Dust Diseases Tribunal
New South Wales
Medium Neutral Citation: Keogh v CPB Contractors Pty Ltd & Ors (No 2) [2024] NSWDDT 9 Hearing dates: 8, 9, 10, 11, 12, 15, 16, 19 April 2024 Date of orders: 25 July 2024 Decision date: 25 July 2024 Before: Russell SC DCJ Decision: (1) Judgment for the plaintiff against the first defendant in relation to mine dust exposure at the Poitrel and Moorvale Mines for $1,066,922.11, of which $830,800.00 is attributable to mine dust exposure at the Poitrel Mine and $236,122.11 is attributable to mine dust exposure at the Moorvale Mine.
(2) Judgment for the plaintiff against the second defendant in relation to mine dust exposure at the Moorvale Mine for $236,122.11.
(3) Judgment for the plaintiff against the third defendant in relation to mine dust exposure at the Boggabri Mine for provisional damages of $1,687,264.74.
(4) Order that the dust-related conditions in respect of which an award of further damages may be made against the third defendant (arising from mine dust exposure at the Boggabri Mine) are:
(a) Rheumatoid arthritis.
(b) Scleroderma.
(c) Progressive massive fibrosis.
(d) Lung cancer.
(5) In addition to order (3) above, judgment for the plaintiff against the third defendant in relation to mine dust exposure at the Blackwater Mine for $326,489.82.
(6) Judgment for the plaintiff against the fifth defendant in relation to mine dust exposure at the Boggabri Mine for provisional damages of $783,963.46.
(7) Declare that 100% of the sum awarded by the judgment against the fifth defendant is damages to which Part 3 Division 5 of the Workers Compensation Act 1987 (NSW) applies.
(8) Order that the dust-related conditions in respect of which an award of further damages may be made against the fifth defendant (arising from mine dust exposure at the Boggabri Mine) are:
(a) Rheumatoid arthritis.
(b) Scleroderma.
(c) Progressive massive fibrosis.
(d) Lung cancer.
(9) Order the first, second, third and fifth defendants to pay the costs of the plaintiff.
(10) Judgment for the fifth defendant against the third defendant on the Amended Fifth Cross Claim in relation to mine dust exposure at the Boggabri Mine for $548,774.42.
(11) Order the third defendant to pay the costs of the fifth defendant of and incidental to the Amended Fifth Cross Claim.
(12) Grant leave to all defendants to file cross claims within 28 days, if so advised. If any further cross claims are filed, the parties are to inform my Associate so that the cross claims can be listed before me for case management.
(13) Liberty to restore the proceedings before me if any party seeks a different costs order based upon an Offer of Compromise or other offer.
Catchwords: DUST DISEASES – coal workers pneumoconiosis – silicosis – mixed dust pneumoconiosis – emphysema – chronic obstructive pulmonary disease – psychiatric injury
DUST DISEASES – causation – negligence – exposure at multiple open cut coal mines – machine operator – extent of dust exposure – whether smoking caused the lung diseases
DUST…
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- Case
- [2024] NSWDDT 9
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues, including whether the plaintiff's lung diseases were caused by his exposure to mine dust or his smoking habit, the nature of the diseases (whether divisible or indivisible), the application of the statutory damages regime for coal miners in New South Wales, and the appropriate apportionment of damages among the defendants. The court also had to consider whether the claim was statute-barred and whether provisional damages could be awarded.
The court found that the plaintiff's dust-related conditions were caused by his exposure to mine dust at the various coal mines, not by his smoking habit. The court ruled that coal workers' pneumoconiosis was indivisible, while psychiatric injury was divisible. The court applied the New South Wales statutory damages regime, finding that the cap on damages was based on net earnings and excluded superannuation. The court also held that the claim was not statute-barred and that provisional damages could be awarded. The court apportioned damages among the defendants based on their respective contributions to the plaintiff's exposure to mine dust.
The court ordered that the defendants pay the plaintiff damages for his dust-related conditions, including coal workers' pneumoconiosis, silicosis, mixed dust pneumoconiosis, emphysema, chronic obstructive pulmonary disease, and psychiatric injury. The court also ordered the defendants to pay costs and granted leave to the defendants to file cross claims. The court made several orders regarding the apportionment of damages among the defendants, the application of the statutory damages regime, and the award of provisional damages.
Orders
Orders of the court
(1) Judgment for the plaintiff against the first defendant in relation to mine dust exposure at the Poitrel and Moorvale Mines for $1,066,922.11, of which $830,800.00 is attributable to mine dust exposure at the Poitrel Mine and $236,122.11 is attributable to mine dust exposure at the Moorvale Mine.
(2) Judgment for the plaintiff against the second defendant in relation to mine dust exposure at the Moorvale Mine for $236,122.11.
(3) Judgment for the plaintiff against the third defendant in relation to mine dust exposure at the Boggabri Mine for provisional damages of $1,687,264.74.
(4) Order that the dust-related conditions in respect of which an award of further damages may be made against the third defendant (arising from mine dust exposure at the Boggabri Mine) are:
(a) Rheumatoid arthritis.
(b) Scleroderma.
(c) Progressive massive fibrosis.
(d) Lung cancer.
(5) In addition to order (3) above, judgment for the plaintiff against the third defendant in relation to mine dust exposure at the Blackwater Mine for $326,489.82.
(6) Judgment for the plaintiff against the fifth defendant in relation to mine dust exposure at the Boggabri Mine for provisional damages of $783,963.46.
(7) Declare that 100% of the sum awarded by the judgment against the fifth defendant is damages to which Part 3 Division 5 of the Workers Compensation Act 1987 (NSW) applies.
(8) Order that the dust-related conditions in respect of which an award of further damages may be made against the fifth defendant (arising from mine dust exposure at the Boggabri Mine) are:
(a) Rheumatoid arthritis.
(b) Scleroderma.
(c) Progressive massive fibrosis.
(d) Lung cancer.
(9) Order the first, second, third and fifth defendants to pay the costs of the plaintiff.
(10) Judgment for the fifth defendant against the third defendant on the Amended Fifth Cross Claim in relation to mine dust exposure at the Boggabri Mine for $548,774.42.
(11) Order the third defendant to pay the costs of the fifth defendant of and incidental to the Amended Fifth Cross Claim.
(12) Grant leave to all defendants to file cross claims within 28 days, if so advised. If any further cross claims are filed, the parties are to inform my Associate so that the cross claims can be listed before me for case management.
(13) Liberty to restore the proceedings before me if any party seeks a different costs order based upon an Offer of Compromise or other offer.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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