roadways where the condition of the roadways may adversely affect safety as required by cl 30(1)(h).

(g)   The failure of the defendant to comply with the requirements of cl 8.1 of the Australian Standard AS 1470-1986 Health and Safety at Work - Principles and Practices, which requires the maintenance of workplaces so that they are safe and without the risk to health and workers, and specifically cl 8.2.1 (a) which requires the identification and removal and/or elimination of hazards associated with the operation.”

106. These matters are also established by the defendant’s own records, including its “Mine Inspection System”.

Did the defendant provide and maintain a work environment without risks to health and safety?

107. In summary, I find that the risk of injury to the plaintiff was reasonably foreseeable for the following reasons. Firstly, because the defendant was aware that prior to 6 March 2013 there had been a lot of rain. Secondly, the defendant’s investigation report noted that “[t]he pit in general had just recovered from extensive wet weather” (Ex B(i), page 38). Thirdly, “some roads were still somewhat a little weather affected” (Ex B(i), page 38). Fourthly, the “roadway in the area was somewhat damaged due to recent wet weather” (Ex B(i), page 38). Fifthly, other operators using the area also failed to notice to hole in the road, and therefore the hazard remained. Sixthly, after the accident occurred, a grader was immediately called to fix the area.

108. It is my view that it was clearly foreseeable that if the plaintiff was sent out to drive on such damaged roads in the dark, then then the type of incident that she suffered was likely to occur. Under these circumstances, I am satisfied that if the plaintiff carried out her supervisor’s instructions to drive a CAT 24 grader from Crib Hut 8 to the bottom of Snake Gully to grade drill patterns when the road was wet, dark and damaged, the risk that the grader would hit a lamination and cause the plaintiff injury was reasonably foreseeable.

(a)   Reasonable practical preventative measures of obviating such a risk

109. At [168], the experts set out the reasonable preventative measures that could and should have been implemented by the defendant, which would not have involved excessive expense in either their development or implementation. These measures included the following:

“(a)   The undertaking of an effective and appropriate risk assessment of the workplace conditions and facilities, the task required of the plaintiff and the system of work utilised for the regular inspection and maintenance of the Lambs Lane haul road in order to identify the hazards and risk of injury to which the plaintiff was exposed.

The identification and assessment of hazards was required in order for the defendant to comply with the duty of care obligations contained within s 19 of the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2011.

The risk assessment should also have taken into consideration the articulated requirements set out in AS/NZS ISO 31000:2009 Risk Management - Principles and guidelines and AS 1470-1986 Health and safety at work - Principles and Practices.

The cost associated with this risk control measure is considered procedural in nature and, for the sake of this exercise, the risk assessment has been costed at $150. It is noted that a change in legislation should have prompted the defendant to update the underpinning risk assessment and linked systems.

(b)   The implementation of a risk management process for the control of musculoskeletal injuries on the defendant's mine site using the process described in Part 9.3 of this report inclusive of Figure 3 and Figure 4.

The risk management process should also have taken into consideration the articulated requirements set out in the NSW Mine Safety Advisory Council's freely available publication titled Managing musculoskeletal disorders: A practical guide to preventing musculoskeletal disorders in the NSW mining and extractives industry and the Barbara McPhee publication, made freely available through Coal Services Pty Limited, Bad Vibrations - A handbook on whole body vibration exposure in mining.

(c)   The development, implementation and embedding of a system of work whereby the Defendant's Open Cut Examiner/Supervisor continuously inspected the Lambs Lane haul road for hazards posed by potholes and height differentials.

Continual assessment of the haul road, and specifically the “Lambs Lane”/”Red Rock Ramp” intersection was required due to the fact that the mine had recently experienced a period of wet weather and there was a large number of loaded rear dump truck movements through the intersection placing the intersection at a greater risk of damage.

It would have been a simple matter for an OCE assigned to the area of the mine where the Plaintiff suffered injury to have:

•   Inspected the haul road prior to the shift commencing while there was still sufficient daylight to visually detect defects within the haul road and issued instructions to address the hazard prior to enabling the haul road to be traversed by mobile plant.

•   Delineated the hazard using hazard cones, notified all operators of mobile plant, via the defendant's mine site radio that a hazard existed within the intersection of "Lambs Lane" and "Red Rock Ramp", and if the hazard was located within part of the intersection that was being traversed by rear dump trucks running between the dump and the production face, stand down the intersection from all mobile plant use (i.e. stop production activities).

•   Request that a grader be sent to the intersection as a matter of priority so that the hazard was rectified and production activities able to recommence.

•   Requested that artificial area lighting be provided to the intersection of Lambs Lane and Red Rock Ramp, initially so that the hazard cones placed around the defect in the haul road are visible, and post defect repair so that the road surface, that was subjected to a large number of loaded rear dump trucks, could be observed by all operators of mobile plant required to traverse it.

The cost associated with this risk control measure is considered procedural in nature and could simply have been undertaken through the provision of instructions to the defendant's open cut examiners/supervisors that were already allocated on shift.

…”

110. In summary, I make the following findings: firstly, that any matter which was found during an inspection that could affect the safety of persons in the mine, and cannot be controlled, was to be barricaded and brought to the attention of persons working in the area; secondly, that the area could have been barricaded; thirdly, that persons working in the area could have been warned of the hazard; and finally, that artificial area lighting could have been provided at the intersection of Red Rock and Lambs Lane.

111. All of these actions would have been reasonably practicable means of obviating the risk of injury to the plaintiff.

(b)   Was there reasonable care?

112. The defendant showed a want of reasonable care for the plaintiff’s safety in failing to eliminate the risk in the following ways. Firstly, the defendant was clearly aware of the damage to haul roads in the pit due to recent wet weather. Secondly, although a reasonable inspection would have identified the damage encountered by the plaintiff, no such inspection was carried out. Thirdly, the area was not barricaded in accordance with mine policy. Finally, the plaintiff was not informed about the damaged area in accordance with mine policy. The defendant failed to implement any of these practicable means.

113. As the plaintiff’s employer, the defendant had a duty of care to her as employee. It breached that duty of care. There were reasonable means that the defendant should have taken to avoid the risk of the plaintiff being injured. The defendant’s failure to implement those reasonable means caused the plaintiff to injure her back and right hip. Hence, I make a finding that the defendant was negligent.

Contributory negligence

114. The defendant pleads contributory negligence, and submitted that this Court should make a finding of contributory negligence of 50%. The plaintiff submitted that this Court would not make a finding that there was any contributory negligence on her part.

115. Section 151N(1) of the Workers Compensation Act 1987 (NSW) provides that the common law and enacted law regarding contributory negligence applies to an award of damages under the Workers Compensation Act, except as modified by s 151N. There are no relevant modifications by the section for the purposes of this case.

116. The defendant pleads that the plaintiff failed to keep a proper lookout; failed to keep proper control of the vehicle in which she was travelling; failed to observe the road on which she was travelling; and failed to keep her vehicle off the pile of dirt (Defence to Amended Statement of Claim [4](a) to (d)).

117. In Podrebersek v Australian Iron & SteelPty Ltd (1985) 59 ALR 529; (1985) 59 ALJR 429 at 494, the High Court determined that with regards to contributory negligence, the just and equitable apportionment of the liability ought be examined as follows:

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42–49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

118. At common law, the plaintiff is guilty of contributory negligence when she exposes herself to a risk of injury that was foreseeable and may have been avoided through the exercise of her own reasonable care.

The defendant’s submissions

119. The defendant submitted that in a single vehicle accident, the focus in apportioning liability should be on the plaintiff’s driving, as the surrounding physical conditions are static. The defendant submitted that the following evidence points to significant contributory negligence.

120. First, the plaintiff was aware of the risk of injury in not driving safely. The plaintiff was aware that she was required to drive appropriately under the conditions.

121. At the hearing of these proceedings, the plaintiff gave the following evidence (T 166.19-21; 167.1-4):

“Q. Is one of the effects that the rain had on the roads that there would be, as one might see on country dirt roads after rain, potholes and other irregularities?

A. Yes, there would be irregularities somewhere, yes.

…

Q: What you’ve described meant that you knew that before you - if you were asked to drive a grader after a rain event, you knew you would have to drive according to the prevailing road conditions, didn’t you?

A: Well, you always look out for any irregularities or anything like that, yes.”

122. The plaintiff understood that one of the irregularities in the road could have been a lamination. The plaintiff was aware that she needed to drive her vehicle to take into account the prevailing road conditions, and that she needed to reduce the speed of her vehicle to take into account road conditions that may adversely affect the safe operation of the vehicle.

123. The plaintiff gave evidence that there could be corrugations in the road (T 167.22-23). She gave the following evidence (T 168.23-27; 169.5-9; 235.39-50):

“Q. And speaking for yourself as the operator of a grader and one of the Liebherrs from time to time, that was something, I take it, that you didn’t need to be told about because you knew you needed to look out for road conditions and drive according to them?

A. Well, as I said, we always look out for road conditions.

…

Q. And you knew from your time at the mine that whatever was said to you about the road conditions, you, yourself, needed to take responsibility for the driving of whatever equipment you were driving in relation to the road conditions?

A. Yes, I took responsibility for the equipment I was driving.

…

Q. But, of course, the standard operating procedure would be to drive the grader, that you were driving, without colliding with objects, wouldn’t it?

A. Yes.

Q. Thank you for the way in which you answered that as well as the answer. You answered me emphatically, didn’t you?

A. Yes, I did.

Q. Thank you. You answered that way because it would be a matter of ordinary common sense, when you’re driving any form of motorised vehicle to ensure that it did not strike objects?

A. That’s correct.”

124. Secondly, the defendant submitted that on the plaintiff’s evidence, the impact with the lamination was such that the plaintiff was jolted in her seat five times in the cabin of her vehicle. That was something that she had not experienced before. The plaintiff gave what the defendant described as “somewhat fanciful” evidence that she could drive over a rock the size of a mini minor and not feel the impact. If that evidence was truthful (and the defendant suggested that it is an example of exaggeration that affects the plaintiff’s credibility), then the lamination must have been a huge defect in the roadway. The defendant submitted that the only possible explanation for not seeing such a defect in the roadway must be that the plaintiff was not keeping a proper lookout. Originally, the plaintiff attempted to explain the collision by suggesting that she was at all times looking over her right shoulder. However, the plaintiff’s evidence was that her attention was really directed to her left and right as she approached the intersection that she wanted to proceed through. Assuming the plaintiff’s evidence that there was a defect upon the road surface is accepted, she drove into and over it without seeing it.

125. The plaintiff gave the following evidence (T 244.1-7):

“Q. And the washouts would leave, rather than the presence of something raised over the road, a hole, or depression in the road?

3 5.   Ms Barbara notes that nothing in the surveillance footage causes her to alter her opinion as to the past care needs, or the extent of same regarding personal care, domestic assistance and yard and home maintenance Ms Barbara notes thatin response to her reviewing of the surveillance footage, she has made a minor modification to her calculation of past care in the areas of grocery shopping and transport assistance These modified calculations are outlined in Appendix 1.

3 6.   Ms Zeman notes that the plaintiff’s presentation in the surveillance footage m the period between 27.08.2015 -13.10.2017, was entirely inconsistent with her presentation at the time of her assessment.

3 7.   Ms Zeman notes that at the time of her assessment of the plaintiff, the plaintiff presented as slow and guarded in all movement patterns, wincing, grimacing and groaning throughout the assessment, adopting unusual movement patterns and supporting herself if standing over prolonged periods to ‘rest’ She presented as highly disabled and significantly reliant on assistance from others to complete both basic and instrumental activities of daily living.

3 8.   Ms Zeman notes that conversely, the surveillance footage shows her ambulating unimpeded, with good quality of movement and appropriate pace, standing for prolonged periods m excess of 10 minutes whilst maintaining an erect spinal posture, walking over extended periods with minimal if any gait impediment, walking and carrying items i.e., handbag/shopping, leaning forward without stabilizing her body to make purchases over a counter m a store with no apparent difficulty, sitting for prolonged periods in excess of 30 minutes without postural variation, maintaining an erect spinal posture to look up at high shelving m a store, with no evidence of the forward flexed spinal posture which was observed at the time of her assessment, ascending and descending stairs while carrying a hand bag, demonstrating a step-through (reciprocal) gait and unilateral upper limb hand rail support, transferring from stand - sit with only minor stabilization through the upper limbs, completing grocery shopping independently, including pushing a trolley and lifting bags out of a trolley and into her car, and consistently driving with an ability to easily transfer in and out of a high vehicle.

3.9.   Ms Zeman notes that use of a hand rail during stair climbing does not represent an impediment to function, nor a requirement for assistance, nor does making use of support structures (i.e., car hand grip) for transfers.

3.10.   Ms Zeman notes that furthermore, the plaintiffs presentation m the surveillance footage demonstrates appropriate interaction with others, with no overt evidence of any pain behaviors, postural compensation, or impairment to engagement, such as was observed at the time of her assessment when the plaintiff presented as disengaged within her home and community environments, claiming to have little engagement in meaningful avocational pursuits, and very little engagement in goal-directed activities.

3.11.   This has caused Ms Zeman to alter her assessment of the plaintiff function based on her own assessment of 02.08.2017, review of independent medical opinion, and review of surveillance footage of actual engagement, noting that the plaintiff has demonstrated the following in the period from 2015 onwards:

•   Unlimited tolerance: standing, sitting, forward reach, walking, transferring, and stair climbing

•   Reduced tolerance: overhead reach

•   Limited tolerance: kneeling and stooping

3.12.   Ms Zeman notes that in her assessment of the plaintiff, her primary limitations related to performance of tasks or adoption of postures necessitating low positioning. There is nothing contained in the surveillance footage which demonstrates functional capacity in this regard.

3.13.   Ms Zeman further notes that the plaintiff advised that her physical and functional condition has remained essentially unchanged following the subject incident, which causes Ms Zeman to conclude that her own assessment should be interpreted in conjunction with a review of the surveillance footage, which provides real-time evidence of actual functional engagement.

3.14.   On this basis Ms Zeman is of the opinion that the plaintiff has required past care as follows:

•   Domestic maintenance: 1.36 (rounded up to 1.5) hours per week, including bathroom maintenance, spring cleaning, and window cleaning.

•   External and heavy household maintenance: 2.48 (rounded up to 2.5) hours per week

•   Car washing: fortnightly car wash

TOTAL: 4 hours per week + fortnightly car wash

3.15.   It is Ms Zeman’s assessment that the plaintiff has had no past care requirement relating to personal care, laundry, transport, shopping, or meal preparation, having been able to make the necessary adaptations to function within her experienced symptoms.

4.   Q 3 Based upon your examination of the plaintiff, what are the plaintiff’s future care needs by reason of her back condition?

4.1.   Both experts note that based on their original assessments of 2017, and giving regard to the contemporaneous medical opinions reviewed, their assessments of future care were not overly dissimilar.

4.2.   Both experts note that the categories of future care were essentially the same, including domestic maintenance, external and heavy household maintenance, laundry, and shopping.

4.3.   Personal care:

4.3.1. Both experts agree that the plaintiff has no requirement for personal care assistance in the future.

4.4.   Meal preparation:

4.4.1.   The experts are unable to agree on the need for assistance with meal preparation.

4.4.2.   Ms Zeman notes that her assessment of the plaintiff was undertaken eight months after Ms Barbara’s, and in that time frame the plaintiff had purchased and had installed an automatic dishwasher which she was using independently, and demonstrated the capacity to use; Furthermore, the plaintiff advised Ms Zeman that she had maintained the capacity to engage in all meal preparation tasks with pacing of the activity and postural variation. Ms Barbara maintains that the plaintiff outlined that she continued to receive significant gratuitous assistance from particularly her teenage daughter and mother for meal preparation.

4.4.3.   Thus, although the experts are unable to agree on the needs for assistance in this regard, this may be related to improvement in function and environmental modifications in that time frame, or differences in the self-reporting of the plaintiff.

4.4.4.   Ms Zeman further notes that on the basis of her assessment of the plaintiff’s functional capacity, giving regard to the plaintiff’s report of no change in her function following the subject incident to date, and the plaintiff’s demonstrated capabilities in the surveillance footage reviewed, she does not have a requirement for future assistance with meal preparation.

4.5.   Domestic cleaning:

4.5.1.   Both experts agree that based on their original assessment, they both assessed the plaintiff as requiring 3 hours per week of assistance with domestic cleaning.

4.5.2.   Ms Zeman however, considers that having reviewed the surveillance footage, the plaintiff’s need for domestic assistance has altered given her demonstrated ability to perform both overhead reach and forward reach tasks, with an ongoing requirement for assistance with the heavier components of residential maintenance, including bathroom cleaning, vacuuming, spring cleaning and window cleaning at a rate of 1.5 hours per week.

4.5.3.   Ms Barbara maintains that no aspects of the surveillance footage cause her to alter her view that the plaintiff’s difficulty working at high and low levels and manual handling supports the need for domestic cleaning at a rate of 3 hours per week.

4.6.   Laundry:

4.6.1.   Both experts agree that based on their original assessment, they assessed the plaintiff as requiring 2 hours per week of assistance with laundry.

4.6.2.   Ms Zeman however, considers that having reviewed the surveillance footage, the plaintiff’s has no requirement for assistance with laundry, given her demonstrated ability to repeatedly reach into a vehicle, twist and turn in transfers, and reach overhead. Furthermore, Ms Zeman notes that the plaintiff does have a clothes dryer, should benefit from weekly grocery delivery for a large grocery shop as this would be beyond the plaintiff’s tolerances for manual handling and consistently reaching to high and low levels.

4.11.   Transport

4.11.1.   Both experts agree that the plaintiff has no requirement for assistance with transport.”

Consideration

376. Ms Zeman, after viewing the video surveillance, identified the need for past care at 4 hours per week. This is made up as follows: 1.5 hours per week for domestic assistance, including for bathroom maintenance, spring cleaning and window cleaning; and 2.5 hours per week for external and heavy household maintenance. This equates to 4 hours per week, plus provision for a fortnightly car wash. Ms Zeman assessed the plaintiff as having no past care requirements relating to personal care, laundry, transport, shopping, or meal preparation, as the plaintiff was able to make the necessary adaptions to function within her symptoms. Ms Zeman’s assessment of 4 hours per week did not fluctuate to take into account periods where the plaintiff developed a psychological disorder that worsened over time, nor did it account for the fluctuating severity of her physical disabilities.

377. I prefer Ms Barbara’s assessment. However, I have made modifications to accord with my findings in relation to the video surveillance, from which I determined that the plaintiff was exaggerating her symptoms.

378. Ms Barbara summarised the three phases of past domestic services as follows. Ms Barbara based the hours upon discussion with Gemma, review of her medical reports, observations of her home and property and Ms Barbara’s own experience in requirements for care after injury. Ms Barbara considered the care provided to have been fair and reasonable in light of these factors. This care would not have been provided if not for the 6 March 2013 injuries.

TYPE OF CARE PROVIDED	PERIOD	NUMBER OF WEEKS	AVERAGE TRANSPORT HOURS PER WEEK	AVERAGE CARE HOURS PER WEEK	TOTAL HOURS PER WEEK
(1) Phase one Personal care, meal preparation, household cleaning and laundry, grocery shopping, lawn, yard and home maintenance, care cleaning and transport	6 March 2013 to 30 November 2013	38.5	5	26	31
(2) Phase two Personal care, meal preparation household cleaning and laundry, grocery shopping, lawn, yard and home maintenance, car cleaning and transport	1 December 2013 to 18 February 2015	128	1	17	18
(3) Phase three Personal care, meal preparation household cleaning and laundry, grocery shopping, lawn, yard and home maintenance, car cleaning and transport	19 February 2015 to date	100	1	22	23

(1)   First phase – 6 March 2013 to 30 November 2013

379. The plaintiff did not return to work for 20 days after the accident. She was in severe pain. During this period immediately after the accident, she would have required both personal and domestic assistance as set out in Ms Barbara’s chart for the first phase in the amount of 31 hours.

380. From 26 March 2013 to 26 April 2013, the plaintiff attended work but was not given any real work to do. From 27 April 2013 to 30 November 2013, the plaintiff was off work. While she was in severe pain during this period, I do not think the plaintiff required 31 hours of domestic care. In my view, she was capable of attending to her personal hygiene after the accident for a period of 20 days, of preparing some meals, of driving to and from work for about one hour round trip, and of doing some light shopping. She was not capable of doing household cleaning, laundry, certain meal preparation, shopping for heavy or bulky items, yard and home maintenance, car cleaning and driving long distances. Doing the best I can, I assess the plaintiff’s gratuitous care at 16 hours per week for this period. To arrive at this figure, I have allowed 5 hours domestic care for meals, 7 hours for household cleaning and laundry, 1 hour for shopping and 4 hours for yard and home maintenance. This allowance takes into account that the plaintiff has a large yard that requires mowing and gardening. She also required fortnightly car washing.

(2)   Second phase – 1 December 2013 to 18 February 2015

381. For the second phase, Ms Barbara was of the opinion that the plaintiff required 19 hours per week of gratuitous care.

382. From November 2013 to March 21 March 2014, the plaintiff returned to work for 3 hours per day, 3 days a week. She worked in the office assisting the production team. Her hours were gradually increased each month for the next few months, as her back became increasingly painful.

383. From 22 March 2014 to 28 March 2014, the plaintiff was unable to work.

384. From 29 March 2014, the plaintiff returned to work starting 5 hours per day, 4 days per week and increasing steadily until her hours were 9 hours per day, 4 days per week.

385. From 16 August 2014 until 30 December 2014, the plaintiff’s duties were office work and going to the pit as a relief drill operator for about 1.5 hours each time. She was also required to drive a light vehicle around the pit delivering drill patterns and paperwork to the operators. From around Christmas 2014, the plaintiff drove soil samples from Mount Arthur to Gundy. From 26 January 2015, she sat in the crib room for 9 hours per day, 4 days per week. By February 2015, the plaintiff began to experience increased pain in her right hip and right leg. Her hours were reduced to 6 hours, 4 days per week.

386. The plaintiff did not require personal care during the second phase. She was capable of showering and dressing herself and tending to her personal needs. She still required domestic care for house cleaning, laundry, some meal preparation and shopping for heavy or bulky items. Per week, I allow 4 hours meal preparation, 4 hours for household cleaning and laundry, 1 hour for shopping and 3 hours for yard and home maintenance and fortnightly car washing. This totals 12 hours per week of gratuitous domestic care. I have taken into account that over this period, some weeks she may have required a little more care and some weeks a little less.

(3)   Third phase – from 19 February 2015 to date of judgment

387. The third phase was identified by Ms Barbara as ending at 19 February 2017. However, as the plaintiff has not returned to work from that date, I am calculating phase three from 19 February 2015 to the date of this judgment. For this period, Ms Barbara was of the view that the plaintiff required 23 hours per week.

388. On 19 February 2015, the plaintiff was certified unfit for work. On 9 May 2016, her employment was terminated.

389. During this period, the plaintiff’s constant back pain started to radiate to the lower part of her back. As her back and right leg pain increased, her psychological condition has deteriorated. Dr Samson says that the plaintiff’s diminished motivation, low energy and disturbed sleep has persisted at a level which undermines her ability to adequately participate in household and parenting duties. She has continued to require the support of family and friends.

390. The plaintiff has been capable of buying fresh fruit and vegetables if she uses a high trolley and packs bags lightly. She has been able to put them into her car without bending and transport them home. She may have to do a number of trips so that she avoids carrying heavy loads, or have certain items delivered. While the plaintiff’s oven is at waist level, I accept that she has had difficulty with lifting heavy pots and pans containing food onto the cooktop and into the oven.

391. During this period, I am of the view that the plaintiff has required 8 hours of domestic assistance, which included preparing some meals and other services set out earlier, as well as 3 hours per week for yard and house maintenance. These equate to 11 hours of gratuitous domestic assistance per week. She also required fortnightly car washing and fortnightly grocery delivery. The parties are to calculate this amount.

Future domestic assistance

392. Both occupational therapists accept the plaintiff requires future assistance of a commercial nature. There is a no dispute as to the rates for the provision of the services.

393. The plaintiff claims 8 hours per week domestic assistance at $48.28 per hour = $386.24; 4 hours per week yard and garden maintenance at $48.28 per hour = $193.12; fortnightly car washing at $60 per wash = $300; and weekly grocery delivery at $13 per week = $134. $622.36 x 938.2 = $583,898.15.

394. Regarding future care, the defendant has made an allowance of 4 hours per week for a further 10 years, with a reduction of 25% for vicissitudes. $46.79 x 412.9 – 25% equates to $57,959. The defendant submitted that, similar to economic loss, the deduction should be made by reason of the plaintiff’s pre-existing condition which would have given rise to her requiring care and assistance even if she had not been injured in the accident. Section 151K(3) of the Workers Compensation Act requires that fact to be taken into account, as does the law.

395. In summary, the experts’ respective positions before watching the surveillance footage were as follows.

1. Meal preparation: Ms Zeman did not allow any hours for meal preparation; Ms Barbara allowed 3 hours per week.

2. Domestic cleaning: both experts agreed to allow 3 hours per week.

3. Laundry: both experts agreed upon 2 hours per week.

4. Yard and garden: Ms Zeman allowed 2.5 hours per week; Ms Barbara allowed 4 hours.

5. Car washing: both agreed that this should be allowed fortnightly.

6. Grocery delivery: Ms Zeman said no allowance; Ms Barbara said weekly.

396. After watching the surveillance, the experts’ respective positions were:

1. Meal preparation: Ms Zeman did not allow any hours for meal preparation; Ms Barbara allowed 3 hours per week.

2. Domestic cleaning: Ms Zeman reduced her allowance to 1.5 hours per week; Ms Barbara maintained 3 hours per week.

3. Laundry: Ms Zeman reduced her allowance to nothing; Ms Barbara remained at 2 hours per week.

4. Yard and garden: Ms Zeman allowed 2.5 hours per week; Ms Barbara allowed 4 hours per week.

5. Car washing: both experts agreed with fortnightly.

6. Grocery delivery: Ms Zeman made no allowance; Ms Barbara allowed for a $13 weekly delivery fee.

397. I have set out my findings in detail under the hearing for past economic loss. The plaintiff’s condition has not changed markedly since phase three of her past domestic care, and I rely on what I said in respect of that period. I take into account that the plaintiff’s children are teenagers and capable of taking care of most of their domestic needs. I allow 1 hour for meal preparation, 3 hours for domestic cleaning and laundry, 3 hours for yard and garden maintenance, and fortnightly car washing and grocery delivery. The parties are to calculate this amount.

398. As previously stated, there is no deduction for vicissitudes of life when assessing damages for future domestic assistance: see Sharman per Gibbs and Stephen JJ.

Judgment

399. I enter judgment in favour of the plaintiff. The amount of damages is to be calculated by the parties and my arithmetic is to be checked.

Costs

400. Costs are discretionary. Usually costs follow the event. The defendant is to pay the plaintiff’s costs on an ordinary basis.

Schedule of Damages

Non-economic loss

$171,787.50

Past economic loss

To be calculated by the parties

Future economic loss

To be calculated by the parties

Fox v Wood

To be calculated by the parties

Past and future loss of superannuation

To be calculated by the parties

Past out of pocket expenses

$70,052.49

Future out of pocket expenses:

• General practitioner, psychologist and psychiatrist

• Medication

• Annual Services

• Further hip surgery

• Future equipment

• Future occupational therapy expenses

Past care

Future care

$84,483.00

$15,922.25

$21,686.85

$4,000.00

$14,918.46

To be calculated by the parties

To be calculated by the parties

To be calculated by the parties

401. I note that the defendant is entitled to a defence based upon the worker’s compensation payments that have been paid. This amount is to be ascertained by the parties as at the date of judgment.

**********

Decision last updated: 17 March 2020