Kerr v Whitehaven Coal Mining Ltd - [2020] NSWSC 1096

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 damages as a consequence. An amended statement of claim was filed on 5 June 2017.
She alleged that the defendant negligently failed to detect a soft spot on the Eastern Haul Road at the Werris Creek Mine over which she was required, in the course of her employment, to drive a dump truck. She alleged that on 19 October 2013, when her truck encountered the soft spot, she was violently jolted in the cabin of her truck. As a result, she alleged that she sustained significant injuries, including to her right shoulder, which have, over time, substantially restricted the use of her right upper limb. She is right-hand dominant.
The defendant denies negligence. Its case is that no such incident as alleged by the plaintiff occurred as there was no soft spot on the Eastern Haul Road at the relevant time.
I note that the plaintiff included an allegation in her pleading that the defendant had negligently constructed the Eastern Haul Road. As the case was not run on this basis and no submissions were made to this effect, it is not necessary to address this case, as it was not ultimately made or pressed by the plaintiff.

The relevant facts

The background to the incident

The defendant is a mining company which operates mines, including at Werris Creek in the Gunnedah region of the Hunter Valley. Work in the mining industry was, at the relevant time, regulated, including by the since repealed Coal Mine Health and Safety Regulation 2006 (NSW) (the Regulation). The Regulation imposed obligations on coal operators to perform certain inspections and to make a record of the results of the inspections.
The roads at the mine site at Werris Creek were unsealed. Thus, vehicles which travelled from the digger to the dump were required to negotiate these roads. While the speed limit for such roads was 60km/h, the drivers were instructed to drive to conditions since a significantly lower speed would be required if, for example, the road was wet or rough. Further, if the driver had not driven along a particular road for some time, it would be expected that the driver would approach the road at a lower speed than after a few circuits, when familiarity with the road and its surface may allow the driver to drive faster than on the initial circuit. It could also be expected that the driver of a dump truck which was fully laden with a load of overburden weighing 250 tonnes would drive more slowly than after the truck had been unloaded at the dump and was returning, unladen, to the digger for another load.
The defendant employed the plaintiff in its Werris Creek mine in April 2011. She had previously been trained in some aspects of mining at the defendant’s Mount Arthur mine between late 2007 and early 2009, where she had worked for a period of about 15 months. She left the mining industry in early 2009 but returned in April 2011 to the Werris Creek mine, where her father, Glendon Medhurst, worked from time to time as a relief Open Cut Examiner (OCE). Since his retirement at the age of 64 in 2009, Mr Medhurst had made himself available for shift work for the defendant at several of its mines, including Werris Creek. In 2013, he was working most weekends at Werris Creek, as was the plaintiff. His shift began at 5am and concluded at 6pm.
The plaintiff was allocated to the C-crew, a group which worked together on the four-day weekend roster. The C-crew comprised about 25 staff, including, for each shift, an OCE. The staff of the C-crew drove diggers, bull-dozers and graders as well as dump trucks along two-way unsurfaced roads, referred to as haul roads, which linked the dump to the mine. The dump trucks were used to carry overburden from the mine to the dump. Each of the members of the C-crew was linked by radio to each other. The graders were in constant use at the mine and graded the roads to assist in the smooth passage of the vehicles over them. I accept Mr Cappellin’s evidence as follows:

“Because a grader at 6 o’clock starts work with the trucks and he’ll go out and just start grading up the whole circuit whether a truck’s called them or not. And trucks do call them straight away.”

Well maintained haul roads allowed for greater frequency of movement of trucks between diggers and dumps. Poorly maintained haul roads cause trucks to drive more slowly and, as a consequence, deliver fewer loads. Thus it was important for both safety and efficiency that haul roads be well-maintained.
The OCE’s shift began an hour prior to the shift of the remaining workers to allow the OCE to perform an inspection of the roads which would be used by the crew on the shift. The OCE was also required to check the high wall, where previously detonated materials had to be dug out, as well as low wall areas which held loose material after it had been dumped. The OCE would also have to check the areas where the diggers were working as well as the dump areas, access and haul roads and windrows. The roads were about 30m in width as there was a requirement that they be at least three times the width of the widest vehicle.
The widest vehicle was the Caterpillar 793 dump truck (793). The span of the outer tyres was 7.6m. The distance between the top of the cabin to the ground was 5.5m. The length of the 793 was 13.7m. The 793 had a significant payload capacity of over 200 tonnes.
The OCE would use a 4WD troop carrier vehicle, which was considerably smaller, lighter and closer to the ground than the other vehicles which would use the roads, which meant that it was easier to inspect the surface of the road than it would be for a driver of a 793. The vehicle used by the OCE was also more sensitive to variations in the road than the larger vehicles. The OCE’s responsibility included the selection of areas for production (excavation of material into trucks) that day.
At the beginning of each shift, a board in the crib room would indicate what each worker was to do that day, what machinery the person was to use and at what location the work was to be done. Thus, when the workers arrived for their shift, they could look at the board and determine their work for the day when they came to the crib room for the pre-start meeting.
At that meeting, the OCE was required to inform the workers of any unsafe area, which had to be avoided until it was repaired. The OCE would arrange for the repair of any area which had been identified as unsafe.

The plaintiff’s hours of work

The C-crew would start at 6am on Friday and then work on day shifts (6am-6pm) on Friday, Saturday and Sunday. They would work on night shift from 6pm on Monday until 3.30am on Tuesday. This four-day work pattern constituted full-time work. When the plaintiff was first employed at the Werris Creek Mine, she worked only on Saturdays. Subsequently her hours were increased to take in the Sunday shift. She worked on a weekend roster until January 2012, after which she took time off until November 2012 as she was undertaking IVF treatment, the demands of which in the form of stress and strain could not be reconciled with her work. When she returned to work in November 2012, she returned to the weekend roster: that is, she worked only on Saturdays and Sundays. When she was working two days a week she was able to spend the rest of the week at Aberdeen at home. This arrangement suited her.
Some time after the plaintiff’s return to work in November 2012, she was told that she would have to work the full four days, instead of just Saturdays and Sundays, which counted as full-time. She worked full-time from December 2012 until the time of the incident in October 2013. During this period, she would stay in a caravan behind the Commercial Hotel at Werris Creek from Friday after work until Tuesday morning when she would drive home to Aberdeen, a journey of approximately one and a quarter hours. As a consequence, she only spent three nights at home: Tuesday, Wednesday and Thursday. At least at first, the plaintiff was unhappy about the change to a longer working week. However, she was hoping to obtain a permanent job with the defendant. She did not achieve this aim. Throughout this period she remained the defendant’s only employee to work as a permanent full-time casual.

The night shift on 18 October 2013

On Friday 18 October 2013, Craig Bright was the OCE for the night shift which continued until 3.30am on Saturday morning. In the Pre-start Inspection & Communications form, he wrote, relevantly, beside “specific information regarding today’s shift”:

“5600 ST16B/S”

William Torrens, who was an OCE employed by the defendant, interpreted this notation as a reference to 5,600 digger strip, 16 black seam, which he confirmed was the same area as the area which was being mined on his shift, being the day shift for 19 October 2013. It follows that the roads on which the plaintiff was required to drive on 19 October 2013 had been used on the previous shift by the same or similar vehicles.

The day shift on 19 October 2013

On 19 October 2013, Mr Torrens was the OCE for the shift which commenced at 6am. There was no in-person hand-over between Mr Bright and Mr Torrens as it was the weekend. As referred to above, he commenced work an hour earlier, at 5am. In order to qualify as an OCE, Mr Torrens had completed a certificate course, which involved practical and theoretical elements, and satisfactorily passed practical, written and oral examinations. He consulted the records filled out by Mr Bright before undertaking the pre-shift inspection.
Although in October 2013 it was still dark when Mr Torrens began his shift at 5am, the spotlights on the vehicle and on the site provided sufficient illumination to conduct the inspection. He conducted his pre-shift safety inspection by driving around the roads which would be used by members of the crew and inspecting the relevant areas. His driving speed on the roads required to be inspected would be approximately 40km/h. The inspection was a central part of his job. He said:

“[E]very day I’m at work, that’s what I do.”

At his pre-start inspection on 19 October 2013, he did not detect any safety hazards. His inspection of that part of the area which comprised the Eastern Haul Road took between five and ten minutes. I accept his evidence that he was able to perform all aspects of the inspection required in the hour from 5am until he met the workers in the crib room at 6am, when their shift started.
When he had completed his pre-shift safety inspection, he returned to the crib room for the pre-start meeting with members of the C-crew, which was required to occur before any of the crew began work.
It was Mr Torrens’ usual practice to raise at the pre-start meeting any hazard of which he had become aware in the course of his inspection. If no such issue had been identified, he would raise a particular issue concerning safety to remind the members of the crew of it. He recorded the topic of instruction beside the line, “Focus for this shift is” on a printed form entitled “Pre-start Inspection & Communications”. At the meeting on 19 October 2013, he noted, “incident, preserve scene, mobile 1/1 TBT, Dust”. I accept his evidence that this was a general instruction to workers to preserve the scene whenever there was an incident that could affect safety and that the instruction had been given before the incident involving the plaintiff.
I accept Mr Cappellin’s evidence that the pre-start meeting was “open-forum” in that it was open to any members of the crew to raise a matter of concern with the group and the OCE.
The tasks performed by members of the C-crew were specific and each required qualifications in the form of competency certificates. The members of the crew who were to drive heavy vehicles were instructed that they had to “drive to conditions”, which meant that they were to moderate the speed of the vehicle to take account of matters such as the road surface and the weather. For example, Dean Cappellin, who was a member of the C-crew, had, as at October 2013, obtained competency for dump trucks, drills, water carts and dozers. However, he did not have competency for graders and said that if he had tried to drive a grader he would have been dismissed immediately. This circumstance has particular relevance to the plaintiff’s credibility referred to below.
On 19 October 2013, the plaintiff was allocated a relatively new 793, which provided stairs as a means of access rather than a ladder, which was the means of access provided by older 793s. The plaintiff had expressed a preference for the newer version as she had various health problems including those consequent on her morbid obesity. She correctly understood that she was to drive a dump truck to collect overburden from the mine at the end of the Eastern Haul Road and take it to the dump. She was then required to return to the mine to collect another load.
The defendant’s business records, which I accept as accurate, show that the plaintiff began driving the 793 on 19 October 2013 at 6.14am. It took her 8½ minutes to drive to the digger to collect her load over overburden, which had a payload of 217.9 tonnes. The loading itself took just over 2 minutes. It took her almost 6 minutes to travel the distance of 2.2kms from the digger to the dump. On her way to the dump she saw another truck coming back in the opposite direction. It follows that the plaintiff’s 793 was not the first vehicle to drive over the part of the road on 19 October 2013 where she said the incident occurred. The plaintiff said that the truck coming in the opposite direction had obscured her vision of the road on which she said she was jolted.
Documents were also tendered by the defendant which came from the business records of WesTrac, the manufacturer of the 793s. The data was derived from systems installed on the trucks which recorded the movement of the vehicle over the road. As I rejected the expert reports of Professor Hebblewhite and Mr Wagstaffe which purported to explain the data (the reasons for which are set out later in this judgment), I do not consider that I can, uninstructed, draw inferences from the business records. The records are consistent with an event occurring at around 6.29am on 19 October 2013. However, the seriousness of the event and whether the injury alleged by the plaintiff was sustained at that time has not been established.
The plaintiff’s evidence was that on her way back from the dump, just after the intersection, she said that she was “suddenly jolted violently” and “thrown around the cabin”, notwithstanding that she was wearing a seat belt. She also said:

“I realized that I had hit what we call a ‘divot’ or a ‘soft spot’ in the road first with the left-hand front wheel of the truck and then with the left-hand rear dual-wheels. A ‘divot’ or a ‘soft spot’ is a depression in part of the road that has been filled in with road material that is ‘soft’, such as dirt, compared to rock that is ‘hard’. When a Caterpillar 793 truck drives over the soft spot, the soft material gives way and the truck jolts like a car hitting a pot-hole.
…
After I was thrown around in the cabin I immediately felt pain in my upper back located below and behind my right shoulder blade.”

The plaintiff’s evidence was that she did not know, and could not venture an estimate of, the speed of her vehicle when it hit the soft spot. I accept neither that she hit a soft spot, nor that she was unable to estimate her speed at the time.
As a result of her training and experience, the plaintiff knew that a soft spot on an unsealed road posed a potentially serious hazard and was to be distinguished from a rough patch on the road. She appreciated that, in order to repair a soft spot, a bulldozer would have to dig out the soft material and remove it in order that hard fill could be put into the cavity and compacted up to the surface of the surrounding road before smoothing of the surface could take place. This process was called “boxing”. She knew that repair of a soft spot could not be done with a grader. Indeed, she appreciated that if a grader smoothed over the area around a soft spot, this had the potential to cause a greater danger because it would tend to obscure the soft spot and make it more difficult to see.
There are real issues about the plaintiff’s credibility, which are addressed further below. She has given various descriptions about how the incident happened and when her symptoms first presented. I regard the most reliable versions to be the ones which she gave on 19 October 2013 to Mr Torrens at 12.30pm and to the nurse at Quirindi Hospital when she presented there at 1.38pm. The findings set out below are substantially based on those versions and the evidence of other witnesses.
The plaintiff became aware of a rough patch on the Eastern Haul Road on her first trip back from the dump to the digger at about 6.30am. She used the radio to call Adrianne Schumi, the grader operator, to smooth it out. Mr Torrens, who was also connected to the radio, heard the plaintiff call the grader. He regarded the request as unremarkable as it was not uncommon for drivers to call for a grader, including at the beginning of a shift. He did not infer from the circumstance that a grader had been called that there was an imperfection in the road. I do not accept that the plaintiff mentioned at this stage that she had been injured since it was several hours before she began to feel either discomfort or pain.

The plaintiff continued to drive the 793 on circuits from the digger to the dump throughout the morning.
I do not accept her evidence that, on the second trip to the dump she looked to the other side of the road where she had felt the rough patch had been and observed that the surface of the road had begun to crack a little and that the soft spot was roughly 1.5m in diameter. I regard this as an invention, whether subconscious or deliberate, to fortify the allegation that her injury had been caused by a soft spot on the road.
At 11 or 11.30am, about five hours after she had called the grader, the plaintiff felt some pain in her shoulder and back. At that time she took some Panadeine Forte, which she carried with her because she had long-standing issues with back pain, which could flare up at any time. The flare ups might occur when she was getting into and out of the cabin of her dump truck or being subjected to a degree of vibration or shaking when going over a rough patch on an unsealed road.
The plaintiff continued to work until about 11.50am when she stopped for crib break. She still felt pain in her back, notwithstanding the Panadeine Forte. She told Mr Cappellin, who was the safety representative, that she had hurt herself, to which he responded, “You need to go and report it to Torro [Mr Torrens].” Although Mr Cappellin did not recall the conversation, I am satisfied that it occurred since he accepted that it was what he would have said if he had been told that someone was injured. I accept Mr Cappellin’s evidence that he did not particularly concern himself about the conversation or the consequences. He gave the impression of being a man acutely conscious of his roles and responsibilities: to move dirt with his dozer and to refer problems of a safety nature to the OCE, who was responsible for such matters. His attitude appears from the following extracts from his evidence:

“I just push the dump, man, that’s as far as I go ….
when I get to work I just look at the board, see where I’m at and then I’m sort of - each circuit is sort of like isolated in a way that there can be one in a total different strip, there can be one in, say, strip 10 and there can also be an excavator in strip 11, so like I’m only interested in my smaller area.”

At about 12.30pm, the plaintiff told Mr Torrens that she had hurt herself. This was the first time he became aware that the plaintiff had hurt herself. He obtained a history from her and filled in an incident report form. His record of what he had been told is contained in a pro forma document entitled, “Incident report”. It was not put to Mr Torrens that he had incorrectly recorded what he had been told by the plaintiff. He recorded:

“After getting the first load at 6.18am from EXC 570 the operator was returning from the dump on the eastern side of the pit. At the intersection of the eastern haul road and the 420 dump level the truck struck a divit [sic]. The operator called the grader and continued operating. At 11am-11.30am the operator felt some discomfort and took 2 panadeine forte, to ease the back pain. At 12.30pm the operator notified the OCE that she had an injury to report, sore back. The operator was taken to Quirindi hospital for assessment. All operators told to take care in rough sections. Drive to conditions.”

At about 12.40pm, the plaintiff herself filled in a document entitled “witness statement” in which she wrote:

“First load @ 6.18am. In truck 662 coming of[f] Eastern Dump there was a divit [sic] on the intersection that I hit as I didn’t see it. I called a grader up to grade the area and continued to operate truck but going around the area. Then at around 11.00 to 11.30am I realised I was hurt. Reported it to OCE @ crib. Took 2 panadeine forte around 10.45am.”

As soon as the plaintiff had filled in this form, Mr Torrens arranged for a co-worker to take the plaintiff to Quirindi Hospital and went to the location on the Eastern Haul Road described by the plaintiff to find the hazard she had told him about. He was unable to find anything wrong with the road and took a photograph of what he had seen. He said:

“When I’ve gone to inspect you can see where a soft spot has been graded over, even when it’s been graded you can tell there’s still a soft spot. There was no evidence of a soft spot being there.
…
Even though it had been graded, if it’s one big enough to throw a truck or throw an operator in the cab of a truck, you can grade over it, it will still be there, it, it won’t just disappear even with a grade.
… [T]he grader was a comb grader so it turns up the top 50 mil of dirt. You’re going to get wheel tracks in it…”

Mr Inman, a former employee of the defendant, recalled that on the morning of 19 October 2013 he also heard on the radio a man whom he identified as Mr Cappellin asking for one or two truck-loads of overburden to be delivered to the site of a rough spot at the top of the ramp. I am not persuaded that the person who made the request was Mr Cappellin or that the delivery had anything to do with the plaintiff’s incident. I accept Mr Cappellin’s evidence that he was not responsible for the request and the reason for his denial, as follows:

“No, because that’s a big deal if I change road conditions, like, it’s not, you can’t ask just an operator to start excavation work or any sort of work unauthorised by the OCE. I can’t just go and chew, chew a road out.”

The plaintiff is recorded as having told the nurse who examined her at the hospital that the pain did not come on until some hours after she was jolted. The presenting history recorded in the emergency department triage notes was as follows:

“Female aged 41 years, 4 months presents with Pain – Acute, Pt [patient] BIB [brought in by] supervisor with a pain in her right thoracic region. Pt was driving a truc[k] at work at 0630 hours and hit a ditch, causing the vehicle to jolt. Pt continued to work and at 1030hrs pt developed the pain in her back and notified her supervisor. Pt took 2 x panadeine forte which had little effect and though pain does minimally restrict pts movements, she is able to walk and has equal power in limbs. Pt is well perfused and has Hx [history] of scoliosis, Long QT syndrome and anxiety.”

The fellow-employee who had driven the plaintiff to the hospital drove her back to the site, where she remained in the office for the rest of the day.
Mr Polin SC, who appeared with Mr Best on behalf of the plaintiff, submitted that I should draw inferences against the defendant in accordance with Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 as it did not call various people who were present at the site on the day, including Ms Schumi, the grader operator. I do not consider it to be appropriate to draw the inference (that the evidence of the missing witness would not have assisted the defendant’s case). The defendant did call Mr Torrens, Mr Cappellin and Mr Lawrence (the safety officer). Although Ms Schumi was nominated as a witness in the plaintiff’s report of the incident, it was not suggested that she actually saw the plaintiff’s 793 driving at the relevant time, or that she would have been in a position to notice the movement of the vehicle. Further, because I do not accept that the plaintiff said that she was injured when she called for the grader, there was no forensic need for the defendant to call her. It was common ground that the plaintiff had called a grader early in the shift. In circumstances where Ms Schumi’s evidence could not be expected to elucidate a particular matter, it would not be appropriate to draw such an inference: see Payne v Parker [1976] 1 NSWLR 191 at 200-202, and particularly at 201E (Glass JA), which concerned the circumstances in which a direction that the inference was available ought be given to a jury.

The events of Sunday 20 October 2013

On 20 October 2013, the plaintiff was present at the pre-start meeting. She told those present that there was a soft spot at the junction of the Eastern Haul Road. Mr Torrens looked at the board and saw that Mr Cappellin was on the dump dozer, which was to work near the Eastern Haul Road. He instructed Mr Cappellin to go out to the area to try to find the soft spot before he started his own work, which involved moving dirt with a dozer.
Mr Cappellin went out to the location described by the plaintiff in a light vehicle, which was probably driven by Mr Torrens, to inspect the location with a view to finding the soft spot which the plaintiff had mentioned. He went up and back in the vehicle and did a U-turn but he was unable to locate any defect in the road at the location described by the plaintiff. He said:

“[W]e went around so we just drove, drove around and I couldn’t find one, so there was, there was trucks started running on it and no-one complained so it mustn’t be one there. I don’t know, I didn’t see it. I don’t know.”

He regarded the road as being in good condition and was satisfied that there were no defects in the road which required repair. After the inspection, Mr Torrens, or whoever had gone with him in the light vehicle, dropped Mr Cappellin in the light vehicle to his dozer for the earth-moving task he was to perform that day.
I accept the evidence of Mr Torrens and Mr Cappellin that, even if the area had been graded, a soft spot would still have been visible because the grader’s work on the surface was superficial.
I accept Mr Cappellin’s evidence that if a soft spot had been detected, a grader would not have been called to repair it. He said:

“The grader just does very superficial work, like, if it, if there’s a big, if it’s a big sort of operation that’s gone - when I say, it’s not huge, but if there’s an operation that’s going to happen, that’s going to change traffic conditions on that road. It gets windrowed, it gets sign posted single lane, it gets, it’s a big deal, they make a really big deal out of it.”

The plaintiff spent the day in the office at the Werris Creek mine.

The examination on 21 October 2013 and the submission of a claim form

The consultation with Dr Saad

On Monday, 21 October 2013, the plaintiff saw Dr Saad and told him that she had injured her back and neck while sitting in the cabin. On examination she described tenderness in her neck and her back for which she was prescribed analgesic medication. She was certified unfit for her usual duties until 25 October 2013, which was the following Friday.
In a subsequent report dated 9 January 2014, a doctor at the Murrurundi Medical Centre (who may have been Dr Saad) reported that the plaintiff had, at the initial consultation on 21 October 2013, told the doctor (who may have been either Dr Saad or Dr Ismail) that the pain started two hours after the accident. A similar report was also made by Dr Ismail to Muswellbrook Physiotherapy when the plaintiff was referred there for treatment on 16 January 2014. When this was put to the plaintiff, she denied it. I accept the business records as being more reliable than the plaintiff’s recollection, although I regard the contemporaneous records of her versions of events on 19 October 2013 to be more accurate than subsequent versions.

The plaintiff’s claim form

On 21 October 2013, the plaintiff filled in a “worker’s claim form”. In the form she said that her shift had commenced at 6am on 19 October 2013 and that she had ceased work as a result of the injury at 12.30pm on that day. She described the nature of the injury as “knocked out”. Because the plaintiff makes no allegation that she ever lost consciousness, I consider this to be an infelicity of expression and would read the injury as “knocked around” instead of “knocked out”. She nominated Dr Saad as her treating doctor. She gave the details of the injury:

“I got loaded at 6.18am[,] travelled to dump[,] tipped load[,] was head[ing] back to differ, came through the intersection where dump road meets eastern haul road. hit a divet in the road and got thrown around.”

In the claim form, the plaintiff identified Ms Schumi as a witness and said that she was the grader operator whom she called “to grade that part of the road”.

The plaintiff’s return to pre-injury duties

On the following Friday, 25 October 2013, the plaintiff went to see Dr Saad, who certified that she was fit for pre-injury duties. She returned to work after the appointment as a crib relief driver for the rest of the day. When she arrived at work on Saturday 26 October 2013, she was allocated a newer 793, with stairs rather than a ladder, and was directed to perform her usual duties. She continued to work and completed her Monday shift at 3.30am on Tuesday morning.
Mr Medhurst was on duty as the OCE for the C-crew for the weekend following the incident, beginning on Friday 25 October 2013. As the OCE, he conducted a pre-start inspection for the area which included the Eastern Haul Road. When he filled out the pre-start inspection form for the 6am shift, he certified that he had inspected the work areas and found them safe for operations. In accordance with a further inspection conducted at 4pm on 25 October 2013, Mr Medhurst certified, on a form required by cl 15(1)(g) of the Regulation that the haul roads and ramps in the area were “well graded and free of spillage and holes” and assessed the condition of the “roads, ramps and dumps” as “satisfactory” as to level of risk. He filled in similar forms in the same way and in the same terms for the shifts on Saturday 26 October and Sunday 27 October 2013.
Notwithstanding that he had completed these forms contemporaneously on the days specified in them, apparently in accordance with the Regulation and the requirements of the defendant, Mr Medhurst gave evidence that, when the plaintiff returned to work on 26 October 2013, she contacted him on the 2-way radio and told him that the area where she had had the accident had not been fixed. Mr Medhurst said that he went to the area and observed a hole in the Eastern Haul Road which was about 3m in diameter and about 400-500mm deep. He also saw a “large hump about 300-400mm high”. Mr Medhurst said that, as a consequence of what he saw, he instructed a dozer driver to go to the area and dig out the soft spot and fix it. In cross-examination, Mr Medhurst admitted that if he had seen the hole in his pre-start inspection, he would “never tick the box saying that the road was satisfactory… because it would be obvious that it needed urgent attention”.
I do not accept this evidence. Had there been a hole of these dimensions, I consider that Mr Medhurst would have noticed it during his pre-start inspections on 25 or 26 October 2013. While a soft spot may be more or less obvious at particular times, I do not accept that a soft spot which was of the dimensions observed by the plaintiff on 19 October 2013 would have been unnoticed for a period of a week and then reappear on 26 October 2013. Mr Medhurst was not an impartial witness because he is the plaintiff’s father. Further, it was plain from his answers in cross-examination that he had not seen the inspection documents which he had filled in on 25, 26 and 27 October 2013 until they were shown to him by Mr King SC, who appeared with Mr Rowles on behalf of the defendant.
I reject the submission made by Mr Polin that it was not open to Mr King to submit that Mr Medhurst’s evidence ought not be accepted because he failed to comply with the rule in Browne v Dunn (1893) 6 R 67. The rule is a matter of fairness and requires a party to indicate, whether in cross-examination or otherwise, that a witness’s evidence is challenged and, on what basis: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 26 (Hunt J). Mr King put the contemporaneous records filled in by Mr Medhurst to him in cross-examination, thereby drawing his attention to the disparity between his oral evidence and the business records. He also put the motive which would account for his oral evidence: namely that he had fabricated the evidence about what had occurred on 26 October 2013 to help his daughter. This was ample to put the plaintiff on notice that the defendant challenged Mr Medhurst’s evidence. It was not for Mr King to go further to explore the reasons for the inconsistency. The forensic choice whether to explore such reasons was for Mr Polin to make. The plaintiff is bound by his objectively reasonable forensic choice not to re-examine Mr Medhurst about the inconsistencies: R v Birks (1990) 19 NSWLR 677 at 683.

The end of the plaintiff’s work with the defendant

It was common ground that the plaintiff no longer worked for the defendant from 3 January 2014. I assume that, as she was a casual, the defendant no longer wished her to work for it and chose not to offer her further work.

Production of documents

Mr Polin contended that I could draw an inference that the defendant did not have an inspection program as required by cl 15 of the Regulation for the area which contained the Eastern Haul Road. He relied on subpoenas issued at the request of the plaintiff dated 14 July 2014, 21 March 2018, 12 November 2019 and 26 February 2020 and contended that no inspection program had been produced. I accept Mr King’s submission that the inspection program was not caught by any of the subpoenas. No notice to produce was issued requiring production of the program. The defendant’s documents showed that the OCE did inspect the area. I accept Mr Torrens’ evidence that he considered that he was able to inspect the area within the period of one hour between the commencement of his shift and the arrival of the workers for the pre-start meeting in the crib room. In these circumstances, I am not persuaded that it would be appropriate to draw the inference for which Mr Polin contended.
I understood Mr Polin to submit further that I ought draw an inference against the defendant from its failure to tender the inspection program (as it was plainly a document within its possession or control if, indeed, it existed) that it would not have assisted the defendant: Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 at [134]; Ronchi v Portland Smelter Services Pty Ltd [2005] VSCA 83 at [44] (Eames JA, Buchanan and Nettle JJA agreeing). I am not persuaded that it is appropriate to draw such an inference. Whatever the contents of the inspection program, Mr Torrens’ evidence was that he had inspected the Eastern Haul Road before the commencement of the shift on 19 October 2013 and that he considered that he had adequate time to do so. Thus, whatever the contents of the inspection program, the evidence was that the Eastern Haul Road was inspected. Further, it was entirely within the capacity of the plaintiff to seek production of that document by serving a notice to produce. Thus, it was within the plaintiff’s power to tender the document: see Blatch v Archer (1774) 1 Cowp 63 at 65 (Lord Mansfield CJ).

Credibility of witnesses

The plaintiff

The plaintiff’s evidence in chief was replete with inconsistencies with the surrounding circumstances and with earlier statements she had made. While she may presently believe her evidence to be the truth, I do not accept it, except in so far as it is corroborated or against interest.
Her recollection as to what occurred that day has been affected by the passage of time in several respects. As is recorded in a letter dated 28 February 2018 from the plaintiff’s solicitors to Mr Cappellin, the plaintiff had previously instructed her solicitors as follows:

“We advise that we are instructed to act on behalf of Ms Kerr in relation to an incident which occurred on 19 October 2013 while she was employed with Whitehaven Coal Pty Ltd.
We are instructed that you were also employed at that time at the same mine.
We are instructed that you were a grader operator who was called to fix the area where Ms Kerr suffered her injury.
We are instructed that you had to dig out and re-level the area on at least two occasions.

…”

I accept Mr Cappellin’s evidence that after he received the letter, which he described as a “random letter”, he rang the plaintiff’s solicitors and told them:

“Listen, I - it’s impossible. Like I’m not - I’ve never been in one [a grader]. I’d get the sack if I went in one.”

I assume that it was after this letter that the plaintiff ventured to her solicitors that the grader driver was Ms Schumi and not Mr Cappellin. Her version to her solicitors was also incorrect in that it is not part of the grader’s duties to dig out the area, since this task would be done by a dozer operator and would necessitate sign posting and reducing the road to a single lane for the duration of the work.
Another instance of the plaintiff’s unreliability comes from the significant disparities between, on the one hand, the histories she gave on 19 October 2013 in her witness statement, to Mr Torrens and to the nurse at the Quirindi Hospital which are set out above and, on the other, her evidence in chief and her statements to medical practitioners. Her evidence in chief was that she suffered immediate sharp pain in her shoulder and back. The passage of time and the plaintiff’s concentration on her case have influenced her to telescope the time between the incident at 6.30am and the onset of symptoms from about five hours (on the day of the incident) to two hours (when she consulted a doctor at the Murrurundi Medical Centre on 21 October 2013) to an instantaneous onset. By the time she made her witness statement for the purposes of the proceedings on 31 August 2018 she had become convinced that the onset of pain was immediate, as is reflected in the following passage at paragraph 42:

“After I was thrown around the cabin I immediately felt pain in my upper back located below and behind my right shoulder blade.”

Mr Polin submitted that I either had to find for the plaintiff on liability or find that she was a deceptive liar who had, from the day of the event, constructed a fraud on the defendant to obtain compensation and damages. He also submitted that the defendant ought to taken to have admitted that she had been injured when it accepted her workers compensation claim.
The acceptance of such a claim amounts to an informal admission only and not an estoppel. As such, it must be viewed together with the other evidence in the case: Hoad v Swan (1920) 28 CLR 258 at 264-265; [1920] HCA 50. This included an ultimate refusal to continue to make workers compensation payments. Further, the defendant’s case before me was not that the plaintiff had not suffered an injury; rather, Mr King submitted that, at most, she had suffered a soft tissue injury which had resolved. Therefore the acceptance of the plaintiff’s workers compensation claim did not need to be explained: cf. Fokas v Staff Australia Pty Ltd [2013] VSCA 230 at [30]-[37] (Dixon AJA, Nettle JA and Hargrave AJA agreeing).
In any event, I am not persuaded that the initial acceptance of the claim should be accorded any particular weight in the present case, although I have taken it into account. It is to be expected that the investigation and resources that go into defending a substantial claim for common law damages in this Court will substantially exceed the relatively superficial investigation and examination required to assess whether a workers compensation claim made by an employee ought be accepted by his or her employer. Further, there are plainly different issues as to what is sufficient to trigger the defendant’s liability in the case of a compensation claim as compared with a claim for damages in tort. All that is required for the former is that the worker sustain an injury in the course of employment.
I do not accept Mr Polin’s analysis or that the circumstances of this case require me to make the choice which he contended was obligatory. Lord Pearce's dictum in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 is instructive when considering the plaintiff's credibility in the instant case:

“‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be ... Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
[Emphasis added]

Although the plaintiff, when specifically challenged in cross-examination, readily acknowledged many of the propositions put to her, she was inclined to give a broad-brush version of what had occurred which was then disproved or modified by the defendant. For example, she told many of the doctors that she had worked for a long period in the mining industry whereas her employment was relatively short-lived. When it was put to her that she regularly went to places outside Aberdeen, she responded: “Not if I can help it”. When asked about leaving Aberdeen, she volunteered that she would leave to go to appointments or to visit her daughter in hospital or her mother in a nursing home.
I regard the plaintiff as unreliable rather than strictly dishonest. She appeared to have constructed a narrative which would make the defendant responsible for many of her present difficulties. This led to her either deliberately, or unwittingly, underplaying the importance of other factors such as her pre-existing low back pain, obesity and anxiety and depression as well as her commitment to her daughter’s welfare. It also led to her reconstructing the narrative of the events of 19 October 2013 and the following weekend to enhance the impact of the event and the size of the imperfection in the road. This is a common feature of such litigation, as described by Lord Pearce. However, it highlights the importance of contemporaneous documents in ascertaining what actually occurred and in identifying personal interest or motive when attributing weight to the evidence of witnesses.
The plaintiff gave a substantially expurgated version of her activities to doctors. In her evidence in chief, she disclosed some trips and activities, including those which she had disclosed to doctors. In cross-examination many activities were put to her based on her Facebook entries for particular dates. These entries and the plaintiff’s admissions in cross-examination form the basis for several aspects of the narrative set out below in the consideration of the damages claim. Much was made by Mr Polin of the circumstance that the plaintiff had been subjected to surveillance for a period of a total of 11 days from September 2014 until July 2020 and that none had been tendered. While I accept that entries in a Facebook account ought be understood to represent, disproportionately, the special moments and events in the life of the account holder, they nonetheless display a continuing capacity by the plaintiff to partake of ordinary social life, through travel and social activities with friends and family. This is to be juxtaposed with her evidence referred to above that she would not leave Aberdeen to go anywhere else if she could help it. I do not regard the non-tender of the surveillance evidence as being something which materially bolsters the plaintiff’s credibility.
I also regard it as significant that the consensus of medical opinion is that there is no muscle wasting evident in the plaintiff’s right upper limb. The absence of muscle wasting is regarded by the experts as being consistent with normal use.

Mr Inman

I accept Wayne Inman’s evidence that on 19 October 2013 he was working on the little loader transferring dirt from the pit to the highest dump. This meant that he was not required to drive a truck on the circuit from the loader to the dump. At around the beginning of the shift he heard one of the members of the C-crew over the radio saying, “There’s a rough spot in the road at the top of the ramp going up to the dump.” He also heard the person ask for a grader to come and repair the rough spot. To the best of his recollection the person who made the request was Tommy Taylor. I am not persuaded that this communication had anything to do with any request made by the plaintiff for a grader. Apart from any other considerations, including the identity of the caller, the plaintiff says the incident occurred when she was returning from the dump and not when she was going to the dump.
I accept that Mr Inman was giving evidence as well as he could recall it. The first time he made a statement as to his recollection was in February 2020. I find that he was mistaken as to Mr Cappellin’s involvement. For the reasons given above, his evidence, though probably accurate, was not material.

Mr Torrens

I accept Mr Torrens’ evidence. I am satisfied that he did not purport to have a greater recollection of events than he actually had. Although he continues to work for the defendant, I do not regard his evidence as affected by that circumstance. His interest at the time of the events was in the safety of the workers in the C-crew and in the productivity of their work. His reputation and standing as an OCE depended on both of those matters. He impressed me as someone who took his responsibilities as an OCE seriously and who investigated the plaintiff’s allegation that there was a soft spot as soon as he became aware of it and also on the subsequent day when she raised it at the pre-start meeting.

Mr Cappellin

Mr Cappellin signed his statement on 20 December 2019, over six years after the events with which it was concerned. His recollection of the events was presumably triggered when he received the letter from the plaintiff’s solicitor in early 2018 but as his response was a simple one (that it could not be true because he did not drive graders), he may not have had cause to remember very much about what happened until he spoke to the defendant’s solicitors shortly before signing his statement. When asked about his recollection after such a significant period, he said, and I accept:

“If there is an event, [my recollection is] fairly good, because mining is extremely boring and repetitive and whenever there is a change everyone on the team seems to remember it.”

He described C-crew as being:

“… sort of an isolated crew, so it was only a smaller sort of thing that we wouldn’t like you would, you would change OCEs, yes, but it’s a very small pit and you know who you’ve worked with.”

Liability

Because the plaintiff’s claim is against her employer, the Civil Liability Act 2002 (NSW) does not apply: s 3B(1)(f) of the Civil Liability Act. The common law governs the defendant’s liability. The legislation which governs the assessment of damages is Division 3 of Part 3 of the Workers Compensation Act 1987 (NSW) as relevantly modified for workers, such as the plaintiff who worked in the coal industry.
The common law duty owed by employers to employees was articulated as follows in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 (Czatyrko) at [12]:

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

The relevant risk, which the defendant was obliged to take reasonable care to avoid, was the risk that the driver of a vehicle would suffer injury if a soft spot was not detected on an unsealed road. It was common ground that it was reasonable for the defendant to avoid the risk of harm by carrying out of an inspection of the road surface, relevantly, before the beginning of the shift. The plaintiff’s case was that Mr Torrens had not carried out such an inspection adequately and that, had reasonable care been taken, he would have detected the soft spot which the plaintiff alleged was the cause of her injury. The defendant’s case was that Mr Torrens did conduct an adequate inspection and that no such soft spot was detected. The defendant submitted that there was, in any event, no soft spot on the road and, in so far as the plaintiff’s vehicle jarred this was either the consequence of a rough patch on the road, which was to be expected on an unsealed road, or that the plaintiff was driving too fast for the conditions, or both of these matters.
The first question is whether there was a soft spot on the road on which the plaintiff was travelling in her 793 on 19 October 2013. I am not satisfied that there was. There are several surrounding circumstances which make it highly improbable that there was a soft spot. These are as follows:

no hazard had been identified on the previous shift on 18 October 2013 during which trucks had used the same route as the plaintiff had used on 19 October 2013;

Mr Torrens did not detect a soft spot on his pre-start inspection, which I find to have been conducted carefully and with a view to detecting defects in the road;

the plaintiff’s truck was not the first vehicle to have travelled along the road where the incident happened and no soft spot was reported following that journey;

the plaintiff called for a grader to grade the road which she appreciated would not have been an appropriate response if she had, indeed, encountered a soft spot;

when Mr Torrens went to the location identified by the plaintiff at lunchtime on 19 October 2013, he was unable to locate any soft spot;

when Mr Torrens and Mr Cappellin went to the location first thing on 20 October 2013, neither was able to locate any soft spot;

notwithstanding that many vehicles travelled over that circuit on 18 October 2013 and the ensuing days, Mr Torrens was not aware of any other complaint about a soft spot;

when Mr Medhurst was OCE on 25, 26 and 27 October 2013, he did not identify any hazard on the roads in the contemporaneous business records which he had a statutory obligation to complete, although the trucks were still using the circuit that included the Eastern Haul Road.

It follows from the fact that I am not persuaded that there was a soft spot (as distinct from a rough patch) on the road that there was nothing that the defendant could have done to detect a non-existent soft spot. However, I am satisfied that the inspection carried out by Mr Torrens before the beginning of the shift was sufficient to discharge the duty owed by the defendant to the plaintiff.
I do not regard the fact of an injury (of whatever type) as being relevantly corroborative of the plaintiff’s allegations of negligence. Indeed, there is a real question about whether whatever the plaintiff encountered on the Eastern Haul Road at 6.30am had anything to do with the discomfort she felt at 11am that day. The only link between the roughness of the road and the onset of pain four and a half hours later is the plaintiff’s belief that the one caused the other. The medical evidence in the case is of no particular assistance on causation since none of the doctors gave an opinion based on the version of the facts which I prefer: namely the one first given by the plaintiff on the day of the incident.
The plaintiff had a background of significant health problems, both physical and psychological. The work of a dump truck operator, while sedentary in a sense, required some physical effort to get into the cabin. Such work also required care on the part of the driver to negotiate unsealed roads in heavy vehicles. The drivers were obliged to drive to conditions to avoid any unnecessary disruption to the smoothness of the ride which carried with it the potential to cause injury to the driver, damage to the vehicle, and slippage of the load. In these circumstances, a driver, particularly one such as the plaintiff who was susceptible to injury, could be injured without any negligence on the part of the defendant. The plaintiff has not excluded the hypothesis, which is plainly open on the evidence, that all she encountered on the Eastern Haul Road was a rough stretch of road which she believed a grader could smooth out and that, subsequently, she decided to exaggerate what had occurred in order to obtain further compensation payments and, ultimately, common law damages. Although the defendant does not bear the onus of proof, I prefer this hypothesis, which was advanced by the defendant, and consider that it has been established on the balance of probabilities.
The plaintiff has not discharged her onus of establishing that any jolting she experienced in her dump truck on 19 October 2013 was caused by any defect in the road which the defendant, exercising reasonable care, could have detected. This was the basis on which the plaintiff put her case. It follows that the defendant is not liable for any injuries sustained by the plaintiff on 19 October 2013.

Contributory negligence

By reason of my finding that the defendant is not liable to the plaintiff, it is not necessary to determine contributory negligence. However, my duties as the primary judge require me to do so.
The plaintiff was required to take reasonable care for her own safety. In the context of the present case, this required her to drive to conditions. The incident occurred on her first circuit for the day. As she had not driven on that road for some time and as this was the first time on 19 October 2013 that she was required to drive the circuit from the digger to the dump and back to the digger again, she ought to have driven more slowly than she did in order to become acquainted with the road. Although the plaintiff was not even prepared to hazard a guess as to how fast she was driving, I infer from her description of the way she was jolted in the cabin that she was driving too fast. I assess the deduction for contributory negligence at 30%.

Damages

Notwithstanding my finding that the plaintiff has not established that the defendant is liable, I am obliged, as trial judge, to make findings on damages in any event. As the defendant was the plaintiff’s employer s 151G(4) and (5) (now repealed) apply to damages for non-economic loss and s 151H applies to damages for economic loss.
It was common ground that the applicable provisions which were relevant to the plaintiff were those in the version of the Workers Compensation Act which was in force from 2 April 2001 until 14 July 2001. The reason for this version being the applicable version is that those working in the coal industry were exempted from the amendments which came into force after that date: Workers Compensation Act, Sch 6, Pt 18, cl 3. The sections relevantly provide:

“151G   Damages for non-economic loss
…
(2)    The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.
(3)    The maximum amount which may be awarded for non-economic loss is $204,000, but the maximum amount may be awarded only in a most extreme case.
(4)    If the amount of non-economic loss is assessed to be $36,000 or less, no damages for non-economic loss are to be awarded.
(5)    If the amount of non-economic loss is assessed to be between $36,000 and $48,000, the amount of damages to be awarded for non-economic loss is as follows:
…
(7) Division 6 of Part 3 (Indexation of amounts of benefits) applies as if the amounts of $204,000, $36,000 and $48,000 were adjustable amounts and were referred to in section 81 (1). However, section 80 (2) does not apply to the amounts of $36,000 and $48,000.
(8)    If an amount mentioned in this section:
(a) is adjusted by the operation of Division 6 of Part 3, or
(b)     is adjusted by an amendment of this section,
the damages awarded are to be assessed by reference to the amount in force at the date of injury.

151H   No damages for economic loss unless injury serious
(1)    No damages are to be awarded for economic loss unless the injured worker has received a serious injury or dies as a result of the injury.
(2) A serious injury is, if received before the commencement of Schedule 2 (2) to the Workers Compensation (Benefits) Amendment Act 1991:
(a)     an injury for which the compensation otherwise payable under section 66 for the loss or losses resulting from that injury is, in the opinion of the court, not less than 33 per cent of the maximum amount from time to time referred to in section 66 (1), or
(b)     an injury for which damages for non-economic loss of not less than $67,800 are to be awarded in accordance with this Division (whether or not compensation is payable under section 66).

(2A) A serious injury is, if received on or after the commencement of Schedule 2 (2) to the Workers Compensation (Benefits) Amendment Act 1991:
(a) an injury for which the compensation otherwise payable under section 66 for the loss or losses resulting from that injury is, in the opinion of the court, not less than 25 per cent of the maximum amount from time to time referred to in section 66 (1), or
(b) an injury for which damages for non-economic loss of not less than $48,000 are to be awarded in accordance with the Division (whether or not compensation is payable under section 66).

…
(4) Division 6 of Part 3 (Indexation of amounts of benefits) applies as if the amount of $48,000 were an adjustable amount and were referred to in section 81 (1). However, section 80 (2) does not apply to the amount of $48,000.
(5)    For the purposes of determining whether an injury is a serious injury, the court has the powers under this Act of the Compensation Court relating to the reference of a matter to a medical referee or medical panel for report.
(6)    If an amount mentioned in this section:
(a) is adjusted by the operation of Division 6 of Part 3, or
(b)  is adjusted by an amendment of this section,
the damages awarded are to be assessed by reference to the amount in force at the date of the injury.”

Facts relevant to damages

Before turning to the heads of damage, I propose to set out the relevant facts.

Pre-incident events

The plaintiff was born in 1972. She was 41 at the time of the incident and 48 at the time of the hearing. When the plaintiff was still a child she was sexually assaulted by family members. She was sexually assaulted again by strangers when she was 13 and 19 years old. Between the ages of 17 and 20 she received counselling and cognitive behavioural therapy.
The plaintiff was born with scoliosis. She had rheumatic fever as a child. When she was about 9 or 10 years old she fell from a horse and hurt her neck but recovered. When she was 17 she obtained treatment for scoliosis in the form of pain-killing medication.
The plaintiff left school before obtaining the Year 10 certificate. She obtained various jobs, including working in the offal room at the abattoirs in Aberdeen, on her father’s dairy farm, as a deli assistant at Woolworths and at a café in Aberdeen.
In 1994, at the age of about 22, the plaintiff began to play darts. She played competitively every Thursday night. She played in the masters at the women’s championship level. Her daughter also plays darts. The plaintiff accompanies her daughter to the darts competitions on Thursday nights but no longer plays as she can no longer elevate her arm to throw accurately at the dartboard. She still takes part as a spectator.
Also in 1994, the plaintiff was diagnosed with a heart condition which was managed with medication. She consulted a cardiologist, Dr Richmond, from time to time for this condition.
She became pregnant in 1998, which caused her to feel back pain, for which she obtained chiropractic treatment. The plaintiff’s daughter, Jalissa, was born in December 1998.
In July 2004, she decided to try to get a job in the mines and did a correspondence course to obtain a General and Vocational Education Certificate, which is equivalent to a Year 10 school certificate. She completed the certificate in 2006 and began to apply for jobs in the mines.
In September 2007, the plaintiff obtained employment at BHP Billiton and began training as a plant operator at Mount Arthur Coal. After 12 months she became qualified to drive and operate dump trucks and water carts. She married a man who also worked at Mount Arthur Coal.
In 2008, the plaintiff had the first of three gastric operations with a view to overcoming morbid obesity. Subsequent operations were performed in 2010 and August 2019. On 12 October 2008, the plaintiff presented at Scone Hospital with neck pain on both sides of her neck.
In February 2009 the plaintiff and her husband left their respective positions at Mount Arthur Coal because they had bought a nursery and pet supply business in Scone. However, this business was not viable and was closed in May 2010. According to statements made by the plaintiff to doctors from time to time, her husband returned to work at Mount Arthur in the mines.
In April 2011, the plaintiff obtained employment with the defendant at the Werris Creek mine. As referred to above, she originally only worked on Saturdays but her hours gradually increased.
In May 2011 the plaintiff gave up smoking by taking Zyban. The medication caused her to suffer anxiety. She had previously consulted Dr Ross Mowbray as her general practitioner. She discovered that he had moved to Turramurra. She decided to see him again, notwithstanding the distance, because she trusted him. He prescribed further medication. The plaintiff has continued to consult with Dr Mowbray every six months since that time. In August 2011, the plaintiff was taking both Naprosyn 500 and Panadeine Forte for pain. She made the declaration to the defendant because she understood that Naprosyn would be detected if she were drug-tested at work.
As referred to above, the plaintiff did not work from January until November 2012. In November 2012, just before the plaintiff’s hours were increased to full-time hours over four days, she went to see her cardiologist, Dr Richmond and told him that she had been taking an anti-depressant since April 2011 and had also been having counselling. One of the people from whom she obtained counselling was Tim Andrews, a psychologist, from whom she sought information, guidance and support relating to her employment, education and training options, which I understand to be a reference to her post-incident options.
In December 2013, Dr Mowbray confirmed in a letter to the defendant that the plaintiff had been on a low dose of anti-depressant and anti-anxiety medication for years and that she was taking Cymbalta (an anti-depressant), Sandomigran (for migraines) and Valium (for anxiety).

The incident

The medical appointments proximate to the incident on 19 October 2013 have been referred to above.

Cessation of work in January 2014

The plaintiff stopped working for the defendant on 3 January 2014, or at least ceased earning income from the defendant from that date.

The purchase of the beauty business

The plaintiff’s daughter, who had difficulties at school, had expressed an interest in becoming a beautician. In 2014, the plaintiff’s husband purchased a beauty business on the plaintiff’s behalf for the sum of $18,000 in order to provide her daughter, who had turned 15 in December 2013, with an occupation and help her into the workforce. The plaintiff performed administrative tasks in the business, which employed Jalissa as well as trained beauticians.
On 3 January 2014, the plaintiff had x-rays of both her cervical and thoracic spine. The report from Muswellbrook radiology reported a clinical history of “jarring injury. Right sided pain”. An x-ray of her cervical spine showed that the C6/7 disc spaces were a little narrowed but were still within the normal range. An x-ray of her thoracic spine showed minimal scoliosis and minimal degenerative features.
In February 2014, the plaintiff went with her daughter to a studio filming of The Voice, a television program, in Sydney. On 15 March 2014, the plaintiff went to a country music concert at the Hope Estate in the Hunter Valley.
On 18 March 2014, the plaintiff had an MRI scan of her cervical spine which showed a minor disc bulge at C6/7 without any neural compression.
In late March 2014, the plaintiff and her daughter travelled to Los Angeles for nine days in the course of which they visited Disneyland, Universal Studios, and SeaWorld at San Diego. They also visited the Hard Rock Café, the Kat Von D tattoo studio and other venues in Hollywood.
On 1 July 2014 the plaintiff had an MRI scan which showed a superior labral tear into the biceps labral anchor and tendinosis of the rotator cuff.
On 21 August 2014, the plaintiff had an ultrasound guided injection into her right subacromial bursa which did not affect her symptoms.
On 28 August 2014, Dr Katekar performed nerve conduction studies on the plaintiff which did not indicate any abnormality in the right ulnar nerve but which indicated minor slowing across the carpal tunnel of the median nerve.
On 10 September 2014, the plaintiff saw Dr Watson, an orthopaedic surgeon, at the request of the defendant’s solicitors. He opined:

“Having reviewed the patient today on 10 September 2014 she has ongoing subjective symptoms. I could not confirm any pathology that warrants any further investigations, I cannot determine any clinical signs of instability and she has no clinical signs of impingement with negative Hawkin's, Jobe's and Neer’s tests. I do not believe there is any evidence of pathology which would prevent her from undertaking gainful employment or could be attributed to the period of 19 October 2013.
She does appear to have been submitted to an MRI of the cervical spine but the report only was noted of 18 March 2o14. The report does not confirm any evidence of compromise of either the spinal cord or the exiting foramina. There is some slight prominence of the central spinal canal at C7/T1 but there does not appear to be any evidence of pathology that would account for these subjective symptoms. There is an incidental haemangioma at C7. There is minor disc bulge at C6/7 but the spinal canal calibre is well preserved throughout and there is no evidence of intra or extra articular cord lesion with thoracic cord and craniocervical junctions appear normal.
Having reviewed the report and the subsequent MRI arthrogram of the right shoulder of 1 July 2014, I do not believe this patient warrants any further investigations or treatment.
…
1. Please obtain a detailed history from the worker including social history.
This patient stated she had been employed with Whitehaven Coal at Quirindi and has been in that employment since April 2011, and was alleged to have sustained an injury on 19 October 2013 at 6.30am. She was driving a truck and appears to have hit a soft spot, was thrown around in the cabin of her vehicle but was wearing a seat belt and had pain in the mid cervical spine, and has been submitted to investigations including an MRI of the cervical spine. This report has been reviewed as has the report provided by Dr Casikar. I note he feels that this injury was probably soft tissue to the right shoulder with incidental cervical spondylosis. I cannot confirm any evidence of pathology which could be attributed to her employment and I am not convinced that she requires any further injections into the shoulder and if it does proceed it is unlikely to be successful.
… if it occurred in the manner described, it was certainly soft tissue and has resolved.
2. Is the description of injury (originally) consistent with findings from imaging diagnostics?
She has been submitted to investigations which include an MRI of the shoulder. I do not believe the radiological findings that have been confirmed on that MRI of 1 July 2014 are consistent with her history of an incident she describes on 19 October 2013. I note that she has been submitted to an MRI under the supervision of Dr Assad, Neurosurgeon, at Macquarie Neurosurgery at Macquarie University on 18 March 2014 which does not confirm any pathology which could be consistent with the incident she described working as a truck driver for Whitehaven Coal.
3. Do you consider that the current symptoms described, fit with the original report of injury?
She has these ongoing symptoms. I cannot determine any organic pathology. She has had the extensive investigations including nerve conduction studies, MRI’s of the cervical spine on 18 March 2014, and an MRI of the shoulder. I do not believe her presentation is consistent with the incident she describes on 19 October 2013.”

In January 2015, the plaintiff took her daughter to Wet’n’Wild at Blacktown. In February 2015, the plaintiff suffered persisting back pain for which she sought treatment from the Scone medical practice.
In March 2015, the plaintiff obtained a qualification in body piercing in order to perform such tasks in the beauty business. In April 2015, the plaintiff dined at a Cantonese Restaurant in Sydney’s Chinatown. In June 2015, the plaintiff visited Sydney and dined there again. While she was there, she watched the studio filming of an episode of a television program called The X Factor. In July 2015, the plaintiff visited Sydney again and also the Durham Hotel at Wingen, which is a town located about a half an hour’s drive from Aberdeen.
In August 2015, the plaintiff flew to Brisbane and spent a week at Deception Bay with a friend. While she was there she went with her friend to the Ikea store at Logan. In October 2015, the plaintiff went to Sydney and visited the Rose Hotel at Chippendale. In December 2015, the plaintiff attended a Keith Urban concert in Sydney.

Further gastric surgery

By February 2016, when the plaintiff consulted Dr Joseph, who was to perform the third of her stomach operations, she complained of persistent sciatic pain.
On 9 February 2016, the plaintiff consulted Dr Anand, a psychiatrist, to whom she had been referred by Dr Mowbray.
On 11 March 2016, the plaintiff obtained a report from Dr Mowbray in support of her application for early release of her superannuation in order to pay for the third of her stomach operations, which involved gastric sleeve surgery. Dr Mowbray stated that she required the operation by reason of a “severe disability”, namely, morbid obesity. Dr Mowbray said that she needed the medical treatment because of her morbid obesity and degenerative spine disease. He also certified that her condition was not related to a workers compensation claim. Dr Mowbray commented in his report that the plaintiff’s obesity led to further health problems such as back pain, diabetes, arthritis in her knees and depression. When the plaintiff saw Dr Mowbray after the operation she told him that her low back pain was more of a problem than her right shoulder.
On 8 April 2016, the plaintiff underwent further investigations. An x-ray of her right shoulder revealed mild acromioclavicular joint space narrowing. An MRI of her right shoulder showed advanced acromioclavicular joint arthrosis with marrow oedema and cystic change. There was a small focus of marrow oedema within the superior glenoid rim in association with an undisplaced superior labral tear. An MRI of her left shoulder showed a superior labral tear, acromioclavicular joint arthrosis without oedema and mild supraspinatus tendinosis with no tear.
On 1 July 2016 Dr Katekar performed nerve conduction studies which again showed no ulnar nerve lesion.
In September 2016, the plaintiff went to the races in Newcastle.

The commencement of proceedings and beyond

On 17 October 2016, the plaintiff’s solicitors filed the statement of claim.
In December 2016, the plaintiff went to Sydney to attend a Keith Urban concert. In February-March 2017, the plaintiff came to Sydney for a few days for the Mardi Gras with her daughter, Jalissa, and Patrick Hocking. It was the first time she had been to the Mardi Gras. They stayed in Hotel Bondi which had a view of the beach. While she was in Sydney she visited a make-up store called Sephora. At that stage she was still running the beauty business. The plaintiff also had breakfast with her mother at a café at Bondi Beach.
In April 2017, the plaintiff flew to Melbourne with two employees from the beauty salon, Paige Smith and Brodie Haydon, to undertake training in impulse laser, a technique which was to be used in the salon.
In May 2017, the plaintiff consulted, Dr Russo, a pain specialist in Newcastle. She identified her main issue as bilateral leg pain from her buttocks to her knees and told him she had been suffering such pain for the last couple of years.
On 31 May 2017, the plaintiff and her husband went to Sydney for a show. They stayed overnight and went to a tapas bar at Darling Harbour. In late August 2017, the plaintiff and her husband went to the Birdsville Track in Queensland. While they were there, they went to the races. They returned in September 2017.
In September 2017 Dr Mowbray referred the plaintiff to a cardiologist. Although cardiovascular disease was not diagnosed, she was found to have a number of risk factors, including extremely high cholesterol, obesity and a family history of heart disease. In 2018, Dr Mowbray found that the plaintiff had postural hypotension. At that time she was under stress relating to her daughter, as well as her mother, who was diagnosed with dementia in about 2016 and who resides at Calvary Retirement Village, Muswellbrook.
At some point, the plaintiff terminated Jalissa’s employment from the beauty business. It is not clear whether the reason for the termination was that the business was not making enough to cover her wage or whether, as the plaintiff reported to Mark Ravagnani, her occupational expert, in December 2017, Jalissa was already losing interest in the business and wanted to do something else. From mid-2017, the plaintiff started to draw $250 a week from the business. This continued until at least 31 August 2018 when she made her statement.

The fall from the retaining wall in June 2018

In early June 2018, the plaintiff climbed up onto a retaining wall which was on the edge of an embankment to separate her dog which had hold of another dog. As she lost her balance, she fell 1.5m off the retaining wall. As a consequence of the fall she complained of pain in her right hand, right shoulder and left knee and was referred for x-rays of these body parts. The only abnormality reported was that there were “early degenerative changes in the AC [acromioclavicular] joint”.

On 14 September 2018, the plaintiff consulted a chiropractor in Singleton. She identified as her primary complaint neck and shoulder pain which she said arose when she hit a soft spot at work in October 2013. She also identified as a second complaint low back pain which she said began ten years previously (in 2008) and which had resulted in her having to sleep in an electric recliner. She identified scoliosis as being the cause of her low back pain. Immediately prior to, or during the initial session with the chiropractor, the plaintiff identified that she was suffering from the following symptoms: depression, anxiety, headaches and pains in the front of her chest and low back pain. These were not said to be related to the incident at work. She also identified, as related to the incident at work, shoulder pain, arm pain or pins and needles, numbness and hand pain or pins and needles.
The back pain from the fall continued to trouble her. She complained of it to Dr Mowbray when she saw him on 5 December 2018. She continues to obtain chiropractic treatment from a chiropractor in Singleton, which she attributed, as recently as 20 February 2020, to the fall from the retaining wall.

The sale of the business

The business was sold at the end of September 2018 for $40,000. The plaintiff acknowledged that this constituted an appreciable capital gain and that the business had been a busy one.
In December 2018, the plaintiff attended the V8 car races at Eastern Creek as well as another Keith Urban concert in Sydney.
In May 2019, the plaintiff separated from her husband although she continues to live with him in Aberdeen. Her nephew also lives in the house. From time to time Jalissa also lives there, although she mostly lives with Mr Medhurst, the plaintiff’s father.

The grant of the disability pension

On 3 June 2019, the plaintiff applied for a disability pension which was granted and back-dated to the date of her application.
The plaintiff enjoys fishing and continues to go on fishing trips. At times she does not fish but can steer the boat. She cannot load the boat onto the trailer. She can drive to the local towns of Muswellbrook, which is about 14km away from Aberdeen where she lives, Scone which is about 15km from Aberdeen and Singleton, which takes about 50 minutes to drive.
She has gone on various trips, including a driving holiday to the Northern Territory. She and her husband drove a caravan to Borroloola, where they stayed for a week before returning home. She has travelled to Deception Bay in Queensland to visit friends at least twice since the incident, including for Christmas 2018. Other trips have been referred to in the narrative set out above.
At the time of the hearing, the plaintiff said that she was in constant pain in her shoulder and through to her back. She said that she had no sensory feeling in the outside of her arm but some feeling on the inner part of her arm. She experienced pins and needles in two fingers. She had constant stinging in the base of her thumb. Pain radiates from her fingers and travels up her arm to her shoulder.
The plaintiff takes several types of medication daily, including Endone and Jurnista, which are both narcotics, as well as Prozac, Gabapentin and sometimes Valium for anxiety. When asked to describe the difference between the medication the plaintiff was taking before the incident with that which she took after, she said that in about April or May of 2014, her pain medication increased. The only active treatment she presently receives for her shoulder condition is “dry needling” with acupuncture needles which affords temporary relief.
The plaintiff said that she has difficulty lifting, peeling vegetables and cutting hard vegetables, such as potatoes. She said she has trouble gripping things, like a coffee cup. She said that in the two years before the hearing, her condition has become slightly worse. However, she can cook for herself and her husband. She can also load and unload the dishwasher. She can load a washing machine and hang clothes on the line or on a clothes horse. She has difficulty mopping and vacuuming.
The plaintiff admitted that she could do light administrative part-time work but said that she had not applied for any jobs as there was none available although she said that she had been looking. I consider it to be telling that the plaintiff has not even applied for work since she sold the beauty salon, notwithstanding her admitted capacity.

The expert evidence

The medical evidence

Both parties have tendered a significant amount of expert evidence. What is particularly noteworthy about the medical reports is that the histories given by the plaintiff over time do not correspond with her initial history. These matters have already been referred to above. Further, there are substantial discrepancies between her description of her activities to such doctors and admissions she made in the proceedings. For example, she told Dr Fearnside, to whom she was referred by her solicitors, on 22 May 2020 that she did not drive. This does not accord with her admissions in the proceedings that she drives from her home in Aberdeen to the local towns of Singleton, Muswellbrook and Scone to shop, socialise with friends at cafés or at the cinema and go to medical appointments. While the strictness of the proposition that the plaintiff was required to prove the truth of the history given to doctors (established by Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65) was ameliorated by Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 884, it is still necessary for the plaintiff to prove that the basis for the expert opinion substantially correlates with the facts. The plaintiff has failed to do so in the present case.
In so far as the medical experts purport to express conclusions about the effect of the incident on 19 October 2013, their conclusions appear to be based on the history of an immediate onset of symptoms following a jarring in her cabin produced by an irregularity in the road surface. For the reasons given above this history has not been established. While the plaintiff has some pathology in her right shoulder, the cause is far from clear, particularly as the plaintiff also has pathology in her left shoulder. Dr Fearnside ventured, in a report dated 2 July 2020, that he agreed with Dr Cass’s description that the plaintiff had “chronic regional pain syndrome”. The opinion of Dr Casikar expressed in his most recent report dated 30 July 2020 was that she did not meet the criteria for that description. He said that “merely because she complains of pain which is non-verifiable does not necessarily mean that she has chronic regional pain syndrome”. It was, however, common ground between the parties that chronic regional pain syndrome is not a medical diagnosis but rather a description of a constellation of symptoms of which a patient complains. Dr Fearnside and Dr Cass agreed in their joint report that the plaintiff could not do her pre-incident work and that she had a residual capacity for light, part-time administrative work.
Although Dr Casikar’s opinion expressed in his report dated 10 April 2014 that the plaintiff suffered a soft tissue injury to her right shoulder is based on the history of onset of symptoms, I am nonetheless disposed to accept it because at least it accounts for the symptoms described by the plaintiff. I am not satisfied that the tear in the right shoulder which was detected on investigation can be attributed to the incident on 19 October 2013. I am satisfied that any soft tissue injury sustained on 19 October 2013 had resolved by 10 September 2014 when she was examined by Dr Watson, whose findings and opinions I accept.
To the extent to which others have ventured diagnoses and opinions which differ from Dr Watson’s, they are based on an acceptance of the plaintiff’s continuing subjective complaints. I do not accept the complaints to be accurate in the sense that the various health and psychological problems which the plaintiff has experienced may lead her to feel pain more keenly and to infer a causal link between her present symptoms and her employment when such a link has not been established to the requisite standard.

The expert liability evidence

During the course of the hearing I rejected both reports of Professor Hebblewhite and the supplementary report of Mr Wagstaffe dated 23 June 2020. My reasons for that ruling follow. Section 79 of the Evidence Act 1995 (NSW) allows opinion evidence to be given based on a person’s training, study or experience. Thus, it is necessary for the proponent of opinion evidence to establish both that the witness has specialised knowledge based on his or her training, study or experience and that the opinion is wholly or substantially based on that training, study or experience: see the discussion in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [32]-[37].
Both experts purported to opine on the effect of data which the defendant obtained from WesTrac, the supplier and manufacturer of the 793 dump truck which the plaintiff was driving on 19 October 2013. The data was derived from the Vital Information Management System (VIMS) which is fitted to each vehicle and records the movement of the vehicle and the loads it bears.
Mr Wagstaffe identified the material on which his report was based. This material included statements by Nigel Wood, Justin Lawrence, Jeremy Taylor and Bradley Taylor. Of these four, only Justin Lawrence gave evidence. Although he was called by the defendant, the statement on which Mr Wagstaffe based his opinion was not tendered. Accordingly, the factual substratum of Mr Wagstaffe’s opinion was not established in the evidence. Mr Wagstaffe extracted passages from documents which had been obtained by others from WesTrac. He also extracted passages from documents which he obtained on the internet with a view to explaining the significance of the WesTrac data and what could be drawn from the readings obtained from VIMS for the 793. The substratum of Mr Wagstaffe’s opinion was either not proved or not identified. He appears to have conducted his own research on the internet into the VIMS and purported to express conclusions based on his alleged “professional experience”. It became evident in the course of the voir dire in respect of Mr Wagstaffe that none of the documents on which he relied had been obtained from WesTrac. He had had recourse only to those WesTrac documents which were publicly available. Mr Wagstaffe accepted that he had no experience with the VIMS in the 793s and was required to undertake research to familiarise himself with the particular settings and the way in which it worked.
The supplementary report of Mr Wagstaffe is inadmissible for several reasons. First, he failed to identify with particularity its basis. Secondly, the plaintiff failed to call evidence from the witnesses upon whose statements Mr Wagstaffe relied. Thirdly, Mr Wagstaffe’s expertise in relation to the VIMS in the Caterpillar driven by the plaintiff was derived from publicly available information which he had researched for the purposes of the proceedings. While I accept that he has a general understanding of how such systems work, I do not regard his general experience as being sufficient to support the opinions which he purported to give: Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111 at 119 (Dixon CJ, Kitto and Taylor JJ); [1956] HCA 73. The evidence established that he had analysed different data from a different system in a different vehicle. It was not established that there was a sufficient similarity between that vehicle and the relevant vehicle to qualify Mr Wagstaffe to give such opinions in the present case.
Professor Hebblewhite accepted that he had no familiarity with the 793. To that end he spoke to a number of people at WesTrac and obtained from them explanations as to the features of VIMS, including how the data was sourced and what it was designed to measure and record. Not only have these descriptions and explanations not been proved but I am not persuaded that Professor Hebblewhite’s opinion is based wholly or substantially on his own expert knowledge: Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-744 (Heydon JA); [2001] NSWCA 305.
In these circumstances, I rejected the whole of Professor Hebblewhite’s second report. The tender of first report was rejected because it did not contain any expert opinion evidence but comprised solely commentary and recitation from other sources. I ruled that it was to be read only as assumptions or as a submission. Although Professor Hebblewhite is undoubtedly qualified by training, study and experience to express expert opinions, he did not purport to do so in the first report.
I confirm that the joint report of Professor Hebblewhite and Mr Wagstaffe dated 7 February 2020 was admitted into evidence. This report related to matters other than the VIMS.

Heads of damage

Non-economic loss

At best, the plaintiff suffered a soft tissue injury to her right shoulder, which could be expected to have resolved, according to Dr Casikar, within about six months. This is broadly consistent with the findings of Dr Watson on 10 September 2014 extracted above that there was no ongoing relevant pathology that warranted investigation or treatment.
I assess non-economic loss at 15% of the agreed maximum of $392,600. This figure is below the threshold for an award of damages for non-economic loss under s 151G(4) of the Workers Compensation Act as it applies in the present case. Accordingly, there will be no award for non-economic loss.

Economic loss

The plaintiff is only entitled to an award for economic loss if she has suffered a serious injury. I am not satisfied that she has suffered a serious injury as a consequence of what occurred on 19 October 2013 at Werris Creek. She suffered no more than a soft tissue injury which had resolved by 10 September 2014. Sustaining the injury made little material difference to the plaintiff’s overall wellbeing and capacity, which was dominated by pre-existing psychological issues and spinal problems unrelated to the accident.
However, in case a different view of this assessment is taken, I propose to make findings of fact sufficient for an award of economic loss.
But for the injury sustained on 19 October 2013, I am satisfied that the plaintiff would probably have resigned from her employment with the defendant in 2014 in any event when her husband purchased the beauty business to provide employment for her daughter. It is of note that she and her husband had both been prepared to give up their jobs in the mining industry in 2009 when they purchased a nursery and pet supply business in Scone. When the business was purchased in 2014, the plaintiff would have had to give up work at the mines to run it because her daughter was then only 15 years old. I consider that the plaintiff would have continued to run that business until at least September 2018, when she in fact sold it. By that time, she had fallen from the retaining wall and her back problems had been exacerbated by the injuries she sustained in that fall. She would have been disqualified from returning to the mining industry in any event by reason of the condition of her back and neck. To the extent to which the defendant bore an onus of establishing this, it has discharged it: see Watts v Rake (1960) 108 CLR 158; [1960] HCA 58. Other non-compensable issues with her spine and mobility, as well as her anxiety, would have left her fit for the light, administrative duties for which she is currently fit.
On this basis, the plaintiff would (if the injury had been serious) be entitled to an award of economic loss until the earlier of her recovering from the soft tissue injury or when she began working in the beauty business. The evidence does not reveal when in 2014 the plaintiff’s husband bought the business. In these circumstances, I am prepared to accept that she would, but for the incident on 19 October 2013, have continued to work in the mine until the end of 2014. On the basis of Dr Watson’s examination of the plaintiff on 10 September 2014, she had recovered from any soft tissue injury by that date.
On this basis she is entitled to an award of past economic loss of $68,831.02, being the sum of $51,782.12 (the agreed amount for the period from 3 January 2014 to 30 June 2014) and $17,048.90 (the agreed weekly amount for the ten-week period from 1 July 2014 to 10 September 2014). It was agreed that the amount for superannuation was 12% of this sum, being $8,259.72.
An assessment on that basis would reflect a somewhat greater recovery time for the soft tissue injury than allowed by Dr Casikar (which was that it could be expected to have resolved within six months, namely, by 10 April 2014). I am satisfied that, after 10 September 2014, the plaintiff, though fit to return to her pre-injury work, would not have done so because she wanted to dedicate herself to the beauty business for her daughter’s sake.
For the reasons given above, I am not satisfied that any award for future economic loss should be calculated by reference to a weekly figure. This is a case where a small buffer is appropriate to take account of any residual effects of the soft tissue shoulder injury. An award of $25,000, including superannuation would be appropriate.

Out-of-pocket expenses

The parties have agreed on an amount for past out-of-pocket expenses of $30,969.
The plaintiff claims an amount of $24,900 for future out-of-pocket expenses. I am not satisfied that any award should be made for future out-of-pocket expenses. I am not satisfied that any of the pain medication which the plaintiff is taking is required as a result of what happened on 19 October 2013. Nor is any further need for treatment causally related to the incident.

Past and future care

I am satisfied that the plaintiff’s soft tissue shoulder injury had healed by 10 September 2014 and that any continuing need for care is attributable to other health issues unrelated to the injury, including her difficulties with her lower back. From the time of the injury to that period she was able to drive, shop and cook and wash both dishes and clothes. However, her shoulder injury would have affected her capacity to clean. On this basis I will allow a modest amount for past care, calculated on the basis of three hours a week for the period from 19 October 2013 to 10 September 2014. After that time, any need for care arose by reason of other, non-compensable health problems, such as her back pain. On the basis of an hourly figure of $28 (which is derived from Ms Barbara’s report), the figure for past care is $3,948 (being 47 x $28 x 3), say $4,000.

Fox v Wood

The Fox v Wood component has been agreed at $13,070.

Past workers compensation payments

The parties agree that the defendant has paid to the plaintiff a total of $75,271, for which allowance must be made as a credit to the defendant in any award of damages.

Costs

I have not heard the parties on costs. Accordingly, I will make provision for the parties to apply for a different order if there is any reason why costs ought not follow the event in accordance with the general rule: Uniform Civil Procedure Rules 2005 (NSW), r 42.1 or if they ought be ordered on other than the ordinary basis.

Orders

For the reasons given above, I make the following orders:

Judgment for the defendant.

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.

**********

Decision last updated: 19 August 2020

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