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Kerr v Whitehaven Coal Mining Ltd

Kerr v Whitehaven Coal Mining Ltd

Case [2020] NSWSC 1096 19 August 2020

Negligence

Causation

Compensatory Damages

Assessment of Damages

Pre-existing Conditions

Tort Law

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Supreme Court

New South Wales

Medium Neutral Citation: Kerr v Whitehaven Coal Mining Ltd [2020] NSWSC 1096
Hearing dates: 10, 11, 12, 13 and 14 August 2020
Decision date: 19 August 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Judgment for the defendant.
(2) Subject to an application for a different costs order being made in writing to my Associate within 7 days, order the plaintiff to pay the defendant’s costs of the proceedings.

Catchwords:
NEGLIGENCE — Where plaintiff claimed she was injured while working for defendant at coal mine — Injury allegedly sustained as a result of plaintiff’s dump truck jolting upon hitting a ‘soft spot’ in road — Plaintiff claimed defendant’s failure to detect and repair ‘soft spot’ negligent
EVIDENCE — Credibility of witnesses — importance of contemporaneous accounts — effect of litigation, motive and hindsight on recollection and reliability of evidence
TORTS — Damages — Assessment of damages — Effect of pre-existing conditions — effect of Workers Compensation Act 1987 (NSW) for worker employed at coal mine

Legislation Cited:
Civil Liability Act 2002 (NSW), s 3B
Coal Mine Health and Safety Regulation 2006 (NSW), cl 15
Evidence Act 1995 (NSW), s 79
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Workers Compensation Act 1987 (NSW), ss 151G, 151H, Sch 6

Cases Cited:
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Blatch v Archer (1774) 1 Cowp 63
Browne v Dunn (1893) 6 R 67
Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Fokas v Staff Australia Pty Ltd [2013] VSCA 230
Hoad v Swan (1920) 28 CLR 258; [1920] HCA 50
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Onassis v Vergottis [1968] 2 Lloyd's Rep 403
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 884
Payne v Parker [1976] 1 NSWLR 191
R v Birks (1990) 19 NSWLR 677
Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65
Ronchi v Portland Smelter Services Pty Ltd [2005] VSCA 83
Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111; [1956] HCA 73
Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Category: Principal judgment
Parties: Kathleen Anne Kerr (Plaintiff)
Whitehaven Coal Mining Ltd (Defendant)
Representation:
Counsel:
N Polin SC / M Best (Plaintiff)
L King SC / T Rowles (Defendant)
Solicitors:
Morgan + English Commercial Lawyers (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s): 2016/309235

Judgment

Introduction

By statement of claim filed on 17 October 2016 Kathleen Kerr, the plaintiff, alleged that, on 19 October 2013, she had suffered injury as a result of the negligence of her then employer, Whitehaven Coal Mining Limited, the defendant, and claimed…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Kerr v Whitehaven Coal Mining Ltd

Details

AGLC: Kerr v Whitehaven Coal Mining Ltd [2020] NSWSC 1096
Case: [2020] NSWSC 1096
Decision Date: 19 August 2020

CaseChat Overview and Summary

Kerr brought an action against Whitehaven Coal Mining Ltd, alleging that she was injured while operating a dump truck at a coal mine. The plaintiff claimed that her injury occurred when her truck jolted upon hitting a 'soft spot' in the road, which she asserted the defendant had failed to detect and repair. The dispute came before the court to determine whether the defendant's negligence in maintaining the road caused the plaintiff's injury and, if so, the appropriate quantum of damages.

The court was required to consider the credibility of the witnesses and the contemporaneous accounts of the incident. It had to weigh the effect of the litigation, the potential motives of the parties, and the influence of hindsight on the reliability of the evidence provided. Additionally, the court had to assess the damages claimed by the plaintiff, taking into account the impact of any pre-existing conditions on her injuries and the provisions of the Workers Compensation Act 1987 (NSW), which applied to workers employed at a coal mine.

The court concluded that the plaintiff had not provided sufficient evidence to prove that the defendant's negligence caused her injuries. The court found that the contemporaneous accounts were inconsistent and that the plaintiff's evidence was affected by hindsight and the potential for bias. The court also determined that the plaintiff's pre-existing conditions significantly contributed to her injuries and that the appropriate damages were those available under the Workers Compensation Act. As a result, the court dismissed the plaintiff's claim.

No orders were made for costs.

Orders