Addison v BHP Billiton Iron Ore Pty Ltd

The Proceedings

1. On about 27 January 2016, Mr Addison was employed by Linfox Australia Proprietary Limited ("Linfox"). Linfox directed him to work in Western Australia. On that day he was driving a "triple round train fuel tanker" on a mine site operated by BHPB near Newman in the Pilbara region of Western Australia. Newman is almost 1,200 kilometres from Perth.
2. In an affidavit read on this motion, Mr Addison states that, while driving the tanker, he hit a "wash out" causing him to be "belted up and down aggressively in the cabin". He says he suffered compound fractures to his thoracic vertebrae. He said he was hospitalised in Newman, flown to Royal Perth Hospital, and then eventually went back to Port Headland. He said that, while in Port Headland, he was diagnosed with post traumatic stress disorder ("PTSD"). In March 2016, he returned to his home in Wagga Wagga.
3. On 19 May 2017, Mr Addison filed his statement of claim. In that claim, he pleads a cause of action in negligence and for breach of a statutory duty.
4. In relation to the latter, the statement of claim appears to assert that a breach of ss 12 and 13 of the Mines Safety and Inspection Act 1994 (WA) occurred on 27 March 2016, specifically there was a failure to take practical measures to ensure the mine and the means of access to and egress from it did not expose Mr Addison to an unreasonable hazard. The statement of claim pleads that such a breach is sufficient to create a "right of action" in its own right.
5. The statement of claim also pleads that s 5 of the Occupiers' Liability Act 1985 (WA) imposed an obligation on BHPB not to expose Mr Addison to dangers arising from the state of the mine site. It is not clear whether it is pleaded that a breach of this is actionable per se, or whether it is only a matter that informs the content of the duty of care.
6. Fourteen particulars of negligence are pleaded in the statement of claim. The bulk of them are expressed in very general terms. They will no doubt be the subject of a request for particulars. However, some of them are reasonably specific. They appear to have been drafted by reference to the findings of an internal investigation that was apparently conducted by BHPB or on its behalf into Mr Addison's accident which I will return to.
7. Thus the particulars include an allegation that the relevant road should have been closed, and Mr Addison should have been notified accordingly. Particular of negligence (M) in the statement of claim pleads that BHPB was negligent in that "having closed the roadway in one direction, it allowed the roadway in the direction of the plaintiff's travel to remain open when they knew the roadway was unsafe for travel".

Defendant's Evidence on the Motion

1. BHPB read three affidavits on the motion, two from the solicitor who had carriage of the matter in New South Wales, Scott Hay, and one from the solicitor who will assume carriage of the matter if the proceedings are transferred to Western Australia, Matthew Thickett.
2. In his first affidavit, Mr Hay identified various issues upon which BHPB will or at least may adduce evidence, particularly if quantum and liability continue to be disputed. These issues not only concern the circumstances of the accident, but also the approach to the supervision of Mr Addison by Linfox.
3. In his second affidavit, Mr Hay states that his client has confirmed to him that all of the witnesses on factual matters are employed by BHPB and are located in Newman. He also states that BHPB will adduce evidence from Mr Addison's supervisors at Linfox who are located in Wedgefield, Western Australia. Wedgefield is also in the Pilbara region. It is approximately 1,600 kilometres from Perth.
4. Mr Hay also identifies various categories of experts whom it will be most likely necessary for BHPB to engage, specifically a civil engineering liability expert, an accident reconstruction engineering liability expert, a safety and management liability expert, and an expert in the labour market of Western Australia to ascertain Mr Addison's prospects of future employment in that State. He states that the experts he has identified as being suitable and whom he anticipates his client will instruct him to brief are based in Western Australia. The only matter at this point that I would note is that an enquiry into Mr Addison's working capacity would not appear to be confined to Western Australia.
5. Mr Hay also states that, in his experience, it may be that a court will require a view of the site of the accident. He contends that would be more easily facilitated if the matter was being heard by a Western Australia court.
6. Mr Hay states that enquiries of the Supreme Court of Western Australia have indicated that the delays in that Court in obtaining a hearing are relatively short. Thus, based on those enquiries, he states that if this matter was ready for hearing now, then a trial date in late 2017 or early 2018 could be obtained. At this point, I note that, on the same scenario, ie that is that the matter was theoretically ready for hearing now, a trial of five days could be obtained in this Court in April 2018. Overall, I do not regard the difference between the hypothetical trial date in the Western Australia Supreme Court and this Court as material. Mr Hay also stated in his affidavit that the daily hearing fees in the Western Australia Supreme Court are lower than in this Court, although the relevant figures were not provided.
7. To an extent this was all superseded by Mr Thickett's affidavit. He said that, if the matter was transferred to the Western Australia Supreme Court, then his client would apply to then transfer the proceedings to the District Court of Western Australia. It was not suggested that there was any jurisdictional impediment to that occurring.
8. Mr Thickett refers to the existence of various rules and practice directions of the District Court of Western Australia concerning discovery, interrogatories, expedition and the like. He states that the District Court of Western Australia hears a number of cases arising out of labour hire arrangements that occur in remote mining sites in Western Australia, and that it habitually applies the legislation that I have already referred to, as well as the Workers Compensation and Injury Management Act 1981 (WA) and the Law Reform (Contributory Negligence and Tort Feasors' Contribution) Act 1947 (WA). Absent Mr Thickett's affidavit, this Court would have proceeded on the basis that the District Court had particular rules and procedures dealing with those matters, the experience referred to and regularly applied that legislation.
9. One specific matter raised by Mr Thickett in his affidavit is the fact that in Western Australia general damages in a case such as these are not assessed by reference to any particular scale. In particular, the determination of general damages does not involve an assessment of the relativities that a particular plaintiff's injuries bear to a most serious case. Instead, it appears that they are determined by the common law.

The plaintiff's evidence on the application

1. On behalf Mr Addison, an affidavit was read from Peter Uniacke. Mr Uniacke is based in Albury. He is the practice group leader of the Albury and Wagga Wagga practices of Slater & Gordon who act for Mr Addison. The solicitor on the record for Mr Addison is Donald Cameron who works in the Albury office. He is currently temporarily absent from that office.
2. Annexed to Mr Uniacke's affidavit is a copy of a report of the internal investigation into Mr Addison's accident that I previously referred to. Based at least on Mr Uniacke's reading of that report, he concludes that the document: "… suggests the cause of the accident was: (a) Area owner did not exercise control on communicating OHP2 access road impact by rain/flood; (b) The roadway had been closed and witches hats placed on the eastern end of the OHP2 access road, but the Defendant had not accessed and placed witches hats at the western end of the OHP2 access road because of the water over the road; (c) Processing Production Supervisor had not raised the road closure with any parties".
3. The implication of this, so it is said, is that the Court should proceed on the basis that it is unlikely that there will be a dispute about liability, a matter I will return to.
4. Also annexed to Mr Uniacke's affidavits were reports from a psychiatrist based in Sydney, Dr Diamond; an orthopaedic surgeon based in Melbourne; and an occupational therapist whose place of work was not listed, but who certainly visited Mr Addison in Wagga Wagga.
5. Mr Uniacke also refers to the expense of having to fly to Perth if they were required to give evidence, especially if time was not set aside for their evidence to be taken on a particular day. Mr Uniacke contends that that cost is likely to be less if they are only required to be called to give evidence in Sydney.
6. Mr Uniacke also noted that Mr Addison's treating medical practitioners, specifically his general practitioner, his psychologist and psychiatrist, are based in Wagga Wagga. Numerous reports from the Wagga Wagga based psychiatrist are annexed to Mr Uniacke's affidavit. According to Mr Uniacke, Mr Addison consults with his GP at least once a month and his psychologist once a fortnight.
7. Mr Uniacke contends that no significant extra cost is likely to be incurred if the matter is dealt with in the Supreme Court of New South Wales compared with the Western Australia Supreme Court or, for that matter, the District Court of Western Australia. He states that, if it was determined that a view was to occur at the mine site in Newman, then the only real additional cost would be the extra airfare from Sydney to Perth because, in any event, costs will be incurred in travelling from Perth to Newman.
8. Mr Uniacke refers to the good relationship that Mr Addison has built up with Mr Cameron. Mr Uniacke stated that, when Mr Cameron and his law clerk had met with Mr Addison, he has been accompanied and supported by a family member and is otherwise emotionally tearful and forgetful.
9. Dr Diamond concluded that Mr Addison displays clinical signs which support a diagnosis of PTSD and he experiences "persistent elevated arousal state with associated clinical features of fear, anxiety and irritability".
10. Dr Diamond stated that he experiences "persistent vulnerability and associated distress because of the loss of function and persistence of intrusive symptoms", and that he has "experienced subjective cognitive impairment because of his elevated state of arousal resulting in difficulty with memory, concentration and focus".
11. The reports from Mr Addison's Wagga Wagga based treating psychiatrist are consistent with this. One report dated 24 May 2016 refers to Mr Addison as "teary, angry and visibly tired/exhausted". He is described as having paced around the room during the consultation and being "depressed and anxious in his mood/effect". Mr Uniacke states that, if the proceedings were transferred to Western Australia, then taking instructions on the telephone from Mr Addison would be difficult, given his psychiatric condition.
12. He also refers to Mr Addison's apprehension that if he has to travel to Perth he would be away from his treating health providers for an extended period of time. He also recounts his understanding that Mr Addison is of limited means and may have difficulty paying for accommodation and travel.
13. I have already referred to Mr Addison's affidavit which provides a brief description of the accident and its aftermath. He describes his condition in terms that are consistent with what I have summarised from the other evidence.
14. In relation to his ability to travel from Perth, he states as follows: "I also suffer with claustrophobia for which I take medication. Since the accident I have been able to endure a one hour flight from Wagga Wagga to Sydney with the use of medication and the knowledge that it is a [short] flight. If I was required to fly from Sydney to Perth, this would cause me extreme distress, and I would not be able to travel alone. All of my family reside in Wagga Wagga, New South Wales, and I rely heavily on them for support both emotionally and daily care needs. Due to their work commitments, they would not be able to travel and stay with me for any extended period of time, if my court case were to be heard in Perth."
15. Mr Addison reiterates that he has a good relationship with his solicitor, and states that he would struggle to understand the proceedings without face to face contact. He states that his anxiety would be heightened if he is required to deal with a solicitor on the other side of the country.
16. In view of the oral submissions, it is appropriate to address two aspects of the evidence of Mr Addison and of the other witnesses concerning his condition at this point. First, in the event that the proceedings are transferred to Western Australia, it is to be expected that Mr Addison will maintain his relationship with Mr Cameron. Instead it will be Mr Cameron who will deal with solicitors based in Western Australia who will have the day to day conduct of the proceedings in the Western Australia court.
17. Second, counsel for BHPB, Mr Talintyre, refer to parts of Dr Diamond's report which described Mr Addison's claustrophobia as a pre-existing condition which at one point had affected his ability to fly. Dr Diamond stated that that difficulty was overcome, at that time at least, by placing Mr Addison at the front of his plane. This must be so because at the time of the accident Mr Addison was working in Newman on a "fly in fly out" basis.
18. Mr Talintyre submitted that a proper reading of Dr Diamond's report suggested that Mr Addison does not presently have any issue with flying. He referred to one part of Dr Diamond's report in which he stated: "I note that [Mr Addison] was not avoidant of flying and that he was able to do so without experiencing further symptoms".
19. I do not accept that this part of Dr Diamond's report is a reference to his functioning after the accident. Considered in context, the passage relied on by Mr Talintyre was part of Dr Diamond's explanation of the significance of the contribution of the accident to Mr Addison's current psychiatric state. Dr Diamond was explaining that, until the accident, the adverse effect of Mr Addison's claustrophobia on his ability to travel had been avoided. In fact, in relation to travelling, his treating psychiatrist stated in her report of 19 April 2016 that, because of his back pain and PTSD symptoms, it is difficult for Mr Addison to undertake travel to Sydney.
20. In the end result, I will proceed on the basis that air travel is difficult for Mr Addison in the way he states, and that the longer the trip, the more difficult that travel becomes. I will proceed on the basis that Mr Addison's evidence concerning the effect of travelling to Perth should be accepted.

Submissions and Consideration

1. Very detailed written submissions were provided by Mr Talintyre and senior counsel for Mr Addison, Mr Dooley. They were supplemented by well focused oral submissions. The effect of the parties' submissions is best addressed by considering three interrelated topics which ultimately bear upon the assessment of whether it "appears" to the Court that it is "otherwise in the interests of justice" that the matter either stay in the New South Wales Supreme Court or be transferred to Western Australia, namely: the relative cost and expense of conducting a trial in Western Australia compared with New South Wales; the suggested differences between the conduct of the proceedings in Western Australia compared with New South Wales, including the application of substantive law; and the matters personal to Mr Addison that are suggested would significantly impede his ability to pursue his claim in Western Australia compared with New South Wales.
2. In relation to the first matter, I have described the affidavit evidence concerning the location of the potential witnesses and the logistical difficulties and extra cost that might be associated with them having to travel to either Perth or to Sydney or, if necessary, to Newman.
3. In relation to so much of the case as concerns liability, as noted, it was contended on behalf of Mr Addison that, in light of the internal investigation report that was undertaken, it is unlikely that there will be a substantial dispute about liability. It was also contended that, even if there was, the relevant lay witnesses are located in The Pilbara, such that the relevant comparison that must be undertaken is between the cost of flying them from The Pilbara to Sydney via Perth, compared with the cost of flying them from The Pilbara to Perth. It was submitted that, in the scheme of things, the extra cost of the former is relatively marginal. The same submission was made in relation to the suggestion by BHPB that it would retain experts. As to undertaking any view, it was submitted on behalf of Mr Addison that there was really only a bare possibility that that would be required. It was also submitted that the relevant comparison involved a consideration of what the extra cost of travelling from Sydney to Perth would be, in that there would always be significant costs incurred travelling from Perth to The Pilbara.
4. Mr Talintyre contended that, given the additional cost of litigating this aspect of the proceedings in Sydney are likely to be considerable, especially compared with what he said would be the relatively small additional cost of the plaintiff travelling to Perth for the trial.
5. In relation to quantum, the parties' position appears to be very much the reverse. Mr Addison, as well as his treating doctors, are based in Wagga Wagga and, other than his orthopaedic surgeon, at least his major other medical witnesses are based in Sydney.
6. Mr Talintyre submitted that it is unlikely that the treating doctors would be required if the proceedings were heard in Western Australia and, in any event, arrangements could be made for them to give evidence by video link, a facility that could easily be applied to the liability witnesses that BHPB may wish to call. As at the present, it does not appear that BHPB have engaged any doctors or occupational therapists.
7. I am proceeding on the basis that, even if the proceedings were transferred to Perth, BHPB would be most likely to retain doctors and an occupational therapist in Melbourne or Sydney. This is so given the difficulties associated with Mr Addison travelling to Perth to meet them and that, in the case of an occupational therapist, it seems inevitable that they would have to travel to Mr Addison and see his home. Thus, it would seem the bulk of the witnesses on quantum are likely to be based in New South Wales or, the very least, the Eastern States.
8. As I have said, Mr Dooley submitted that in the end result there was unlikely to be a real debate about liability, so that when one comes to consider the logistical issues involved in the trial it should be undertaken based on a likelihood that the bulk of the witnesses that are required would be based in New South Wales.
9. While the internal report does seem to advance Mr Addison's case in a promising direction, I am certainly not in a position to conclude that liability is unlikely to be seriously in dispute. Further, as Mr Talintyre submitted, there would still be the necessity to consider the position of Linfox and a potential for any plea of contributory negligence, all of which would require some investigation into the precise circumstances of the accident.
10. Insofar as the parties refer to the possibility of a view, all I can really say at this point is that, on balance, it is unlikely that a court will undertake a view, given the logistical difficulties involved, and the loss of court time that would cause in the context of a hearing overall.
11. I return to the assessment that I have already suggested, namely that the bulk of the liability witnesses are likely to be based in Western Australia, but the bulk of the quantum witnesses are likely to be based in New South Wales and possibly Victoria. The end result of this analysis is that, if there is a trial in Sydney, it appears to have the potential to require significant extra expense to BHPB compared to a trial in Perth. However, a trial in Perth certainly has the potential to result in a reasonable level of extra cost and expense to Mr Addison compared to a trial in Sydney. I expect the extra cost of a trial in Sydney for BHPB is likely to be greater than the extra cost of a trial in Perth for Mr Addison. However, Mr Addison and, I suspect, his solicitors, have a lesser capacity to absorb those costs. Overall, in considering these logistical matters, I consider that they are neutral as to any assessment as to where the interests of justice warrant the matter being heard.
12. I have already referred to the significance attached by the decision in Schultz to the forum in which a tort was being litigated being the same as the place of the tort. That consideration was very much at the forefront of Mr Talintyre's submissions. He placed great emphasis on the desirability, even the necessity, of a Western Australian court opining on the operation of Western Australian statutes and their application to a tort that was allegedly committed in Western Australia.
13. While it could be accepted that this Court can and does routinely undertake such a function in relation to causes of action that arise in other States (see Robinson v Vogelsang (No 2) [2015] NSWSC 1942), there is considerable force in Mr Talintyre's submissions. I give this matter great weight.
14. As previously noted, one matter affecting the significance of this factor is the desirability of avoiding arguments over whether some aspect of a law of the forum is procedural or substantive and, thus, does or does not have to be applied to the determination of the matter by the operation of choice of law rules. In BHP Billiton v Harwood [2011] NSWSC 680, Hoeben J, as his Honour then was, adverted to the inevitability of argument taking place over whether various provisions of the Dust Diseases Tribunal Act 1989 were procedural or substantive, if a tort that took place in South Australia was litigated in the Dust Diseases Tribunal (at [29] and [61]). However, in this case it has not been suggested that any aspect of the Civil Procedure Act 2005 or the Evidence Act 1995 is even remotely capable of giving rise to such an argument.
15. As I stated, Mr Thickett referred to the fact that, unlike this State, in Western Australia, assessments of general damages are undertaken in accordance with the common law.
16. In his submissions, Mr Talintyre submitted that a matter warranting the transfer of these proceedings is the fact that the Courts of Western Australia are likely to be more experienced in making such assessments, given that they, so it is submitted, are passing into history in this State.
17. I do not consider that this is a matter that warrants much weight in an assessment of the interests of justice. The process of an assessment of general damages by reference to the common law is an easier task than one which requires an assessment by reference to a most serious case. I do not think that the difference in undertaking the intellectual exercise involved in such an assessment is of much significance at all.
18. In his written submissions, Mr Talintyre also referred to other provisions of the Civil Liability Act 2002 (WA) which are materially different to the Civil Liability Act 2002. Again, I do not consider that advances the matter beyond the statements of general principle in Schultz.
19. As stated, Mr Thickett adverted to various procedures and benefits of conducting the proceedings in the Western Australian District Court. I have absolutely no doubt that that Court would conduct any case that was transferred to it, including this one, with the professionalism and experience that all courts of Western Australia exercise. However, there was nothing specifically identified in Mr Thickett's affidavit about the District Court or its procedures that suggested any particular benefit would accrue to the parties from transferring the matter compared to them being litigated in the Court.
20. For the sake of completeness, I note that an obvious feature of any Western Australian Court is its location in Western Australia, such that, without rehearsing all of the arguments previously referred to, it is in a better position to conduct any view in Newman that is considered appropriate. For the same reason, the Supreme Court of New South Wales is in a better position to accommodate the obligations of the treating doctors and, if necessary, to sit in Wagga if that was required. For those and the reasons already indicated, the location of each court does not take the matter further.
21. In the end result, a consideration of the various differences between the Western Australian courts on the one hand, and the approach that would be adopted by the Courts of this State on the other, does not take the matter further than the general statements of principle articulated in Schultz that I have already accepted and will give significant weight to.
22. There remains to consider the particular matters that Mr Addison says will impede his ability to litigate his personal injury claims in Western Australia. Although he raised a concern about communicating with Western Australian solicitors on the telephone and he expressed a desire to maintain his relationship with Mr Cameron, as I have already explained, I do not accept that that is a real concern because I expect that it will be Mr Cameron who will liaise with those solicitors. However, Mr Addison's concern about the effect on him of having to travel to Western Australia to endure the stresses of the trial and his lack of support when doing so are very real matters to consider.
23. The interests of justice include access to justice. Injured persons are entitled to play an active role in providing instructions concerning the conduct of the trials given that their interests are fundamentally affected by the trial process.
24. Given the psychiatric material and the contents of Mr Addison's affidavit, I am satisfied that there is a significant risk that forcing him to travel to Western Australia to run his trial will significantly impede his ability to instruct his lawyers, provide evidence and otherwise participate in his own case. True it is he may have to come to Sydney to attend court, although this Court may sit in Wagga, however, these are matters of degree. It is my assessment that to make him travel to Perth without the family support he says he needs but will be deprived of is a step too far. Notwithstanding the significance of the desirability of the forum being the same place as the commission of the tort, it "appears" that the interests of justice warrant the matter remaining in this Court.
25. Accordingly, I dismiss the defendant's notice of motion filed 23 August 2017. I order the defendant to pay the plaintiff's costs of the motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 October 2017