Keogh v CPB Contractors Pty Ltd (No 2)

[2024] NSWDDT 9

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 DISEASES – divisible and indivisible diseases –whether coal workers pneumoconiosis is divisible or indivisible – whether psychiatric injury is divisible –there is a rational basis to apportion psychiatric injury

STATUTORY INTERPRETATION – NSW statutory damages regime applicable to coal miners – modified common law damages provisions – whether cap on damages is on nett or gross earnings – whether cap on damages includes or excludes superannuation – whether claim is statute barred – whether provisional damages can be awarded

NEGLIGENCE – apportionment between tortfeasors – employer’s non-delegable duty of care

DAMAGES – general damages – past and future economic loss – past and future superannuation – medical costs – loss of life expectancy – Fox v Wood damages – pain and suffering – psychiatric injury – apportionment of psychiatric injury

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 101

Coal Mine Health and Safety Act 2002 (NSW)

Dust Diseases Tribunal Act 1989 (NSW), ss 10(4), 10(5),11A, 12A

Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c)

Motor Accidents Compensation Act 1999 (NSW), s 125(1)

Workers Compensation Act 1987 (NSW), ss 4, 15, 16, 35, 149(1), 151D, 151E, 151F, 151G, 151H, 151I, 151J, 151L, 151M, 151S, 151Z, Part 5 Div 3, Pt 5 Div 4, Schedule 6 Part 18, cl 3

Workers Compensation and Rehabilitation Act 2003 (QLD), ss 36A, 305B, 305C, 305D, 306A(1)(a), 306C, 306D, 306E, 306F, 306G, 306H, Part 9 Div 3

Workers Compensation Legislation Amendment Act 2012 (NSW), Sch 6, Pt 19H, cl 26, Sch 7(1)

Workers Compensation Legislation Further Amendment Act 2001 (NSW), s 151G

Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), s 7A

Cases Cited:

Agresta v Sydney Water Corporation [2004] NSWDDT 8

BAE Systems (Operations) Ltd v Konczac [2017] EWCA Civ 118

BB v Helena College Council [2021] WADC 42

BHP Coal Pty Ltd Re The BMA Enterprise Agreement 2022 [2023] FWCA 115

Bourke v Victorian WorkCover Authority [1998] VSCA 24; [1999] 1 VR 189

DC v New South Wales [2016] NSWCA 198

Dingle v Associated Newspapers Ltd [1961] 2 Q.B. 163

Foster & Anor v Cameron [2011] QCA 48

Fox v Wood (1981) 148 CLR 438; [1981] HCA 41

Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1284

Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15

Headon v Amaca Pty Ltd [2022] NSWDDT 5

Kaplantzi & Anor v Pascoe [2003] NSWCA 386

Katidis v Meggitt Overseas Ltd (No. 2) [1995] NSWDDT 1

Macquarie Pathology Service Pty Ltd v Sullivan [1995] NSWCA 540

McGoldrick v Dendrobium Coal Pty Ltd [2022] NSWSC 1341

Mohr v Berrigan Quarries Pty Ltd [1995] NSW DDT 2

Mt Owen Pty Ltd v Parkes [2023] NSWCA 77

Oxley County Council v McDonald [1999] BSWCA 126

Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99

Qantas Airways Ltd v Lisica [2007] NSWCA 371

Reilly v Malabar Electric Pty Ltd [2011] NSWDDT 9

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Thompson v Smiths Shiprepairers Ltd [1984] QB 405

Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419

TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47

Texts Cited:

Black’s Medical Dictionary, 38th ed (1995)

Diagnostic and Statistical Manual of Mental Disorders, 5th ed (2013)

Queensland Parliamentary Coal Workers’ Pneumoconiosis Select Committee, Black Lung White Lies: Inquiry into the Re-Identification of Coal Workers’ Pneumoconiosis in Queensland, Report No. 2, 55th Parliament (May 2017)

R McBean et al, “Radiological Appearance of Coal Mine Dust Lung Disease in Australian Workers” (2018) 62(6) Journal of Medical Imaging and Radiation Oncology 794

The Penguin Medical Encyclopedia, 2nd ed (1982)

State Insurance Regulatory Authority, Workers Compensation Benefits Guide, April 2024

Category:

Principal judgment

Parties:

Craig Andrew Keogh (Plaintiff)
CPB Contractors Pty Ltd (First Defendant)
Campbell Mining Services Pty Ltd (Second Defendant)
Downer EDI Mining Pty Ltd (Third Defendant)
Downer Mining Regional (NSW) Pty Ltd (Fifth Defendant)

Representation:

Counsel:
S Tzouganatos/V Boutas (Plaintiff)
D Talintyre (First Defendant re Poitrel Mine)
I Griscti (First Defendant re Moorvale Mine)
D Talintyre (Second Defendant re Moorvale Mine))
D Talintyre (Third Defendant re Blackwater Mine)
G Rundle (Third Defendant re Boggabri Mine)
T Rowles (Fifth Defendant re Boggabri Mine)

Solicitors:
Shine Lawyers (Plaintiff)
BT Lawyers (First Defendant re Poitrel Mine)
Mills Oakley (First Defendant re Moorvale Mine)
BT Lawyers (Second Defendant re Moorvale Mine)
BT Lawyers (Third Defendant re Blackwater Mine)
Wotton & Kearney (Third Defendant re Boggabri Mine)
Sparke Helmore (Fifth Defendant re Boggabri Mine)

File Number(s):

DDT 2021/45484

Judgment

Introduction

The Defendants

Poitrel Mine

Moorvale Mine

Boggabri Mine

Blackwater Mine

The Diseases

Coal Workers Pneumoconiosis

Silicosis

Mixed Dust Pneumoconiosis

Chronic Obstructive Pulmonary Disease

Emphysema

Liability: Evidence of Mr Keogh and Others Concerning Exposure

Early Life

Western Australian Dust Exposure

Norseman Mine

Fimiston Mine

Granny Smith Mine

Sandstone Mine

Cataby Mine

Yarrie and Nimingarra Mines

Western Australian Mines Generally

Findings of Fact in Relation to Western Australian Dust Exposure

Poitrel Mine

Evidence of Mr Keogh

Evidence of Mr Smith

Findings of Fact in Relation to Poitrel Mine

Liability Finding in Relation to Poitrel Mine

Moorvale Mine

Evidence of Mr Keogh

Evidence of Mr Smith

Evidence of Mr Haynes

Evidence of Ms Lara

Evidence of Ms Topping

Findings of Fact in Relation to Moorvale Mine

Liability Findings in Relation to Moorvale Mine

Boggabri Mine

Evidence of Mr Keogh

Evidence of Mr Bailey

Findings of Fact in Relation to Boggabri Mine

Liability Findings in Relation to Boggabri Mine

Blackwater Mine

Evidence of Mr Keogh

Evidence of Mrs Beverley Keogh

Findings of Fact in Relation to Blackwater Mine

Liability Finding in Relation to Blackwater Mine

Work After Blackwater Mine

Evidence of Mr Keogh

Findings of Fact in Relation to Work after Blackwater Mine

Credit of Mr Keogh in Relation to Liability

Liability: Is the Damage Divisible or Indivisible?

Respiratory Damage: Principles and Authorities

Respiratory Damage: Consideration

Psychiatric Damage: Principles and Authorities

Psychiatric Damage: Consideration

Apportionment: Findings of Fact

Quantum: Preliminary Observations

Quantum: Medical Issues

Quantum: Evidence of Mr Keogh

First Affidavit of Mr Keogh

Second Affidavit of Mr Keogh

Oral Evidence-in-Chief

Cross-Examination

Re-Examination

Quantum: Medical Evidence

Evidence of Dr Edwards

Evidence of Dr Jones

Evidence of Dr Brown

Evidence of Dr O’Toole

Evidence of Dr Likely

Evidence of Dr Chalk

Findings on Medical Issues

Respiratory Issues

Psychiatric Issues

Smoking

Drinking Alcohol

Life Expectancy

Quantum Evidence: Need for Care and Assistance

Evidence of Dr Edwards

Evidence of Ms Cogger, Occupational Therapist

Evidence of Ms Hammond, Occupational Therapist

A Legal Issue re Care and Assistance: Section 306H of the Workers Compensation and Rehabilitation Act 2003 (Qld) (WCR Act)

Part 9 Division 3 of the WCR Act

Submission for Defendants

Submission for the Plaintiff

Evidence Relied Upon by the Queensland Defendants

Evidence Relied on by the Plaintiff

Consideration

Findings on Care and Assistance

Quantum: Out-of-Pocket Expenses

Past Out-of-Pocket Expenses

Future Out-of-Pocket Expenses

Findings on Out-of-Pocket Expenses

Quantum: Economic Loss Past and Future

Documentary Evidence for the Plaintiff

No Documentary Evidence for the Defendants

Past Economic Loss: Submissions for Plaintiff

Past Economic Loss: Submissions for the Defendants

Findings in Relation to Past Economic Loss

Fox v Wood Damages

Future Loss of Earning Capacity: Submissions for the Plaintiff

Future Loss of Earning Capacity: Submissions for the Defendants

Findings in Relation to Future Loss of Earning Capacity

Quantum: General Damages

Summary of Common Law Assessment of Damages against First, Second and Third Defendants

Damages against Downer Regional

Which Version of the Workers Compensation Act 1987 (NSW) Applies?

Is the Claim Statute Barred?

Can the Tribunal Award Provisional Damages?

Causation and Contributing Factor

Date of Injury

Non-Economic Loss

Economic Loss: Serious Injury

Economic Loss: Cap on Earnings

Superannuation

Failure to Mitigate

Interest

Apportionment of Damages and Costs

Summary of Modified Common Law Assessment of Damages for the Fifth Defendant

Cross Claim by Downer Regional against Downer EDI

Defence to Amended Statement of Fifth Cross Claim

The Contribution Legislation

Evidence on the A5CC

Written Submissions

Downer Regional Oral Submissions

Downer EDI Oral Submissions

The Judgment in Parkes

Cross Appeal Between Titan and Mt Owen

Consideration

Conclusion

Other Potential Cross Claims

Orders

Judgment

Introduction

1. Mr Craig Keogh is a 52-year-old man who sues by an Amended Statement of Claim filed on 27 March 2024 (ASOC) seeking damages for injuries said to be attributable to exposure to dust while working in coal mines in Queensland and New South Wales. Mr S Tzouganatos with Ms V Boutas appeared for the plaintiff, instructed by Shine Lawyers.

2. Mr Keogh alleges that he suffers from the following diseases and conditions as a result of his dust exposure while working in the mines:

1. Coal workers pneumoconiosis (CWP).

2. Silicosis.

3. Mixed dust pneumoconiosis.

4. Chronic obstructive pulmonary disease (COPD).

5. Emphysema.

6. Adjustment disorder with mixed anxiety and depressive mood.

7. Moderate/major depressive disorder.

3. In relation to dust exposure in Queensland, damages are sought on a final basis. In relation to dust exposure in New South Wales, provisional damages are sought pursuant to s 11A of the Dust Diseases Tribunal Act 1989 (NSW) (DDT Act). Mr Keogh also seeks an order pursuant to s 11A of the DDT Act that further damages may be claimed by him in respect of the following conditions attributable to exposure to dust in New South Wales, should they develop:

1. Rheumatoid arthritis.

2. Scleroderma.

3. Progressive massive fibrosis.

4. Lung cancer.

4. Mr Keogh also claims interest and costs.

5. Different statutory modifications of the common law apply to the assessment of damages arising from torts committed in different States.

6. A further legal issue to be determined is whether the respiratory diseases, and/or the psychiatric conditions, are divisible or indivisible damage.

7. This is the first case involving CWP decided in the Dust Diseases Tribunal (the Tribunal). It is also the first case concerning CWP decided in any of the courts in New South Wales or Queensland.

The Defendants

8. On 12 February 2024 an order was made that the first defendant have separate legal representation in relation to Mr Keogh’s work at the Poitrel Mine (Poitrel) at Coppabella in Queensland and the Moorvale Mine, also at Coppabella.

9. On the first day of the hearing the third defendant applied for a separate representation order in relation to the Boggabri Mine (Boggabri) in New South Wales. A separate representation order was granted. This late application caused some confusion in the recording of appearances on the first page of each day of the transcript. The correct appearances for each party, including those separately represented, are set out in MFI 5.

10. In outlining the nature of the claim brought against each defendant, and the issues to be decided, it is convenient to deal with them mine by mine, since two of the defendants have separate representation.

Poitrel Mine

11. Mr Keogh alleges in his ASOC that between November 2008 and 3 September 2012 (46 months) he was employed at Poitrel to operate diggers, dozers and graders. Mr Keogh sues the first defendant CPB Contractors Pty Ltd (CPB) alleging that it was the occupier, manager and operator at Poitrel (ASOC par 2), and further that CPB employed Mr Keogh at Poitrel (ASOC par 3).

12. Mr Talintyre of counsel, instructed by BT Lawyers, appeared for CPB in relation to Poitrel. The Further Amended Defence of CPB filed on 10 April 2024 raised the following liability issues (references to paragraph numbers below are references to paragraphs in that Further Amended Defence):

1. CPB breached its duty of care owed to Mr Keogh in relation to his employment by CPB at Poitrel (par 12(c)).

2. CPB did not operate, manage or occupy Poitrel, but was engaged on behalf of the mine operator BHP Billiton Mitsubishi Alliance to provide services at Poitrel between January 2006 and July 2011 (par 2).

3. CPB did employ Mr Keogh at Poitrel as a machine operator (par 3).

4. Mr Keogh was exposed to coal dust in the course of his employment by CPB at Poitrel (par 4).

Moorvale Mine

13. Mr Keogh alleges that between 15 January 2013 and 15 March 2013 (2 months) and later between 14 September 2013 and 13 August 2014 (11 months) he was employed at the Moorvale Mine (Moorvale) by the second defendant Campbell Mining Services Pty Ltd (Campbell) (ASOC par 6). Mr Talintyre of counsel, instructed by BT Lawyers, appeared for Campbell.

14. The Further Amended Defence of Campbell filed on 10 April 2024 raised the following liability issues (references to paragraph numbers below are references to paragraphs in that Further Amended Defence):

1. Campbell admits that if CPB breached its duty of care to the plaintiff in respect of the plaintiff’s work at Moorvale, then Campbell will be deemed to have breached its non-delegable duty of care to the plaintiff (par 12(d)).

2. Campbell admits that it employed Mr Keogh at Moorvale between 15 January 2013 and 31 March 2013.

3. Mr Keogh did not inhale dust including coal dust in the course of his employment at Moorvale because: his only work duties were to operate diggers, dozers and graders; all diggers, dozers and graders incorporated sealed air-conditioned cabins; no coal or other dust penetrated the cabins of the machinery operated by Mr Keogh in the course of his employment (par 7(b)).

4. Campbell admits that it owed Mr Keogh a duty of care and says that the duty is properly stated as a duty to take reasonable care to avoid exposing the plaintiff to the unnecessary risk of foreseeable injury in the course of his employment, such duty being modified by the operation of ss 305B, 305C and 305D of the Workers Compensation and Rehabilitation Act 2003 (QLD) (the WCR Act) (par 9(c)).

5. Campbell says it was not foreseeable that:

1. That the plaintiff would inhale coal dust in the course of his employment at Moorvale.

2. That the quantity of coal dust the plaintiff might inhale created a foreseeable risk of the plaintiff contracting a lung disease.

3. That the quantity of coal dust the plaintiff might inhale at Moorvale created a foreseeable risk of the plaintiff suffering CWP or mixed dust pneumoconiosis.

4. That the quantity of dust that the plaintiff might inhale at Moorvale would cause the plaintiff to suffer secondary psychiatric injury (par 10(b)).

6. Campbell supplied the plaintiff’s labour to CPB to work at Moorvale under a labour hire arrangement and CPB devised, implemented and enforced the system of work, supplied and maintained the plant and equipment and controlled all aspects of the work performed by Mr Keogh at Moorvale (par 12(c)(i) and (ii)).

7. Neither the plaintiff nor any other employee of Campbell working at Moorvale advised Campbell that the cabins of the earthmoving equipment were unsafe or were not adequately sealed to prevent the ingress of coal dust (par 12(c)(v)).

15. For both periods of employment at Moorvale, Mr Keogh has sued CPB as the occupier, manager and operator of Moorvale (ASOC par 5). Pursuant to the first separate representation order, CPB was separately represented in relation to Moorvale by Mr Griscti of counsel, instructed by Mills Oakley.

16. The Further Amended Defence of CPB filed on 10 April 2024 raised the following liability issues (references to paragraph numbers below are references to paragraphs in that Further Amended Defence):

1. CPB was not the occupier, manager and operator of Moorvale, but CPB was engaged by the mine operator Peabody Energy Australia (PCI) (C&M Management) Pty Ltd to provide services at Moorvale from May 2009 until September 2014 (par 5).

2. Mr Keogh was employed by Campbell between 15 January 2013 and 31 March 2013 at Moorvale as a machine operator (par 6(a)).

3. Mr Keogh did not inhale dust including coal dust in the course of his employment because: his only work duties were to operate diggers, dozers and graders; all diggers, dozers and graders incorporated sealed air-conditioned cabins; no coal or other dust penetrated the cabins of the machinery operated by Mr Keogh in the course of his employment (par 7(c)).

4. CPB owed Mr Keogh a duty to take reasonable care to avoid exposing the plaintiff to the unnecessary risk of foreseeable injury in the course of his employment, such duty being modified by the operation of ss 305B, 305C and 305D of the WCR Act (par 9(d)).

5. It was not foreseeable:

1. That the plaintiff would inhale coal dust in the course of his employment at Moorvale.

2. That the quantity of coal dust the plaintiff might inhale created a foreseeable risk of the plaintiff contracting a lung disease.

1. That the quantity of coal dust the plaintiff might inhale at Moorvale created a foreseeable risk of the plaintiff suffering CWP or mixed dust pneumoconiosis.

2. That the quantity of dust that the plaintiff might inhale at Moorvale would cause the plaintiff to suffer secondary psychiatric injury (par 10(c)).

6. CPB provided a safe place of work for the plaintiff at Moorvale (see par 12(e) which sets out this allegation in much more detail).

Boggabri Mine

17. Mr Keogh alleges that he was employed at Boggabri between 15 September 2014 and 15 June 2016 (21 months).

18. Mr Keogh alleges that the third defendant Downer EDI Mining Pty Ltd (Downer EDI) was the occupier, operator and manager of Boggabri during his entire time at Boggabri (ASOC par 8). Downer EDI was separately represented for these periods by Mr Rundle of counsel, instructed by Wotton & Kearney.

19. The Further Amended Defence of Downer EDI filed on 10 April 2024 raised the following liability issues (references to paragraph numbers below are references to paragraphs in that Further Amended Defence):

1. Downer EDI admits that it was the operator of Boggabri (par 3(a)).

2. Downer EDI denies that it employed the plaintiff and says that the fifth defendant Downer Mining Regional (NSW) Pty Ltd (Downer Regional) was the plaintiff’s employer at the relevant time (par 5).

20. For the first eight months between 15 September 2014 and 13 May 2015, Mr Keogh alleges that he was employed by Programmed Integrated Workforce Ltd (Programmed) (ASOC par 9). Programmed was sued as the fourth defendant, but the claim against Programmed has resolved and it took no part in the hearing.

21. Mr Keogh alleged that at Boggabri, between 13 May 2015 and 15 June 2016 (13 months), he was employed by Downer EDI and by the fifth defendant Downer Regional (ASOC par 11). Mr Rowles of counsel, instructed by Sparke Helmore, appeared for Downer Regional.

22. The Defence of Downer Regional dated 4 April 2024 raised the following liability issues (references to paragraph numbers below are references to paragraphs in that Defence):

1. Downer Regional admits that it employed the plaintiff from 8 May 2015 to 15 June 2016 (par 4).

2. Downer Regional admits that it owed a duty of care to the plaintiff during that period of employment (par 7).

3. Downer Regional does not admit that it knew or ought to have known that if the plaintiff was exposed to and inhaled coal dust there was a real risk that he could contract lung diseases including CWP and mixed dust pneumoconiosis and suffer psychiatric injuries as a consequence (par 8).

4. Downer Regional denies that it was negligent as pleaded in par 19 of the ASOC and denies that it breached the New South Wales statutory duties pleaded in par 19 of the ASOC (par 9).

5. Downer Regional denies that it breached its contract of employment with Mr Keogh, as pleaded in par 20 of the ASOC (par 10).

6. Downer Regional pleads contributory negligence (as fully set out in par 13 of the Defence).

23. An Amended Fifth Cross Claim dated 4 April 2024 (A5CC), relating to exposure at Boggabri, was also heard in these proceedings. The cross claimant was Downer Regional and the cross defendant was Downer EDI. Mr Rowles of counsel, instructed by Sparke Helmore, appeared for Downer Regional and Mr Rundle of counsel, instructed by Wotton & Kearney, appeared for Downer EDI. The A5CC claims indemnity for or contribution towards any liability of Downer Regional to Mr Keogh. The claim is made pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

Blackwater Mine

24. Mr Keogh alleged that between June 2016 and late October 2017 (16 months) he was employed at the Blackwater Mine (Blackwater) by Downer EDI (ASOC 14). He also pleaded that Downer EDI was the occupier, manager and operator of Blackwater at that time (ASOC par 13). Mr Talintyre of counsel, instructed by BT Lawyers, appeared for Downer EDI in relation to this period.

25. The Further Amended Defence of Downer EDI filed on 10 April 2024 raised the following liability issues (references to paragraph numbers below are references to paragraphs in that Further Amended Defence):

1. Downer EDI admits that it breached its duty of care owed to Mr Keogh when he was employed by Downer EDI at Blackwater (par 14(b)).

2. Downer EDI denies that it occupied, managed or operated Blackwater but says that it was engaged by BM Alliance Coal Operations Ltd to provide mining services at Blackwater (par 8).

3. Downer EDI admits that it employed the plaintiff to operate diggers and dozers at Blackwater between the dates alleged but denies that it employed the plaintiff to operate graders at Blackwater (par 9).

4. Downer EDI admits that Mr Keogh was exposed to coal dust in the course of his employment at Blackwater (par 10).

5. Downer EDI does not admit that it knew or ought to have known that if Mr Keogh was exposed to and inhaled dust including coal dust, there was a real risk that he could contract lung diseases including CWP and mixed dust pneumoconiosis and suffer psychiatric injuries as a consequence (par 12(b)).

The Diseases

Coal Workers Pneumoconiosis

26. Pneumoconiosis is a broad term for lung diseases where the inhalation of dust has caused interstitial fibrosis, which is scarring in the lungs.

27. The plaintiff tendered the report of a Queensland Parliamentary Select Committee entitled “Black lung white lies” (PX 17). This report inquired into the re-identification of CWP in Queensland. The following appears at p 56 of PX 17:

“CWP is a type of pneumoconiosis solely caused by prolonged exposure to coal mine dust. It is one of a broad group of coal mine dust lung diseases (CMDLD) caused by exposure to respirable coal mine dust over several years. Disease develops from the deposit of dust particles and the reaction of the lung tissue to the dust.

There are three primary types of lung disease that are classified as pneumoconiosis:

•    asbestosis, cause by the inhalation of asbestos dust particles

•   silicosis, caused by the inhalation of silica dust particles, and

•    CWP, caused by the inhalation of fine coal dust particles.

Emphysema, chronic bronchitis, lung function impairment, and diffuse dust-related fibrosis are other manifestations of CMDLD.”

28. The Parliamentary Select Committee also reported as follows:

1. CWP may take several years to develop and there are often no symptoms in the early stages of the disease (PX 17, p 57).

2. CWP is often associated with emphysema (PX 17, p 57).

3. The development of CWP usually requires lengthy exposure to coal dust and generally develops slowly (PX 17, p 60).

4. A significant problem in diagnosing respiratory diseases such as CWP is that there is a long latency period before symptoms emerge (PX 17, p 60).

5. There is no cure for CWP, and treatment consists of managing the symptoms (PX 17, p 61). Damage to the lungs caused by coal dust inhalation cannot be reversed (PX 17, p 61).

6. CWP is completely preventable through avoiding or limiting exposure to coal dust (PX 17, p 61).

7. The risk of developing CWP is directly related to the magnitude and duration of exposure to coal mine dust. The latency period between exposure and development of CWP may be prolonged, but decreases with increases in dust inhalation levels (PX 17, p 61).

Silicosis

29. Silicosis is a lung disease that causes scarring to the lungs. Silicosis is caused by prolonged exposure to respirable crystalline silica (RCS) or quartz dust. Silica is considered more likely to be harmful to the lungs than respirable coal dust. This is in part due to the macrophages (white blood cells which combat pathogens) in the lung releasing a toxic substance when they engulf silica particles, causing reactive fibrosis or scar tissue to form. If the volume of fine silica is excessive, lung function becomes permanently damaged, giving rise to the progressive disease known as silicosis (PX 17, p 61).

30. Silicosis may take several years to develop, with few or no symptoms in the early stages of the disease. There is no cure, but early detection is vital, as progression of the disease can be slowed if exposure to RCS is avoided (PX 17, p 62).

Mixed Dust Pneumoconiosis

31. Mixed dust pneumoconiosis is the disease process resulting from prolonged exposure to both respirable coal and silica dust. Mixed dust pneumoconiosis nodules are a hybrid between CWP and silicosis nodules (PX 10, p 2).

Chronic Obstructive Pulmonary Disease

32. COPD is an airways disease where there is narrowing of the medium and small airways due to loss of bronchial tone. It is due to collapsibility of the airways. It may be evident in dust diseases such as asbestosis or silicosis. It is a disease of the airways, rather than the periphery or the interstitial areas of the lung. The conducting tubes become inflamed and thickened and more collapsible than normal, so that when someone breathes out, the airways will collapse and reduce the airflow: Headon v Amaca Pty Ltd [2022] NSWDDT 5 at [83].

Emphysema

33. Emphysema is a sub-type of COPD. It results in over-distension of the air cells in the lungs, and the partial destruction of the lung walls. This gives rise to the formation of large sacs, from the rupture and running together of a number of contiguous air vesicles: Black’s Medical Dictionary, 38^th ed (1995). There is over-inflation of the air spaces with loss of the thin dividing walls between spaces, where exchange of oxygen and carbon dioxide should take place: The Penguin Medical Encyclopedia, 2^nd ed (1982).

Liability: Evidence of Mr Keogh and Others Concerning Exposure

34. Mr Keogh gave evidence-in-chief primarily through two affidavits (PX 1, Tabs 1 and 2). He also gave oral evidence-in-chief and was cross-examined.

Early Life

35. Mr Keogh was born in September 1971 and is presently 52 years of age. He lived with his mother and father and three siblings in rural Victoria. He left high school in Grade 11, in 1988. He was 17 years old at the time.

36. Mr Keogh started work not long after he left school. He worked for a few months at the local supermarket stocking shelves. He worked as a bank teller for the State Bank of Victoria for three to four years. He worked from about 1992 until 2004 in hotels. He worked as a bartender and also did security work. Mr Keogh was not exposed to dust in any of those jobs.

Western Australian Dust Exposure

37. It is necessary to consider Mr Keogh’s possible dust exposure in several jobs in Western Australia because he may have been exposed to silica there. If there was silica exposure in Western Australia, that would have contributed to his disease of silicosis. In legal terms, there could be an “empty chair” in relation to the apportionment of responsibility for the development of silicosis. There was no coal dust exposure in Western Australia and thus the employment in that State is not relevant to that part of the case concerning CWP and mixed dust pneumoconiosis.

Norseman Mine

38. In 2004 Mr Keogh left the hotel industry and moved to Kalgoorlie looking for work. He was offered a position with 3D Earth Moving. He was sent to the Norseman Mine (Norseman) as a digger operator. Norseman was an underground coal mine.

39. Mr Keogh’s job at Norseman was to raise the level of the tailings dam. His job was to dig out land mass from a burrow pit, using a digger. The material was then loaded into dump trucks and dumped on top of the dam wall. All of his work was above ground. Mr Keogh said that the spoil which he dug out was clay. There was no rock involved in this work. Once the spoil had been dumped on the dam wall, he used the bucket of the excavator to flatten the edges of the tailings dam wall. Mr Keogh was the only person operating a digger near the tailings dam. There was a water truck which was operating around the tailings dam at all times.

40. The area of Norseman where Mr Keogh worked was “not a particularly dusty environment”. Before he started digging the ground, the area where he worked was flooded with water to make it softer and easier to dig. This reduced the amount of dust that was produced by the digging. The water truck also suppressed any airborne dust. Mr Keogh operated the digger from an enclosed air-conditioned cabin which had good seals and windows that stayed closed. He said that “some very limited dust may have entered my cabin whilst I was working but this was negligible compared to the dust I was later exposed to at coal mines in Queensland and NSW”.

41. Mr Keogh worked at Norseman for around six months.

42. Mr Keogh was cross-examined about his dust exposure at Norseman by Mr Talintyre (Tcpt 50/23 – 51/31). Mr Keogh said that he did not see any other surface machinery in operation. He described the dust to which he was exposed as “very minimal”. Mr Keogh acknowledged that the trucks driving around would have generated some dust from their tyres. There were two excavators at Norseman which Mr Keogh drove. They were both a couple of years old and “were in good nick”. They did not have a pressurised cabin, but they had air-conditioning for the cabin. Mr Keogh agreed that at least some dust got into the cabin of the excavators while he was working at Norseman. Mr Keogh also acknowledged that some dust would have got into the ute which drove him from the sign-on area each day to where the excavator was located.

43. There was no cross-examination to suggest that Mr Keogh was exposed to rock dust at Norseman.

Fimiston Mine

44. In October 2004 Mr Keogh started work for Cape Crushing at the Fimiston Open Cut Gold Mine (Fimiston) in Western Australia. He worked 12-hour shifts for five days a week. Mr Keogh worked there as a loader operator, which involved operating a machine similar to a digger except that the bucket faces outwards and not inwards. Mr Keogh operated in a deep pit, known as the “Super Pit” about 400 metres below the surface. He worked around the “shovel”, which was an 800-tonne piece of digging equipment. The shovel, the dump trucks and Mr Keogh’s loader worked in recently blasted areas to remove the spoil generated by the blast. The ground dug out by the shovel and moved by Mr Keogh in the loader was generally rock. There was a water truck working around Mr Keogh constantly.

45. Mr Keogh said in his affidavit that the dust at the Super Pit was minimal. Any dust that was produced by the shovel was effectively mitigated by the water truck. The loader had a sealed, air-conditioned cabin “which kept the negligible dust produced away from me as I worked”. The seals and windows on the machine were in good condition.

46. In oral evidence-in-chief Mr Keogh said that Cape Crushing were fanatical about the cleanliness of their machines. Workers were given 15 minutes at the end of every shift to clean all the windows, clean inside the cab and put Armor All on the floor and the seats. He described the cabin after that process as “spotless”. Mr Keogh said that the seals of the doors were in excellent condition.

47. Mr Keogh was cross-examined by Mr Talintyre (Tcpt 52/1-31) about his dust exposure at Fimiston. He said that his loader was kept about 30 or 40 metres away from the shovel while the shovel was in operation. Dust from the shovel would reach his machine. Mr Keogh did not know what sort of rock he was digging, as he was “pretty new to the industry back then”. Mr Keogh agreed that at least some dust would get into the cabin of the loader while he was doing his work.

Granny Smith Mine

48. In January 2005 Mr Keogh started work operating diggers, dozers and graders for Hamptons Transport. He worked at the Granny Smith Mine (Granny Smith), which was an open cut and underground gold mine in Western Australia. All of his work was done above ground. He worked 12-hour shifts on a roster of two weeks on and one week off.

49. At Granny Smith Mr Keogh worked on developing a new tailings dam. He was excavating land mass and depositing the spoil into dump trucks. These trucks then dumped the spoil on the wall. He described the spoil as “a clay-like substance”. When operating a grader or a dozer, he would run the machine along an uneven surface to flatten it. These machines pushed dirt around the site. He used the dozer to spread the soil along the dam wall. Mr Keogh said that the machines were in good repair and the seals and windows were “fine”. Mr Keogh said “I was not exposed to any significant levels of dust at the Granny Smith Mine”. He said that there was a water truck operating close to him as he worked, and that this water truck controlled any dust. He stayed at Granny Smith for about nine months.

50. In oral evidence-in-chief Mr Keogh said that there was no rock involved in building the tailings dam. He said that tailings dams are made of clay, and you simply do not put rock in a tailings dam. Any rock in the wall of a tailings dam would cause it to break and leak.

51. Mr Keogh was cross-examined by Mr Talintyre about his work at Granny Smith (Tcpt 52/32-49).

52. Mr Keogh acknowledged that some of the work involved machines breaking rock. He was a couple of kilometres away from the mine pit when he was digging spoil. Mr Keogh accepted that some of the dust at Granny Smith thrown up by his machine and the trucks around him would have made its way into the cabin of his machine.

Sandstone Mine

53. In late 2005 Mr Keogh started working at the Sandstone Mine (Sandstone), where gold was mined. He worked on a new Komatsu 1250 digger. This machine had an enclosed, air-conditioned cabin. Mr Keogh was involved in preparing a new area for mining by digging away the overburden to create the pit. This was a new area, so the pit was only shallow. He operated his machine about four to five metres below the surface, in the open air.

54. The overburden he was digging was not sandstone but was topsoil. Once he got deeper it was hard compressed dirt. He said, “there was no rock at this mine”.

55. Mr Keogh was the only digger operator, and he worked alongside a few dump trucks. The land mass he dug out to create the pit was put into the dump trucks and then taken away to be discarded. He kept digging the topsoil until the ground became too hard to dig. At that time he moved to begin working on a different area. Explosives were used to blast the hard overburden, and he returned to the blast sites one to two weeks after the blast to remove the overburden. He put the overburden into dump trucks to be taken away. Mr Keogh said that a water truck operated in his area at all times. He occasionally operated a grader to create flat surfaces in the mine.

56. Mr Keogh said that Sandstone was not a particularly dusty environment. Some dust was produced when the machinery was in contact with the dirt, but he had negligible exposure to dust inside his cabin which was enclosed. Further, the water truck stayed close to him as he worked. Mr Keogh worked at Sandstone for about nine months.

57. In oral evidence-in-chief Mr Keogh said that there was no sandstone in the mine, and the name of the mine came from the name of a nearby town called Sandstone. He said that the machine he used was a brand-new machine which was in “good nick”.

58. Mr Keogh was cross-examined by Mr Talintyre about his time at Sandstone (Tcpt 52/50 - 53/20). Mr Keogh said that his excavator worked alongside four small dump trucks. He accepted that some of the dust would have got into the cabin of his excavator. This was so “even though it was a pretty good excavator that one”.

Cataby Mine

59. In January 2006 Mr Keogh started working at the Cataby Open Cut Mineral Sands Mine (Cataby) as the operator of diggers, dozers and graders. He worked 12-hour days on a two week on, one week off roster. He used the diggers to collect sand. Dump trucks operated around him to take away the sand to stockpiles. Most of time he drove a Hitachi 3600 digger, which had an enclosed, air-conditioned cabin. He was operating in a pit around 10-15 metres below ground, in the open air. Mr Keogh also used graders to level out haul roads and the pit floor. A water truck was always in operation near him.

59. Mr Keogh said that the dust at this mine site was “negligible”. He said that the seals on the cabin of his machine were extremely good at keeping out whatever dust was produced. He said, “I was exposed to hardly any dust during this period”. Mr Keogh worked at Cataby for about six to nine months.

60. There was no cross-examination specifically about Cataby.

Yarrie and Nimingarra Mines

62. In September 2006 Mr Keogh started a job with CPB at the Yarrie and Nimingarra Mines, operating diggers, dozers and graders. Both were open cut iron ore mines in the Pilbara. Mr Keogh spent 95% of his time at the Yarrie Mine (Yarrie) as the Nimingarra Mine (Nimingarra) was put into care and maintenance in 2007.

63. At Yarrie Mr Keogh removed overburden from the iron ore. The overburden was then pushed away by a dozer. Mr Keogh also operated diggers and dozers to collect iron ore and load it into trucks. The pit in which he performed this work was about 40 metres deep. There was usually a water truck operating near him.

64. Mr Keogh said that dust was produced when diggers and dozers moved spoil. Compared to other mines in which he had worked, there were more machines working in the pit at Yarrie. He observed more dust in the air than he had at previous mines. Some this dust entered the cabin of his machinery.

65. When Mr Keogh worked at Nimingarra, he was a supervisor who drove a Landcruiser to observe the machinery operators perform their work. He stayed in the car with the windows up and the air-conditioning on.

66. Mr Keogh said that at both Yarrie and Nimingarra it was all hard rock mining. This was the first time he had come across this. He worked there for a bit over two years. The last 12 months was spent solely as a supervisor. He was not operating machinery during this time. When he was driving the Landcruiser and watching the machine operators perform their work, he was about 100 metres away. This period of work “was not dusty at all”.

67. In oral evidence-in-chief Mr Keogh was asked to compare the dust at Yarrie with the dust in his later work at open cut coal mines in Queensland and New South Wales. He said that the comparison was “totally different” and “very minimal”. Mr Keogh said that in Queensland the crews were bigger and the machines were bigger. There were more machines running around the pits in Queensland. He said that his reaction to the dust he observed in Queensland was a “wow factor”. In Western Australia there was a little bit of dust but not all the time. In the Queensland mines there was dust all the time.

68. Mr Keogh was asked to compare the Yarrie exposure with the Boggabri exposure. He said that Boggabri was “disgusting”. He said that he just shook his head and could not believe the amount of dust he saw at Boggabri.

69. Mr Keogh was cross-examined by Mr Talintyre about Yarrie and Nimingarra (Tcpt 56/30-43). Mr Keogh acknowledged that he did not sit in the Landcruiser for 12 hours a day but got out from time to time to stretch his legs or have a cigarette. This possibly exposed him to dust from work that was going on 100 metres away. It depended on which way the wind was blowing.

Western Australian Mines Generally

70. Mr Talintyre cross-examined Mr Keogh about the general conditions in Western Australian mines (Tcpt 53/21 - 56/30). Mr Keogh agreed that some dust got into the cabin of every machine he operated. This was so, irrespective of how old the machine was or how well it was maintained. Some dust would get into the cabin.

71. Mr Keogh agreed that when he had to clean out the cabin of the machinery while working for Cape Crushing, there was always dust inside the cabin to clean out. He did this every shift. At the other mines in Western Australia the cabins were cleaned sometimes, but sometimes they were not. Mr Keogh agreed that even though he worked on fairly new machines in Western Australia, dust would still get in. From time to time there was a seal not working properly on those machines. Mr Keogh said that the dust was more noticeable in the cabins in Queensland and New South Wales, particularly because it was black and very fine.

72. Mr Keogh said that in the various mines where he worked in Western Australia, the crib rooms were always a long way away from the mine. No dust reached the crib rooms.

73. Mr Keogh agreed that in each of the mines he worked in Western Australia, except for Cataby, there was some sort of rock blasting that went on. Mr Keogh said that while there was blasting at Norseman and Granny Smith, he was not working where the blasting was going on. That was happening a couple of kilometres away from where he was digging spoil to make tailings dam walls. Mr Keogh agreed that blasting rock created dust. These blasts were controlled, and he was not allowed to go into the pit until the dust had cleared. He said that he never sat inside machines when blast dust settled on those machines. The machines were left in the pit, but every worker had to be evacuated from the pit area before a blast took place.

Findings of Fact in Relation to Western Australian Dust Exposure

74. I make the following findings of fact in relation to Western Australia dust exposure:

1. There was no exposure to coal dust at any site in Western Australia.

2. There was no exposure to rock dust at Norseman and thus no exposure to RCS.

3. There was no evidence of the kind of rock dust to which Mr Keogh was exposed at Fimiston and thus no evidence of exposure to RCS. Further, any dust was effectively damped down by the water trucks, and the machine which Mr Keogh operated had effective seals and windows. Even if there was RCS in some of the rock dust to which Mr Keogh was exposed, I regard such exposure as de minimis.

4. There was no exposure to rock dust at Granny Smith and thus no exposure to RCS.

5. There was no exposure to rock dust at Cataby and thus no exposure to RCS.

6. There was exposure to hard rock dust at Yarrie and Nimingarra. There was no evidence that such rock dust contained RCS. Further, there was efficient water damping of the dust provided on a regular basis at both mines. Finally, for the last 12 months at Yarrie, Mr Keogh was a supervisor and had no exposure to rock dust. Even if there was RCS in some of the rock dust to which Mr Keogh was exposed, I regard such exposure as de minimis.

75. My conclusion from these findings of fact is that there is no “empty chair” in relation to silicosis (a divisible disease, as discussed below) because there is no evidence of exposure to RCS during any period of employment in Western Australia. Even if there was exposure to RCS in Western Australia, I find that such exposure was de minimis.

Poitrel Mine

Evidence of Mr Keogh

76. Mr Keogh gave the following evidence in his first affidavit (PX 1, Tab 1). In November 2008 Mr Keogh was approached by CPB to transfer within the company to work as the operator of diggers, dozers and graders at the Poitrel Coal Mine (Poitrel) in Coppabella in Queensland. This was an open cut coal mine. Most of his dealings were with CPB. They were his day-to-day contact at the mine and they gave him instructions about where he was working and what he was to do.

77. Poitrel operated on a 24-hour basis and Mr Keogh worked 12-hour shifts. He usually spent about 10.5 hours in a machine during each shift. The mine was a much bigger operation than any of the places he had worked in before. His job was to prepare new areas for mining by removing the overburden and “cleaning” the coal seam. He was then engaged in digging coal, moving or redistributing the coal stockpiles and flattening areas with a grader. He regularly disturbed rock in which coal was located. He worked in a pit around 100 metres deep. Diggers were used to remove as much of the overburden as possible so that the coal seam was exposed. To “clean” the coal seam, the digger would drive across the exposed coal bed to remove the final layer of dirt with the bucket. Initially, digging was done in topsoil, but when the digger hit rock, this had to be blasted. After the blast Mr Keogh would come back to the area with his digger and dig out the blasted rock until the coal seam was reached. Mr Keogh was predominantly digging through hard rock which was very dusty work. He said, “Poitrel was one of the dustiest places I have ever worked”.

78. Whenever the bucket of the digger or dozer came into contact with the coal seam, significant airborne dust was produced. Such dust was also produced by other diggers and dozers working nearby. Mr Keogh could see this airborne dust “for the entirety of the time that I performed this work”. He said, “there were clouds of it”.

79. Before Mr Keogh commenced digging a coal seam, he had to get out of his machine and inspect the coal seam to see how deep the layer was. He did this a couple of times per shift. Dust was also thrown up when the digger was used to move or redistribute the stockpiles of coal. He said that “significant airborne dust was produced”.

80. Mr Keogh often operated a grader to create flat surfaces in the mine. However, most of his work was on diggers and dozers.

81. Mr Keogh said that there were two water trucks on the mine site which constantly travelled between the pits. The water trucks were unreliable and often broke down. They were not enough to stop the dust which was produced. This was in contrast to Mr Keogh’s experience in Western Australia where the water trucks were constantly available and were effective in keeping down the dust levels.

82. Mr Keogh said that in many of the machines he operated, the seals of the cabin were damaged, which allowed dust to enter the cabin. Some of the windows could not be closed, which led to dust entering the cabin. Clips which held the windows closed were sometimes broken, so the windows opened and let in dust. Mr Keogh said, “I was often covered in dust at the end of my shift, and it would coat my clothes, hair and exposed areas of skin”. This was in contrast to his work in Western Australia.

83. When Mr Keogh was out of his cabin inspecting the coal seam, there was no protection from the dust generated by nearby machinery. Machine operators were expected to sweep the coal dust out of the cabin at the end of each shift, but this often did not happen, so Mr Keogh was starting work in a cabin which was coated in dust. Mr Keogh did clean out his cabin, but this stirred up dust in the air and inside the cabin which he breathed in.

84. Mr Keogh said, “the dust I was exposed to at the Poitrel Mine was far worse than anything I had encountered in Western Australia”. He said this was because of the poor quality of the seals and windows in the cabins of the machinery, the much larger fleet of machines that worked at Poitrel and the depth of the pit at Poitrel which made it difficult for dust to dissipate. He said that the dust “would build up into a thick fog throughout the shift”. Mr Keogh found that the dust at the coal mine was a lot finer than the dust he had encountered in Western Australia. This meant that it got into the cabins more easily.

85. In par 110 of his first affidavit Mr Keogh said:

“Doing the best I can, I would estimate that my work at Poitrel was at least 10 times dustier than mine sites I had worked at in Western Australia. Although the Yarrie Mine was slightly dustier than the other mine sites in Western Australia, it was still nowhere near as bad as Poitrel in terms of dust.”

86. At Poitrel Mr Keogh was never provided with respiratory protection and was never told to wear respiratory protection. He was never told that exposure to coal dust or dust generally could pose a risk to his health.

87. Mr Keogh said that he had to complete a pre-start form for each machine before he started his shift. He recorded on these forms when seals and windows were broken, but he said, “nothing was done, so I stopped complaining and got on with it”.

88. Mr Keogh said that dust monitoring did take place at Poitrel. In par 117 of his first affidavit he said:

“When dust monitoring was performed in the machine cabins, it was left to the mine supervisors to elect which machines would be tested. To ensure that their testing results were within limits, they would always elect for the testing to be performed in new or recently maintained machines, which were properly sealed. I cannot recall any testing being done when we worked in clouds of dust.”

89. In his second affidavit (PX 1, Tab 2), Mr Keogh said that when he first got to Poitrel he was taken aback. There were so many more machines working together, much more activity and dust and dirt flying around. The pit was a lot deeper than those in Western Australia. The machines were a lot bigger at Poitrel. The excavators which Mr Keogh drove in Western Australia were usually 250-tonne excavators, and the biggest one was 360 tonnes. The excavators at Poitrel were 600-tonne excavators.

90. Mr Keogh said that the four-wheel drive vehicles which were used to take workers from the sign-on area to the machines in the pit were “filthy, both inside and out”. The air-conditioning in these vehicles “just circulated the dust throughout the vehicle”. Mr Keogh saw dust pushed out of the vents and into the breathing space when a driver turned on the air-conditioning in these vehicles.

91. Mr Keogh said that at the end of a shift, he and his co-workers were taken back to the main building in the four-wheel drive vehicles, and everyone was covered in dust and dirt, which the air-conditioning re-circulated inside the vehicle. During a shift Mr Keogh had to pat down his uniform once or twice to try and get some of the dust off it. Mr Keogh travelled home with his dirty work clothes on. He left the dirty uniform on until he went to bed. He used to shower first thing in the morning. The mess hall at the Coppabella camp was full of other workers in their dirty work clothes.

92. Mr Keogh said that one of the reasons he knew that the seals of the cabins in the machines were not working, was that he could often see daylight through the rubbers in the windows. He could also hear the door rattling while the machines were operating. The dozers were particularly bad, with degraded cabin seals and rattling doors. When such machines were operating they vibrated, and the rattling of the cabin caused gaps to emerge between the seals and around the cabin doors.

93. Mr Keogh said that he complained about these problems and sometimes they were fixed after a few days, but sometimes nothing was done. He said, “it was just part and parcel of working on a mine site and the attitude was to ‘harden up’”.

94. Mr Keogh gave further evidence about sweeping up the dust in the cabin. He said that the coal dust was light and powdery, and he could see a dark cloud of it form as he swept the cabin. He tried to sweep this dust out the door, but there was a lip at the bottom of the door so he could not get all of it out. Some of it stayed in the cabin.

95. Mr Keogh estimated that he dug coal for about 30%-40% of the time he worked at Poitrel. The rest of the time he dug overburden, which included a lot of rock.

96. There was no cross-examination by Mr Talintyre of Mr Keogh in relation to Poitrel. At the start of the second day of the hearing Mr Talintyre made a number of admissions of breach of duty on behalf of his clients. There was an admission by CPB of breach of its duty of care as the employer of Mr Keogh for the period at Poitrel (Tcpt 61/38). The evidence of Mr Keogh concerning Poitrel thus stands unchallenged. This includes his evidence about the pre-ordained dust monitoring results.

Evidence of Mr Smith

97. Mr Vivian Smith swore an affidavit dated 18 March 2024 (PX 1, Tab 3). Mr Smith has worked in the coal mining industry since 2002. He is currently a new-to-industry trainer for workers in open cut coal mines. He met Mr Keogh at both Poitrel and Moorvale.

98. Mr Smith worked at Poitrel from September 2010 to August 2011. He was initially a machine operator, operating dozers, trucks and graders. He and Mr Keogh operated machines in the same team. He said that “Poitrel was a very dusty work environment”. Working with coal produced a lot more dust than working with overburden. The amount of dust depended on how dry the weather was and which way the wind was blowing. Some days were worse than others, “but there was always dust”.

99. Mr Smith said that the seals on the windows and doors of the cabins of the machinery at Poitrel were “more often than not in poor repair, cracked and damaged”. He observed dust to enter the cabins during mining operations. Some of the dozers had sliding windows, which did not seal properly, as the plastic clips were often broken or missing. This meant that the windows opened during the shift.

100. Mr Smith said that the air-conditioning in the cabins circulated air, including dust, back into the cabin. The fans sometimes drew air in through the cracks and gaps in the seals, windows and doors, so they effectively sucked dust back into the cabin. They were not pressurized systems, which have a filter and a mechanism to prevent air from outside the cabin being sucked in.

101. Mr Smith used to clean the cabin of his machine at the start of every shift. He found that his skin, hair and clothes had coal and other dust all over them by the end of the shift. When he got home, he had dust in his nose and would spit dust out.

102. Mr Smith confirmed that it was necessary to get out of the machines a number of times during each shift to inspect the coal seam. It was also usual for him to get out of the machine and stretch his legs for a few minutes and have a break. Mr Smith never wore a mask and was never warned about the dangers of inhaling dust.

103. Mr Smith said that the roads and ground at Poitrel were all covered in coal and rock dust. They were unsealed dirt roads. He said that there were never enough water trucks at Poitrel to keep the dust down. It often took a water truck an hour or two to get back to a site which had been sprayed, by which time the previous application of water had dried out and the dust was again thrown up by vehicles travelling along haul roads.

104. After a few months Mr Smith was promoted to be a training co-ordinator. In that role he often went out to the pits with operators to teach them about new equipment or to assess the abilities of qualified operators. He thus continued to observe the state of the cabins and the air and dust inside them.

105. Mr Smith had complained to his supervisor at Poitrel, who was employed by CPB, about the dust getting into the cabins of the machines. He said, “the complaints were often ignored”. Even where a door seal was replaced, that only reduced the amount of dust entering the cabin. Mr Smith was never given any respiratory personal protective equipment or told to wear any equipment while he worked at Poitrel. He never saw anyone wearing a mask.

106. Mr Smith was aware of dust monitoring being conducted at Poitrel. He said these tests were done on new machines when they had just come back from being serviced. The machine chosen was always working on overburden rather than cutting coal. The water truck operated in close proximity to the testing machine for most of the day. He said, “all of this was done to ensure that the dust results were favourable”.

107. Mr Smith was not cross-examined by Mr Talintyre, due to the admission of breach of duty of care. The evidence of Mr Smith about Poitrel thus stood unchallenged. This includes his evidence about the manipulation of the dust monitoring results.

108. Mr Smith was cross-examined by Mr Griscti, but this related to Mr Smith’s time at Moorvale, which is discussed below.

Findings of Fact in Relation to Poitrel Mine

109. In the light of the admissions made by CPB in relation to Poitrel, there is no need to make detailed factual findings, except to record that I accept all evidence given by Mr Keogh and Mr Smith about Poitrel, since it was not only credible, but it was unchallenged.

110. This includes the evidence which both witnesses gave concerning:

1. Regular work on coal and overburden.

1. Constant dust.

2. Inadequate water damping.

3. The poor state of repair of the cabins of machines, which allowed dust to enter the cabin.

4. Dust collecting inside the cabin.

5. Workers being covered in dust at the end of their shift, which coated their clothes, hair and skin.

6. The cynical manipulation of dust monitoring, to ensure nil or low results.

7. Nothing being done when complaints were made about leaky seals and doors on the cabins or machines.

Liability Finding in Relation to Poitrel Mine

111. As admitted by CPB, I find that CPB is liable in negligence to Mr Keogh.

Moorvale Mine

Evidence of Mr Keogh

112. In his first affidavit (PX1, Tab 1) Mr Keogh said that he worked at Moorvale January 2013 to March 2013 and then again from September 2013 to September 2014. He was employed by Campbell, the second defendant, who deployed him to Moorvale. Most of his dealings there were with CPB, who gave him instructions about where he was working and what he was to do. Mr Talintyre conditionally admitted breach of Campbell’s non-delegable duty of care as the employer of Mr Keogh, while he worked at Moorvale, but only if the Tribunal was satisfied that CPB had breached its duty as the operator of Moorvale (Tcpt 61/44). The running of that issue was in the hands of Mr Griscti.

113. Moorvale operated on a 24-hour basis. Mr Keogh worked 12-hour shifts and spent about 10.5 hours of each shift operating machinery. The work was basically the same as the work he had performed at Poitrel.

114. Mr Keogh said that there were one or two water trucks that travelled around the mine attempting to suppress dust, but “these were totally inadequate and I would still see clouds of airborne dust as I operated the machines”. Mr Keogh found that the seals on the cabins of the machinery were damaged, and the windows would not stay closed. Dust seeped into the cabin while he was working. At the end of each shift, he was covered in dust. He inhaled this dust throughout each shift and he could taste it.

115. Operators were expected to clean out their cabin at the end of each shift, but often operators did not do this. Mr Keogh kept up the practice of cleaning the cabins after his own shift. Cleaning caused more dust.

116. Mr Keogh was never provided with, or advised to wear, any respiratory protection. He was never told that exposure to coal dust or dust generally could pose a risk to his health. Problems with the dust sealing on equipment was brought up at toolbox talks but “nothing was done about the poor seals and windows”.

117. Between his two stints at Moorvale, Mr Keogh drove a road truck for about six months. He was not exposed to dust during this period. When he went back to Moorvale he was still working for Campbell as an operator of diggers, graders and dozers. He had the same exposure to dust as he had during his first period.

118. In par 62 of his second affidavit (PX 1, Tab 2) Mr Keogh recalled that during the break between his two stints at Moorvale, he did work at the South Walker Open Cut Coal Mine (South Walker) in Queensland for about six to eight weeks. He was a machine operator and dug overburden only. Mr Keogh said that was not exposed to the level of dust at South Walker as he had been at other Queensland coal mines. It was after working at South Walker that he did some truck driving, until he got a phone call from Campbell asking him to go back to work at Moorvale. That resulted in his second stint of working at Moorvale.

119. In his second affidavit Mr Keogh said that at Moorvale he was driven from the pre-start meeting room to the machines in a four-wheel drive, which was dirty and dusty. Mr Keogh found that his uniform was filthy with dust at the end of a shift. He used to pat the dust out of his uniform several times a day. He travelled back to the camp where he was living at Nebo Junction. He stayed in his uniform until he went to bed, and he did not change it every day.

120. The problems with the cabin seals, doors and windows which Mr Keogh experienced at Poitrel, were also a problem at Moorvale. Coal and rock dust came into the cabins of the machines that he operated. Again, Mr Keogh had to get out of his machine several times a shift, just as he had at Poitrel. There was dust hanging in the air when he got out of the cabin.

121. Mr Keogh estimated that he spent 30%-40% of his time at Moorvale digging coal. The rest of the time he dug overburden, which included rock.

122. In oral evidence-in-chief Mr Keogh was asked to compare the dust in the air outside the cabin and the dust inside the cabin, between his work at Poitrel and his work at Moorvale. He said (Tcpt 31/33),“[i]t’s about basically the same”. Mr Keogh said that there was never a day operating machinery where he did not see dust in the air inside the cabin and on the flat surfaces of the cabin.

123. Mr Keogh was cross-examined by Mr Griscti concerning his time at Moorvale. It was suggested that after machinery came back from maintenance, the seals in the cabin were in good condition. Mr Keogh disagreed saying “they’d still be the same as when they went in there”. He also said that the windows were in the same condition when the machinery came back from maintenance. He said that the maintenance involved working on the motors and the running gear but there was no improvement in relation to windows and doors.

Evidence of Mr Smith

124. In his affidavit (PX 1, Tab 3) Mr Smith also gave evidence about his time at Moorvale. He said, “Moorvale had very similar dust problems to Poitrel”. Mr Smith said that there were never enough water trucks to keep the dust under control. During each shift he saw dust becoming airborne from the vehicles and machines travelling around the mine site. Sometimes there were “clouds of dust”. The level of dust depended on the weather conditions and whether overburden or coal was being moved. In par 43 of his affidavit he said:

“I specifically recall great clouds of dust being blown everywhere then the coal and rock was stockpiled and a big westerly or northerly wind was blowing. The water trucks could not water a whole stockpile and lots of dust was in the air at those times.”

125. Mr Smith confirmed that the seals on the windows and doors of the machines were often cracked and worn out. The dozers were the worst. The cabins of the machines at Moorvale always had a layer of dust everywhere during the shift and at the end of each shift. Mr Smith observed operators to have coal and rock dust all over them at the end of each shift. They did not look completely black like underground coal miners “but they had black and grey dust all over them”.

126. Mr Smith never saw dust monitoring done at Moorvale.

127. Mr Smith was cross-examined by Mr Griscti. He confirmed that he worked as a training co-ordinator at Moorvale for around three months in 2012 or 2013. This was when a company named Peabody was taking over the mine site.

Evidence of Mr Haynes

128. Mr Mark Haynes was the Plant Superintendent at Moorvale from 2012 to 2014. His evidence-in-chief is set out in a two-page written statement (DX 3, Tab 5). As the Plant Superintendent he was responsible for overseeing the maintenance of all machinery at Moorvale. All machinery underwent regular servicing.

129. Mr Haynes attached a document to his statement entitled “Specification and Maintenance Strategy”. Each machine at Moorvale underwent routine maintenance in accordance with the time frame set out in that document. When maintenance was done, this included checking the seals on the cabins and checking the air-conditioning systems.

130. Mr Haynes was cross-examined by Mr Tzouganatos (Tcpt 165/10 -168/35).

131. Mr Haynes said that he did not do work on the machines himself. Mr Haynes agreed that it was possible that, if a coal miner was working at Moorvale operating an excavator, coal and silica dust could get into the cabins. Mr Haynes acknowledged that the Specification and Maintenance Strategy document did not refer to the maintenance of seals. He said that the document “doesn’t have the minor components in there”.

132. Mr Haynes agreed that the mining industry in the Bowen Basin in Queensland is “always booming” and that it was hard to obtain experienced multi-skilled plant operators.

Evidence of Ms Lara

133. Ms Yanel Lara is an occupational hygienist who provided a report dated 19 April 2023 (DX 3, Tab 1). Ms Lara was asked by the solicitors for Moorvale to answer a number of questions.

134. Ms Lara was asked to consider a spreadsheet entitled “Qld DRNM Coal Report – Peabody – Moorvale”. She was asked to state whether the figures in the spreadsheet exceeded the Occupational Exposure Limit (OEL) in place during the relevant time, for either respirable coal dust or respirable quartz.

135. Ms Lara said that during the period when the plaintiff worked at Moorvale, the OEL for coal dust was 3.0mg/m³, as an 8-hour time-weighted average (TWA) and for quartz the OEL was 0.1mg/m³, as an 8-hour TWA.

136. Ms Lara said that an OEL does not identify a dividing line between safe and dangerous levels of substances of healthy or unhealthy working environments. Adverse health effects might be experienced by some workers due to natural biological variation and a range of individual susceptibilities. An OEL establishes a statutory maximum upper limit which should be considered in assessing when appropriate control measures are required. Ms Lara said that good occupational hygiene practice means that preventative intervention should take place when the exposure exceeds one half of the OEL.

137. The spreadsheet which Ms Lara examined contained 96 air samples from Moorvale for the years 2013 and 2014. Out of those 96, a total of 53 records were said to be conducted by sampling workers operating dozers or graders, performing pre-strip or overburden removal, or coal removal. Of the 96 records, none were above the OEL for coal or quartz.

138. Ms Lara said that there are a number of control measures used in mining to minimise exposure to dust in open cut mines. These include:

1. Keeping coal dust damp to minimise dust generation.

2. Minimising the drop distances of material when loading trucks or stockpiles.

3. Avoiding overloading trucks to reduce coal spillage and the resultant generation of traffic dust.

4. Enclosing cabins with filtered air-conditioning systems with regular filter replacement.

5. Effective door and window seals in enclosed cabins.

6. Maintaining housekeeping inside cabins, amenities, offices and workshops.

7. Administrative controls, such as limiting overtime, or changing work tasks.

139. Ms Lara set out a number of assumptions she was asked to make to answer some of the questions. She was asked to express a view as to whether Mr Keogh would have been exposed to levels of coal or quartz dust exceeding the OELs if he worked in air-conditioned cabins or excavators. She was asked to assume that he worked in diggers, dozers and graders in air-conditioned cabins that were airtight with seals that did not leak. Her opinions on these matters were of no utility to the court, as these assumptions were simply not made out on the evidence.

140. Ms Lara was cross-examined by Mr Tzouganatos (Tcpt 224/36 – 232/50). Ms Lara said that while she was provided with the spreadsheet containing the figures, she was not provided with any reports from which those spreadsheet entries were derived. She acknowledged that an air sampling report would be prepared by a scientist who conducted and reported each study, and the report would include comments about what was happening at the time when the study was conducted. Such reports would also record the weather conditions at the time the test was conducted and whether the machine was offline for a period of time during the sampling period. The report would have recorded whether the sample was conducted in or outside the pit.

141. Ms Lara agreed that it is difficult to extrapolate from one test result conducted on one day on one worker to another worker working on another day.

142. Ms Lara was asked whether the 53 samples in the period from 2013 to 2014 would permit her to reliably report anything in relation to Mr Keogh’s potential exposure while working in different machines. Ms Lara acknowledged that it would have been helpful to have more information about Mr Keogh in order to express an opinion. Ms Lara agreed that the workplace environment and day-to-day tasks can vary significantly, which can lead to variations in personal exposure levels. Ms Lara also agreed that individual results may not be representative of the average or mean exposure for a similar exposure group.

143. Ms Lara agreed that it has been known for over a century that coal miners are at real risk of contracting lung diseases if means are not taken to protect them from inhaling coal and silica dust.

144. Ms Lara agreed that if she had observed machine operators coming out of their machine covered in dust, that would have been a major occupational hygiene concern.

Evidence of Ms Topping

145. Ms Carolyn Topping is an occupational hygienist who provided a report to the plaintiff’s solicitors (PX 1, Tab 25). In relation to the work done by Mr Keogh at Moorvale, Ms Topping said the following:

1. Based on the conditions described by Mr Keogh, there was a foreseeable and real risk of contracting a lung disease as a result of exposure to coal dust and crystalline silica.

2. There were reasonably practicable measures available to an employer and a mine operator to prevent or minimise the risk of contracting lung disease well before 2013.

3. The working conditions described by Mr Keogh showed that the protective measures implemented were not effective. In particular:

1. the seals on the cabins of the machinery were damaged and the windows would not stay closed;

2. dust would seep into the cabin during the work shift;

3. at the end of the shift Mr Keogh was covered in dust, he inhaled dust during his shift and he tasted dust;

4. the water trucks were totally inadequate;

5. operators were expected to clean out their cabin at the end of each shift, but some colleagues did not comply;

6. cabins were constantly filthy even when Mr Keogh started his shift;

7. cleaning the cabin disturbed the dust, causing more dust;

8. Mr Keogh was not provided with or advised to wear respiratory protection.

146. It is noted that Ms Topping expressed similar views concerning Poitrel, Boggabri and Blackwater.

147. In cross-examination by Mr Griscti, it was suggested that the 53 sampling records dealt with in the report of Ms Lara constituted sufficient information for a reliable and quantitative assessment of dust exposure at Moorvale. Ms Topping said (Tcpt 133/40) that you need to know the number of people in the crews and how many people are in the exposure group. The bigger the crew, the more samples you have to take.

148. Ms Topping acknowledged that in providing her opinion, she was reliant upon the accuracy of the statements of Mr Keogh and Mr Smith concerning dust exposure (Tcpt 135/45).

149. Ms Topping acknowledged that exposure monitoring or taking air samples is part of a risk management process (Tcpt 136/8). Ms Topping said that it is an important tool, but to be able to rely on the information, tests need to be conducted in a way that you can rely on the results. You need to get enough samples. You need to be able to see if you can infer something from those samples to a broader group. You need to rely on the process of how the sample was collected.

Findings of Fact in Relation to Moorvale Mine

150. I make the following findings of fact in relation to Moorvale:

1. Mr Keogh worked for 10.5 hours each 12-hour shift operating machinery. His work was basically the same as he had done at Poitrel. He was either digging out coal or digging overburden.

2. The water trucks which drove all around the site were inadequate to suppress the clouds of airborne dust which arose from operating the machines.

3. The seals in the cabins of the machines were damaged and the windows would not stay closed. Dust seeped into the cabin while Mr Keogh was working.

4. At the end of each shift Mr Keogh was covered in dust. He inhaled this dust throughout each shift and he could taste it.

5. Operators did not clean out their cabin and this meant that the cabins contained dust when Mr Keogh started his shift.

6. Mr Keogh was never provided with any respiratory protection and was never told that exposure to coal dust or dust generally could pose a risk to his health.

7. Problems with the dust sealing on equipment were brought up in toolbox talks but nothing was ever done about the poor seals and windows.

8. When Mr Keogh was transported to and from the pit in a four-wheel drive, that vehicle was dirty and dusty.

9. Mr Keogh’s uniform was filthy with dust at the end of each shift.

10. Mr Keogh spent 30%-40% of his time at Moorvale digging coal. The rest of the time he dug overburden, which included rock.

11. The dust in the air both inside and outside the cabin was the same at Moorvale as it was at Poitrel.

12. There was never a day where there was no dust in the air inside the cabin and outside the cabin.

13. When machinery came back from maintenance, the seals were still in the same poor condition as when the machines went in for maintenance.

14. Mr Haynes did not do work on the machines himself and he acknowledged that the Specification and Maintenance Strategy document did not refer to the maintenance of seals. That document did not relate to what he described as “minor components”.

15. The mining industry in the Bowen Basin in Queensland is always booming and it is still hard to obtain experienced multi-skilled plant operators.

16. While the 53 records examined by Ms Lara, occupational hygienist, disclosed no readings above the OEL, Ms Lara did not have access to data showing where such readings were taken and the circumstances, including weather conditions, on the days the readings were taken.

17. It has been known for over a century that coal miners are at real risk of contracting lung diseases if means are not taken to protect them from inhaling coal and silica dust.

18. If an occupational hygienist observed machine operators coming out of their machine covered in dust, that would have been a major occupational hygiene concern.

19. There are a number of control measures available to be used in open cut coal mines, including:

1. Keeping coal dust damp to minimise dust generation;

2. Minimising the drop distances of material when loading trucks or stockpiles;

3. Avoiding overloading trucks to reduce coal spillage and the resultant generation of traffic dust;

4. Enclosing cabins with filtered air-conditioning systems with regular filter replacement;

5. Effective door and window seals in enclosed cabins;

6. Maintaining housekeeping inside cabins, amenities, offices and workshops;

7. Administrative controls, such as limiting overtime, or changing work tasks.

20. Based on the conditions described by Mr Keogh, there was a foreseeable and real risk of contracting a lung disease as a result of exposure to coal dust and RCS.

21. The working conditions described by Mr Keogh showed that the protective measures implemented were not effective.

151. There was no evidence called by CPB in relation to Moorvale to contradict the evidence given by Mr Keogh and Mr Smith concerning the constantly dusty conditions in which machine operators worked. In those circumstances, I unreservedly accept the evidence of Mr Keogh and Mr Smith in relation to working conditions at Moorvale.

Liability Findings in Relation to Moorvale Mine

152. I make the following liability findings in relation to Moorvale:

1. CPB provided services at Moorvale to the mine operator, and owed a duty of care to Mr Keogh.

2. Mr Keogh was employed by Campbell at Moorvale as a machine operator.

3. Mr Keogh did inhale dust, including coal dust, in the course of his employment.

4. Coal and other dust penetrated the cabins of the machinery operated by Mr Keogh on a regular basis because there were defective window seals, door seals and windows in that machinery.

5. It was foreseeable that Mr Keogh would inhale coal dust in the course of his employment at Moorvale.

586. In relation to managing smoking, Mr Keogh and the doctors acknowledged that he smokes far too much. His smoking has made a contribution towards his COPD and his emphysema. I have taken into account in assessing damages, that not all of these two conditions relate to dust exposure. Damages have therefore been moderated in the sense that they had been assessed only to compensate Mr Keogh for the conditions caused by mine dust exposure. Had Mr Keogh not been a smoker, his damages would have been higher, because smoking has made a contribution towards emphysema and COPD. I reject the submission that Mr Keogh has failed to mitigate his damages by managing his smoking.

587. These findings also answer the submissions of Mr Talintyre that Mr Keogh has failed to mitigate his damages.

Interest

591. Section 151M of the WCA provides as follows:

“151M Payment of interest

(1) Limited statutory entitlement A plaintiff has only such right to interest on damages as is conferred by this section.

(2) Domestic services, nursing and attendance No interest is payable on damages comprising compensation under section 151K. A court cannot order the payment of interest on such damages.

(3) Non-economic loss No interest is payable on damages awarded under section 151G. A court cannot order the payment of interest on such damages.

(4) Other heads of damages The following provisions apply to damages, other than damages to which subsection (2) or (3) applies:

(a) Interest is not payable (and a court cannot order the payment of interest) on such damages unless:

(i) information that would enable a proper assessment of the plaintiff’s claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff’s full entitlement to all damages of any kind but has not made such an offer, or

(ii) the defendant has had a reasonable opportunity to make a revised offer of settlement (where it would be appropriate to do so) in the light of further information given by the plaintiff that would enable a proper assessment of the plaintiff’s full entitlement to all damages of any kind but has not made such an offer, or

(iii) the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the court (without the addition of any interest) is more than 20% higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made.

(b) The highest amount offered by the defendant is not unreasonable if, when the offer was made, the defendant was not able to make a reasonable assessment of the plaintiff’s full entitlement to all damages of any kind.

(c) For the purposes of this subsection, an offer of settlement must be in writing.

(5) Calculation of interest If a court is satisfied that interest is payable under subsection (4) on damages:

(a) the amount of interest is to be calculated for the period from the date of the death of or injury to the worker until the date on which the court determines the damages, and

(b) the amount of interest is to be calculated in accordance with the principles ordinarily applied by the court for that purpose, subject to this section.

(6) Rate of interest The rate of interest to be used in any such calculation is three-quarters of the rate prescribed for the purposes of section 95 of the Supreme Court Act 1970 for the period concerned.

(7) Judgment debts Nothing in this section affects the payment of interest on a debt under a judgment or order of a court.”

592. Counsel were agreed that there could be no interest on non-economic loss because of s 151M(3) and that the appropriate rate of interest, if any, was 75% of the court rate of interest, because of s 151M(6).

593. Mr Rowles opposed any award of interest because the plaintiff did not provide information to enable Downer Regional to make a proper assessment of the plaintiff’s claim and also because Downer Regional had not had a reasonable opportunity to make an offer of settlement in respect of the plaintiff’s full entitlement to damages of any kind. Thus Downer Regional relied upon s 151M(4)(a)(i). In written submissions (MFI 29, pars 5.2-5.4) Mr Rowles pointed out that the plaintiff filed an Amended Statement of Claim and an Amended Statement of Particulars on 27 March 2024 but was not granted leave to proceed upon the Amended Statement of Particulars until 5 April 2024. The trial commenced on 8 April 2024. There is much force in this submission.

594. In the Amended Statement of Claim the most important amendments were to add a claim for damages for silicosis and emphysema. These had not been pleaded until the Amended Statement of Claim was filed on 27 March 2024. Indeed, prior to that amendment, silicosis was listed as a disease for which further damages might be claimed under s 11A of the DDT Act.

595. The Amended Statement of Particulars provided much detail that was not in the earlier version of that document. The Amended Statement of Particulars dramatically increased the following claims:

1. The claim for past economic loss was originally particularised in a total amount of $230,103.19. The increased amount particularised for the first time just before the trial was for an amount of $452,021.45.

2. The originally particularised claim for future economic loss totalled $518,255.65. The new claim for future economic loss was for $969,333.03 (to age 67 years) or $1,091,591.25 (to age 70).

596. The late addition of two diseases to the Amended Statement of Claim and the late supply of particulars which greatly increased the claim for past economic loss and future loss of earning capacity, leads me to conclude that the plaintiff did not provide information that would enable a proper assessment of his claim and further that Downer Regional did not have a reasonable opportunity to make an offer of settlement after receiving the Amended Statement of Claim and the Amended Statement of Particulars.

597. I am therefore of the view that interest is not payable on any of the heads of damage which I will award to Mr Keogh against Downer Regional. The test in s 151M(4) has not been satisfied.

Apportionment of Damages and Costs

598. Section 151S of the WCA provides as follows:

“151S Court to apportion damages etc

(1) If a judgment is obtained for payment of damages to which this Division applies as well as for other damages, the court is required, as part of the judgment, to declare what portion of the sum awarded by the judgment is damages to which this Division applies.

(2) In any such case the court is required to apportion any costs awarded.”

599. Mr Rowles submitted (MFI 24, par 4.4) that “time on risk is the only way to determine each defendant’s responsibility” and that this “must be done to undertake the assessment of damages to be awarded under Div 3 Pt 5 of the WCA (as against the fifth defendant)”.

600. Mr Tzouganatos submitted (MFI 8, par 243) that there is nothing in s 151S that prevents the Tribunal from entering judgment for the full amount of damages against each defendant, including the fifth defendant. All that is required is that the Tribunal declare what portion of the sum awarded was damages as against the fifth defendant.

601. I accept the submission of Mr Tzouganatos. It is supported by the decisions of the Court of Appeal in Oxley County Council v McDonald [1999] NSWCA 126 at [51] and Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at [55]-[57]. In accordance with those decisions, I will find a judgment against Downer Regional for the full amount of damages as calculated below. Those decisions suggest that s 151S is relevant where there are two joint tortfeasors, one of which is an employer, and s 151Z of the WCA comes into play. Section 151S really has no work to do where (as here) there are separate assessments against successive tortfeasors.

602. For more abundant caution, I will declare that the full amount of the judgment against Downer Regional is for damages to which the modified common law damages provisions of the WCA apply.

Summary of Modified Common Law Assessment of Damages for the Fifth Defendant

603. The figure for non-economic loss is set out above. The damages for past out-of-pocket expenses, past economic loss, past superannuation loss and Fox v Wood are the same as those calculated above against all other defendants. The damages for future loss of earning capacity, future loss of superannuation, future out-of-pocket expenses and future care and assistance are the same as those calculated above against the Queensland defendants, to which a 5% discount rate for the future applies.

604. Applying the modified common law damages provisions of the WCA, the “full value” assessment of provisional damages is set out in the following table:

Head of Damage	Amount
Non-economic loss	$328,225.75
Interest on Non-economic Loss	nil
Loss of Expectation of Life	nil
Past Out-of-Pocket Expenses	$26,951.70
Future Out-of-Pocket Expenses	$143,071.23
Future Care and Assistance	$137,958.49
Past Economic Loss	$433,945.68
Past Superannuation Loss	$47,734.02
Interest on Past Economic and Superannuation Losses	nil
Fox v Wood	$55,726.22
Future Loss of Earning Capacity	$1,094,202.50
Future Superannuation Loss	$159,315.88
TOTAL	$2,427,131.47

605. Applying the percentage applicable to Downer Regional (as set out in par 260 above), there will be judgment against Downer Regional for provisional damages of: $2,427,131.47 x 32.3% = $783,963.46. Obviously this figure overlaps with the provisional damages against Downer EDI arising from its operation of Boggabri, and Mr Keogh cannot have double recovery for the period of his employment by Downer Regional at Boggabri.

Cross Claim by Downer Regional against Downer EDI

606. Downer Regional and Downer EDI are tortfeasors who are below found liable by judgment to Mr Keogh. The issue for determination on the A5CC is the apportionment of liability between those parties, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

Defence to Amended Statement of Fifth Cross Claim

607. In its Defence to the A5CC Downer EDI denied that it owned Boggabri as alleged in par 7 of the A5CC. Downer EDI said that it held a Mine Services Contract for Boggabri which included the period from 15 September 2014 to 15 June 2016.

608. Downer EDI admitted that it was the operator, as defined in the Coal Mine Health and Safety Act 2002 (NSW) and the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), of Boggabri during that period.

609. The definition of an “operator” in the Coal Mine Health and Safety Act 2002 (NSW) was:

“(a) in relation to a coal operation that is a place within a colliery holding, means:

(i) the colliery holder, if the colliery holder nominated himself, herself or itself as the operator of the coal operation under section 17 and that nomination was not rejected, or

(ii) the person nominated by the colliery holder as the operator of the coal operation, and not rejected by the Chief Inspector, under section 17, or

(iii) (Repealed)

(b) in relation to any other coal operation, means the person with the day to day management of the coal operation.”

610. The Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) replaced the Coal Mine Health and Safety Act 2002 (NSW). Section 7A of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) provides the definition of a “mine operator”:

“7A   Meaning of ‘mine operator’

(1)  In this Act—

mine operator of a mine means—

(a)  the mine holder, or

(b)  if the mine holder has appointed, in accordance with the regulations, another person to be the mine operator, that other person.

(2)  The regulations may provide for the appointment of more than one mine operator for a mine (so that there are different mine operators for different parts of a mine) and for that purpose—

(a)  a reference in this Act or the regulations to the mine operator of a mine includes a reference to the mine operator of part of a mine, and

(b)  the functions of a mine operator of a mine are, in the case of a mine operator of part of a mine, functions in respect of that part of the mine.

(3)  The regulations may provide for the appointment of one person as the mine operator for more than one mine. In such a case all of the relevant mines are, for the purposes of this Act, to be treated as one mine.”

The Contribution Legislation

611. Section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) relevantly provides that:

“(1) Where damage is suffered by any person as a result of a tort (whether a crime or not):

…

(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.

(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.”

612. An application for contribution under s 5(1)(c) requires the court to compare the relative culpability of the parties causing the damage. The classic statement of the task is contained in the judgment of Clarke JA in Macquarie Pathology Service Pty Ltd v Sullivan [1995] NSWCA 540 where his Honour said:

“The making of an apportionment involves the comparison of culpability and of the acts of the parties causing damage. To put it another way, the court is concerned with considering the relative blameworthiness and the relative causal potency of the negligence of each party.”

Evidence on the A5CC

613. Mr Rowles tendered a folder (DX 11) which contained a large bundle of the Downer EDI training records for Mr Keogh, when he worked at Boggabri. The documents have been completed and signed, verifying that Mr Keogh was trained and assessed by Downer EDI on the systems and machinery relevant to his work at Boggabri.

614. Mr Rowles also tendered the affidavit of Mr David Unwin (DX 7, Tab 14) which states that Downer Regional is a subsidiary of Downer EDI, and that Downer EDI provided mining services at Boggabri.

615. Downer Regional relied upon this evidence to show that Downer EDI supervised and controlled the plaintiff’s work during the relevant period.

616. Downer EDI did not adduce any evidence in relation to the A5CC.

Written Submissions

617. The Written Submissions of Mr Rowles (MFI 24) addressed apportionment between the parties in pars 1.1 – 1.11. He referred to Mt Owen Pty Ltd v Parkes [2023] NSWCA 77 (Parkes) (MFI 24 par 1.5) to support his submission that the liability of Downer Regional should be found to be between 0% and 20%. Mr Rowles said at par 1.6:

“In Parkes, the employer was initially found 20% liable but on appeal was found 0% liable because where the arrangements between the actual employer and the host are such that there is a transfer of control from the employer to the host, this can lead to an outcome where the host will be vicariously responsible for the negligence of the hired worker.”

618. Counsel submitted that Downer EDI was in full control of Boggabri and the work undertaken by Mr Keogh (MFI 24, par 1.7), so as to effect a transfer of control from the employer to the host.

619. Mr Rowles submitted that the training records from Downer EDI (DX 11, Tab 2) proved that Downer EDI, as the host employer, was “in full control of the manner in which the work [was] undertaken” because they show that while Mr Keogh was employed by Downer Regional, he was trained by Downer EDI at Boggabri (MFI 24, par 1.8).

620. Mr Rowles submitted that there is “unchallenged evidence that Downer EDI controlled the Plaintiff’s employment whilst he was at the Boggabri mine site including during the period that he was employed by the Fifth Defendant” (MFI 24, par 1.10). Consequently, he submitted that Downer Regional’s liability should be apportioned between 0% to 20% (MFI 24, par 1.11).

Downer Regional Oral Submissions

621. In closing submissions Mr Rowles submitted that the question is, “how much responsibility and how much control did Downer Regional really have?” Mr Rowles submitted:

“[T]he plaintiff was employed by the labour hire company, sent to the mine, but then the moment that he went to the mine, effectively the training and control and the operation of the mine was all controlled by the third defendant” (Tcpt 382/43-47).

622. Mr Rowles suggested that the reason Mr Keogh, in cross-examination, mistakenly considered himself to be working for Downer EDI was because Downer EDI “had absolute control of the work that he did on a day-to-day basis throughout the whole of the period that he was employed in that mine”. Consequently, Mr Rowles said that it “is a situation of a host employer who has absolute control of the work conditions [and] the machinery that the worker uses over that period of time” (Tcpt 383/28-29).

623. Mr Rowles again referred to the decision of Parkes, submitting that by analogy, the control that Downer EDI had over Mr Keogh was such as to make the operator of the mine 100% responsible for the injury that occurred (Tcpt 383/33-38).

Downer EDI Oral Submissions

624. Mr Rundle made a brief submission on apportioning liability between the parties. He submitted the appropriate contribution to be paid by Downer EDI was between 50% to 80% (Tcpt 389/4).

The Judgment in Parkes

625. In Parkes, Mr Mitchell Kemp and Mr Glen Parkes were employed by the labour hire company Titan Technicians Enterprise Pty Ltd (Titan). Titan sent Mr Kemp and Mr Parkes to work at the Glendell Coal Mine which was owned and operated by Mt Owen Pty Ltd (Mt Owen).

626. Mr Kemp and Mr Parkes were undertaking maintenance on a bulldozer at Mt Owen’s site when Mr Kemp dropped the blade of the bulldozer, causing injuries to Mr Parkes.

627. Mr Parkes claimed damages against Mt Owen and Titan, alleging that Mt Owen (and not Titan) was vicariously responsible for Mr Kemp’s negligence and that Mt Owen breached its duty of care owed to Mr Parkes.

628. Mt Owen asserted that Titan, as Mr Kemp’s legal employer, was vicariously liable for Mr Kemp’s negligent act and that Titan breached its duty of care owed to Mr Parkes and was therefore at least partly responsible for damages payable to him.

629. The primary judge found that Mr Kemp was the employee of Mt Owen for the purposes of the incident, and it was therefore vicariously liable for Mr Kemp’s negligence. The primary judge also found that both Mt Owen and Titan breached their duties of care owed to Mr Parkes. Consequently, the primary judge apportioned liability at 60% for Mr Kemp’s negligence, for which Mt Owen was vicariously liable, and the balance of 40% was shared between Mt Owen and Titan. Of the 40% liability shared between Mt Owen and Titan, the primary judge apportioned 80% to Mt Owen and 20% to Titan.

630. On appeal the primary issues were whether Mt Owen was vicariously liable for the negligence of Mr Kemp (vicarious liability appeal) and whether Titan, as Mr Parkes’ legal employer, breached its duty of care to him (cross appeal). Only the cross appeal issue in Parkes is relevant to the issues in dispute on the A5CC.

Cross Appeal Between Titan and Mt Owen

631. In the cross appeal by Titan, the Court found in favour of Titan by a 2:1 majority (Brereton and Kirk JJA, Basten AJA dissenting).

632. In the primary judgment, liability was apportioned to Titan based on Mt Owen’s failure to stipulate in the Job Safety Analysis (JSA) the requirement that no implement movement should occur while tradesmen were within the footprint of the bulldozer. The JSA contained detailed directions and control measures for the steps to be undertaken while carrying out maintenance on the bulldozer. However, the JSA did not specifically restate a requirement in another procedure applicable to the bulldozer maintenance task, that there be no equipment movement while personnel were within the bulldozer’s footprint.

631. In finding that Titan was negligent, the primary judge said at [77]:

“As an employer of, inter alia, diesel mechanics within the mining industry, Titan would be aware of the matters relevant to my decision about foreseeability, significance of risk and available precautions that I have set out above dealing with the liability of Mt Owen. On the same basis I am of the view that Titan is negligent.”

634. However, the majority in the Court of Appeal found that “no more was required” to instruct the workers about what had to be done, given the “clear requirement stipulated in the JSA, which no-one suggested they did not understand” (at [16]).

635. Brereton JA explained at [19] that the crew members had been taken through the JSA before work commenced and that they “must all be taken to have been aware of its requirements”. Brereton JA said that even if a further specification was included, it is not apparent that it would have made any difference, with Mt Owen submitting that, “the practical reality is that Kemp just did as he pleased in the execution of that work at the time, without reference to the requirements of either Mt Owen or Titan” (at [20]).

636. Brereton JA stated that the apportionment between Mt Owen and Titan “miscarried, by failure to have regard to the circumstances that the JSA was Mt Owen’s document, prepared for a procedure required to be performed by Mt Owen on Mt Owen’s site and equipment under Mt Owen’s ultimate direction and control” (at [23]). Further, the majority found that Mr Parkes’ employment had “been transferred to Mt Owen” which led to Titan’s apportionment being assessed as nil (at [23]).

637. In the dissenting judgment, Basten AJA accepted the primary judge’s conclusion that the JSA did not make the control measures imposed on the movement of equipment sufficiently clear as “none of the three men working on the machine took the view that they had to stand clear of its footprint whilst the implements were manoeuvred” (at [83]).

638. Basten AJA stated that owing to “the special duty that it owes to its employees, Titan was obliged to ensure that reasonable care be taken for the safety of Mr Parkes”, and while the JSA was not Titan’s document, that did not absolve it from responsibility (at [82]).

639. In dismissing the cross appeal, Basten JA explained at [84]-[85]:

“84 Titan had accepted its responsibility to take steps to ensure a safe working environment for its employees and, as has been noted, formulated extensive safety protocols which were to apply unless those of the host employer were of an equal or more demanding standard. In order to ensure that that standard was fulfilled, Titan should have been alert to imprecision, ambiguity or uncertainty in the JSA. Accordingly, there was no error on the part of the trial judge in finding Titan liable.

85 Since both Titan and Mt Owen had the relevant legal authority to impose constraints on the activities of Titan’s workers, in circumstances where Titan was able to take appropriate steps to carry out that function, there was no error in attributing equal responsibility to the host employer (Mt Owen) and the legal employer (Titan) for the injury to the plaintiff.”

640. Basten AJA set out the legal principles of employers’ liability. Importantly, the host employer and the legal employer both owe a non-delegable duty of care to workers. Citing TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 (Christie), Basten AJA said that “it was significant that the degree of control exercised by the host employer in Christie did not derogate from the general duty of care imposed on the legal employer” (at [75]).

641. The content of an employer’s non-delegable duty is variable and may depend on the circumstances (at [78]). After discussing the authorities, Basten AJA said that “in each case the assessment of the content of the duty of care turned on the level of control which it was reasonably practicable for the employer to exercise” (at [81]).

Consideration

642. In Parkes, Titan successfully appealed and had its liability apportioned to 0% because the majority held that the JSA of Mt Owen sufficiently stipulated the procedures and risk controls for the bulldozer maintenance work.

643. The evidence in relation to the A5CC is distinguishable from the evidence in Parkes. In this case there was no evidence tendered to show what, if any, steps Downer Regional took to discharge its non-delegable duty owed to Mr Keogh. In Parkes, there was evidence that Titan had safety procedures which employees had to follow. Such a direction was included in the service agreements between Titan and Mt Owen. No evidence was adduced about terms of any agreement between the present parties for the provision of labour hire, nor was there any evidence of Mr Keogh’s employment contract with Downer Regional.

644. An employer does not discharge its non-delegable duty or cease to have the duty simply by sending its employee to a host employer. For Downer Regional to have discharged its non-delegable duty, it must show that it took reasonable steps for the health and safety of Mr Keogh.

645. In Parkes, the evidence established that Titan regularly visited the Mt Owen site to perform safety checks and speak to employees. Titan also had its own work health and safety procedures and policies in place that its employees had to follow. These measures were relevant to whether or not Titan discharged its non-delegable duty owed to its employees. In contrast, there was no evidence that Downer Regional provided any health and safety procedures or information to its employees, provided any training to Mr Keogh, visited Boggabri, or provided any information, instruction, or training to its employees about the risks involved with working at Boggabri.

646. Mr Rowles’ submission that this case is analogous to Parkes and that Downer Regional’s liability should be apportioned as 0% is rejected. Titan’s liability was only apportioned to 0% because the evidence showed that it had stringent safety procedures and that it regularly monitored Mt Owen’s site to ensure the safety of its employees.

647. While the limited evidence shows that Downer EDI as a host employer provided Mr Keogh with all his training, that does not establish that Downer EDI had absolute control of the work conditions, nor does it absolve Downer Regional from performance of its non-delegable duty.

648. An employer’s duty of care is not modified just because its employees are sent to work for a client. In such circumstances the employer may be required to adopt additional measures by way of warning or training in order to discharge its continuing duty of care to its employees: Christie at [67].

649. Downer Regional was required to take reasonable steps to protect the health and safety of Mr Keogh while working at Boggabri. Whether an employer’s non-delegable duty is discharged when an employee is working at a third party’s premises depends on such matters as “the employer’s opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from danger and various other factors”: Bourke v Victorian WorkCover Authority [1998] VSCA 24; [1999] 1 VR 189, cited in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99.

650. To discharge its non-delegable duty, Downer Regional could have provided information and instruction to its employees about adequate personal protective equipment including respiratory protection, and required its workers to abide by those standards, unless Downer EDI had the same or better standards in place, as was the situation in Parkes.

651. Downer Regional could have ensured its employee’s health and safety by requiring Downer EDI to improve its conditions or systems, and by not providing workers until Downer EDI made such improvements. Downer Regional had the power to prescribe, warn, command and enforce obedience.

652. As an employer of workers in the mining industry, Downer Regional should have been aware of the risks of coal dust, the foreseeability of the risk, the significance of the risk and the available precautions. To discharge its non-delegable duty, Downer Regional should have visited Boggabri to apprise itself of the conditions and risks to its employees placed at the mine. There was no evidence that it did so. The appalling conditions at the mine were plain for all to see.

Conclusion

653. The causal potency of the negligence of Downer EDI and Downer Regional is equal – both exposed Mr Keogh to the same level of harmful dust at Boggabri, during the period when Mr Keogh was employed at Boggabri by Downer Regional.

654. The relative blameworthiness is not equal. Downer EDI operated the mine, generating enormous clouds of harmful dust, but Downer Regional did not. Downer EDI had control over the training of Mr Keogh. Downer Regional could and should have taken basic steps to discharge its non-delegable duty of care as the employer of Mr Keogh. There is absolutely no evidence of Downer Regional taking any steps to discharge this duty of care, unlike the direct employer in Parkes. It cannot escape liability.

655. On the A5CC regarding Mr Keogh’s exposure at Boggabri, I apportion liability 30% to Downer Regional and 70% to Downer EDI. The calculation for the contribution to be ordered against Downer EDI is: $783,963.46 x 70% = $548,774.42.

Other Potential Cross Claims

656. In oral submissions (Tcpt 371/14-29) Mr Talintyre said that the defendants would like to have time, after judgment is delivered, to consider whether to bring contribution cross claims, as Downer Regional has done against Downer EDI. Such claims may not be necessary, as I have found that the damage is divisible and not indivisible. As asked, I will make an order granting leave to all defendants to file any further cross claims within 28 days of delivery of this judgment.

Orders

657. The orders of the Tribunal are:

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:

1. Rheumatoid arthritis.

2. Scleroderma.

3. Progressive massive fibrosis.

4. 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:

1. Rheumatoid arthritis.

2. Scleroderma.

3. Progressive massive fibrosis.

4. 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.

*****

Decision last updated: 25 July 2024