D'Herville v Mt Arthur Coal Pty Ltd

Supreme Court of NSW|2020-03-02|Before: Campbell J

Judgment

The plaintiff, Ms D'Herville, claims damages from her employer, Mt Arthur Coal Pty Ltd ("Mt Arthur"), for personal injury received in the course of her employment on 28 March 2013.
Mt Arthur owns, occupies and operates the open-cut coal mine at Bayswater Colliery, Muswellbrook in the Hunter Valley. Ms D'Herville was employed by the defendant as a haul truck operator, driving what I will refer to as an oversized, rigid body model 793D dump truck manufactured by Caterpillar. Ms D'Herville said the truck had a "capacity" of 500 tonnes. Mt Arthur's internal plant number for the truck was 447. Her task was to operate the truck to carry overburden, which was being excavated to expose the coal seam, from the coalfield known as Roxburgh Pit to the Drayton Void Dump within the colliery. The internal roadways are constructed of compacted dirt, rocks and gravel. Ms D'Herville says her accident happened on the Snake Gully Haul Road which is in the pit area near where the excavators were operating.

The work being performed on 28 March 2013

It is well to commence with Ms D'Herville's relevant background. She was born in 1975 and on 28 March 2013 was 38 years of age. She completed year 12 of high school in 1992 and thereafter spent two years undertaking an arts and design course before going on to study graphic design at university. However, she did not graduate. She worked in various occupations, principally in photography and related businesses.
In her early thirties she decided to enter the mining industry, having satisfied herself that work as a dump truck operator was within her physical capacity. To this end, in 2007, she undertook a heavy rigid vehicle driving course in Brisbane and then moved to Western Australia to obtain experience in the mining industry. After working as a forklift operator for three months she obtained dump truck work with a mining company at Kalgoorlie, gaining experience in operating Caterpillar 777, 789 and 793 dump trucks.
She returned to New South Wales in March 2010 and obtained work with a labour hire contractor supplying skilled labour to various BHP entities. After working on a labour hire basis for about six months she secured full-time employment in September 2010 with Mt Arthur. According to the evidence of Ms Kimberley Ohmsen, a qualified Open Cut Examiner, who had supervised Ms D'Herville in 2013, she was a competent operator whose "work performance was good" (227.25T) when she was at work. In the course of her work for Mt Arthur she drove not only the model 793, but also the Caterpillar 789, trucks and the larger Liebherr T282B dump trucks.
Depending upon her roster, Ms D'Herville hauled overburden or coal. She worked a seven-day fortnight with rotating day and night shifts. Each shift was of 12 hours and 40 minutes duration. She was not qualified to operate the excavators, bulldozers and graders also used in the mining work on which she was engaged.
On 27 March 2013 Ms D'Herville commenced her rostered night shift at 6:30 pm. After the usual pre-shift meeting presided over by Ms Ohmsen, who was then relieving as the "Production 7" supervisor, her truck was allocated to haul overburden from the Roxburgh Pit area to the dump, a round trip of about 45 minutes. The part of the mine involved is depicted in the satellite photograph appearing below as copied from paragraph [51] of Ms D'Herville's evidentiary statement of 12 July 2018 (Exhibit CB 4): The red X marks where Ms D'Herville said the accident happened, the broken yellow line depicts the route from Roxburgh Pit to Drayton Void Dump and the blue broken line depicts that part of the route referred to as the Snake Gully Haul Road.
The mining in Roxburgh Pit was only part of the operations at Mt Arthur during that shift. Ms D'Herville's evidence was that about 100 dump trucks were operating in different parts of the colliery, 24 of them in the Roxburgh Pit area.
An unladen truck enters Roxburgh Pit by descending the Snake Gully Road which follows the "high wall" excavated and exposed by the limits of previous mining operations to the base of the excavation where current work is carried out. As the satellite photograph indicates, as the truck enters the pit, it descends turning right more or less perpendicularly at the foot of the descent into the area where loading takes place.
I have set out a second photograph copied from paragraph 53 of Exhibit CB 4. As the captions indicate, this is a "simulated re-enactment" of the scene of Ms D'Herville's injury admitted without objection. I am attaching it now for the purpose of illustrating the scene. The image consists of a blown-up version of the same satellite photograph, on which Ms D'Herville, who has skills as a photographer, has superimposed or 'photoshopped' other images to illustrate her evidence. As before, the broken blue line follows the path of the Snake Gully Haul Road.
As the legend indicates, there were three excavators working in this part of the Roxburgh Pit during Ms D'Herville's shift, numbered 207, 219 and 208 respectively as one rounded the bend and approached the end of the road. Each excavator was located in an elevated position referred to as a work bench, I infer for ease of loading. Each excavator was served by a bulldozer to clear the work bench and truck loading area of spillage and other rubble and to move earth as necessary in the vicinity of the work bench. Ms D'Herville has added images representing the excavators, bulldozers, and truck movements. She has represented a continuous serious of truck movements consistent with her evidence and not disputed by any other witness. However, I did not understand her to say that the number of trucks depicted was necessarily accurate. As can be seen, each of the three-work bench and loading areas is depicted by a green plus sign within a green circle. This indicates that in normal operations, the bulldozer works in close proximity to and in conjunction with the excavator.
The work benches are located at the end of an access road intersecting with Snake Gully Haul Road. Each access road is 50 metres or more in length. At the work bench end of the access road is a turning circle facilitating the entry of unladen, and the exit of laden trucks, to the loading area. These depictions have been created on the image by Ms D'Herville who was cross-examined about whether in fact the access roads were more perpendicular to the haul road. To my mind, nothing turns on the difference, and I consider it unnecessary to make any finding one way or another. As I have said, the image is illustrative.
The evidence about the dimensions of Ms D'Herville's Model 793D dump truck was imprecise. Ms D'Herville's evidence was that the truck was 12 metres in length and 6 metres in height. She agreed that, what I took to be the complete wheel and hydraulic tyre assembly was 2.5 metres in diameter and 1.5 metres in width across the face of the tread. There was no direct evidence of the overall width of the vehicle but Ms D'Herville said that the haul road was "just a little wider than the two widths of the trucks, so 15 to 18 metres wide as the trucks are …" (47.25T) before she was cut-off by the next question. Ms Ohmsen said the haul road was "2.5 times the width" of the truck (232.2T). This is standard in the mine (231.41T). Taking the lower end of Ms D'Herville's range, which was not challenged, of 15 metres, the width of her dump truck would have been about 6 metres. There is a photograph of a Caterpillar 793D and the Liebherr T282B at Court Book 505 which is an extract from an expert's report which was not tendered. The photograph was not tendered either although other photographs from the report were. However, the photograph was used in evidence without objection: (44.35 - 45.25T).
As the haul roads within the mine are essentially gravel roads, they are subject to significant wear and tear. A number of factors contribute to this. They include: first, the continuous movement of a large number of heavily laden, very large trucks, 24 hours per day and 7 days per week; secondly, the less frequent movement of other plant and vehicles; thirdly, the effects of weather; and fourthly, for the stretches of road adjacent to or below high wall areas, seepage. The various manifestations of wear suggested by the evidence include potholing, laminations and the development of soft-spot areas due to inundation by rain and ground water. From the evidence I understood laminations to be undulations or corrugations in the surface of the road (67.25-43T).
Mt Arthur's system for maintaining and repairing the road is not impugned, as I have said, nor is any case in negligence made based upon systemic failures. I repeat, the case is based upon alleged casual act of negligence of an unidentified bulldozer operator. However, it is relevant to record the ongoing wear of the condition of the haul roads was well recognised as a potential hazard. The precautions adopted to manage and control the hazard included: inspection by the open-cut examiner, or supervisor, of each crew before the start of the shift; imparting information to the crew about road conditions at the pre-shift meeting; reminding drivers of the need to drive to conditions; regular inspection by supervisory staff throughout the shift at intervals of three to four hours and the dissemination of any new information obtained at such inspections by radio; the fitting of radios in every truck and other plant to enable operators to report issues of which they have become aware during the shift over an open channel; monitoring of the open channel by the supervisor; the deployment of a number of graders (Exhibit C) to patrol the haul road and carry out ongoing maintenance throughout each shift; and repairing "soft spots" by the process of "boxing out". A grader would be called to attend any location of concern to carry out maintenance.
Ms D'Herville said that there were usually six graders patrolling the haul roads during a shift. She noticed their absence in the hours leading up to her accident and the roads became rougher. From the photograph which is Exhibit C, a grader may be hard to miss. The absence of graders is not part of the case in negligence and the matter was not further explored in evidence.

Boxing out work

Boxing out involves excavation of a soft or wet area of a haul road down to a firm surface and the replacement of the excavated material with "firm fill" (Evidentiary Statement of Christopher Shadbolt, 9 October 2018; Exhibit CB 6). The surface is then restored. This work is usually performed by bulldozer and sometimes, but not always, the surface will require grading after completion of the boxing out. The section of road affected "is demarcated off from passing traffic by the use of bollards" (Exhibit CB 6 7). The section of road is not re-opened to traffic until it has been inspected and passed by a supervisor. When boxing out work is undertaken during hours of darkness, the bulldozer designated to perform the work tows a portable lighting unit to the site. I infer that this serves two purposes: first, to provide light for the bulldozer operator to work by; and, secondly, to illuminate the work area to notify other road users of the roadwork in progress. Only so much of the road as is affected is boxed out for the performance of the repair work. Depending on the location of the defect and its size you may "lose one side of the roadway or part of the roadway" (Mr Legge, 176.40T). Traffic control may be necessary (178.5T).
I mention the work of boxing out because in her statement of 2 November 2018 (Exhibit CB 8), and in her oral testimony, Ms Ohmsen said that boxing out work had been carried out on the Snake Gully Haul Road during the shift in question, commencing at 6:30 pm on 27 March 2018. The work was being performed under lights (Exhibit CB 6 [14]). The work was being carried out near the perpendicular bend in the road to which I have referred (232.5T). And was located "at the toe of the high wall which was on the empty side" (232.34T), which is the left-hand side for unladen trucks descending to approach the work benches. Ms Ohmsen said the work had finished "around midnight" (233.10T). After completion of the work Ms Ohmsen inspected the road to confirm its condition was satisfactory (233.17T). Ms Ohmsen clarified that the inspection she carried out after receiving the bulldozer operator's notification "that the road job was complete" was of the area where the boxing out took place. This was before she received the report of Ms D'Herville's injury (234.15 - 45T).
I have dealt with this evidence about "boxing out" and Ms Ohmsen's evidence that work of that type had been done on the Snake Gully Haul Road earlier in the shift because, as I will attempt to make clear, the question is relevant to whether Ms D'Herville's accident happened as she said it did. She was adamant that there had been no boxing out carried out on the Snake Gully Haul Road during the shift before she was injured (61.1 - .5T). Ms D'Herville denied that she had been told that "remediation" was being conducted on the haul road that night at the start of the shift (125.50T). She said when that boxing out work is carried out production continues, but the drivers receive notification by radio over the open channel. She said that it requires closure of the trafficable side of the haul road that's being boxed out. Whether portable lighting is used depends upon the outcome of a job hazard analysis, which all of the drivers operating on that section of the haul road are required to sign (61.25 - 62.45T). She re-affirmed that there was no boxing out "on the night" (63.5T).
If boxing out were being performed on Snake Gully Haul Road during the shift it may provide an explanation for the presence of a bulldozer on the haul road different from the inference for which the plaintiff contends.
In the end, I have decided that the question of whether boxing out work had been carried out on the bend in the Snake Gully Haul Road during the shift commencing at 6:30 pm on 27 March 2013 is a red herring. I have two reasons for this. First, Ms Ohmsen, whose evidence I generally accept, said the boxing out work was complete by midnight and before Mr D'Herville's injury. Secondly, I accept Ms D'Herville was injured during that shift at about 1:40 am on 28 March at a different location. That is to say, I accept that she suffered her injury not on the way down Snake Gully Haul Road unladen but as she commenced her laden journey back to the dump, more or less at the spot she marked on the second photograph above with a red X.
I should say that it was not disputed that an incident occurred in which Ms D'Herville was injured on that shift, rather the circumstances in which that incident occurred were hotly contested, including in particular, the involvement of the bulldozer.
In preferring Ms Ohmsen's evidence over Ms D'Herville's on the question of whether boxing out occurred on the shift, I have borne in mind that the former admitted to being mistaken about the date of the incident in cross-examination (238.7 - .35T). She agreed that she was "a day out, not intentionally". But she didn't agree that she was wrong about the date of the boxing out (283.40T). Notwithstanding Ms Ohmsen's error about the date, she had a good recall for the shift when Ms D'Herville was injured because of unpleasantness between them in the first aid room after Ms D'Herville's report of injury (231.5 - .15T). I accept this evidence. Although Ms Ohmsen regarded "the boxing out [as] relative to the events leading up to the injury", I did not understand her to say that the boxing out had anything to do with Ms D'Herville's injury. I accept Ms D'Herville's evidence as to the time and place, when and where the injury occurred.
Ms D'Herville's evidence that boxing out work at night would require the completion of a separate job safety analysis statement ("JSA") relevant to the use of lights was given, on my impression any way, to support, by way of self-corroboration of, her denial of the boxing out work being carried out. In cross-examination Ms D'Herville accepted that a JSA "wouldn't be arranged for ordinary boxing out" (164.35T). Mr Peter Legge, a mining superintendent now employed at a different BHP mine, was the production superintended in 2013 and a qualified open-cut examiner. His evidence was, inter alia, that a JSA was not normally required for maintenance on a haul road which was "a bit rougher than usual and requiring some attention", but still in use (173.25 - 30T). In cross-examination he said that a JSA is used when normal methods of controlling hazards may not be adequate. He was not asked whether a JSA was required for night boxing out work requiring the use of lights.
Mr Christopher Shadbolt, another open-cut examiner employed at Mt Arthur in March 2013, said that the majority of everyday tasks are covered by a safe operating procedure not requiring a separate JSA (208.30T). He, too, said that work on a section of road like the Snake Gully Haul Road that was rougher than usual, but still being used, would not require a JSA (208.42T). He confirmed in cross-examination that the JSA was not required "unless something is occurring outside the safe work method procedure that's already in place" (210.37T). It was not taken any further. In her evidence Ms Ohmsen said JSAs were required for situations "that are outside business as usual activities" not covered by current procedures. A JSA was not necessary for the "road remediation", which I understood to be a reference to boxing out, being carried out at the bend in the Snake Gully Haul Road on the shift commencing at 6:30 pm on 27 March 2013 (225.10 - .23T). From all of this evidence, I infer that boxing out work is relatively regular routine road maintenance work covered by standard procedures that does not require a JSA and I draw no inference from the failure to introduce such a document into evidence. I repeat, this issue proved to be a red herring.

Open-cut examiner's inspection reports

Over the objection of Mt Arthur, I admitted a bundle of open-cut examiner's inspection report documents covering day and night shifts for the period 21 March 2013 to 28 March 2013 (Exhibit D). Mt Arthur's objection was as to relevance. The documents were tendered on the assumption that they related to the Roxburgh Pit area where Ms D'Herville was working on the night shift of 27 March. Turning to the report for the night shift on 27 March 2013, the evidence identified that the abbreviation RXN under the heading "Location" referred to Roxburgh North. But cross-examination of the defendant's witnesses in relation to the matter failed to identify the inspection reports as being relevant to the area in which the plaintiff was working on 27 March 2013.
When Mr Legge was shown the documents in cross-examination (179.25T), he said he had filled out such documents (179.25T). On the document dated 21 March 2013 he identified the abbreviation RXN as Roxburgh North and the number 218 as an excavator number. It quickly became clear that he was unsure what area the particular form related to (180.30 - .50T). It became quite clear he was speculating as to the precise locations, the subject of the documents he was shown. At that stage I disallowed the questions in cross-examination (182.8T). They were then marked for identification, 4.
The documents were re-introduced into the cross-examination of Ms Ohmsen and I permitted the cross-examination on the basis the documents were business records which were likely to be received into evidence and s 44 Evidence Act 1995 (NSW) was not offended (241.45T). Ms Ohmsen was able to identify the type of document she was being asked about (242.40T), but when asked about the report for the day shift on 22 March 2021 it became apparent from her evidence that the inspection reports were location specific. When asked what area was involved she said "it doesn't say" (242.36T). When pressed further she said (242.40T): "Just for context, there are multiple inspection areas within the pit that an open cut examiner has to fill out, this would be one of those. So it is all of this specific section." When asked about "high walls" Ms Ohlsen could not confirm that this was a reference to the high walls at the Roxburgh Pit where Ms D'Herville's accident occurred (243.15T).
Ms Ohlsen was asked about the night shift report for 26 March and she was able to interpret the abbreviations and expand upon some of the expressions employed, but it became obvious to me that she was more or less acting as an interpreter (243.41 - 244.13T) rather than giving evidence about her Production 7 crew's work.
She was then taken to the report for the night shift for 27 March 2013 for which she was the supervisor. She confirmed that the inspection report for that shift did not contain her signature and she was unable to "confirm if it's the inspection report for the specific areas". She was then shown the inspection report for the night shift on 28 March 2013. Again, it does not contain her signature. When asked whether a reference to changed traffic conditions at "218" "would fit with somebody who was carrying out boxing out and having bollards and traffic control in place" she said "I can't confirm" (245.5T). When pressed about whether that was the boxing out to which she had referred to in her evidence she said at (245.30 - .40T): "No. No. So that for me reading this is that the traffic rules have changed. It's not suggesting that road works are required, the traffic rules have simply changed. The actions required is that the road rules are being adhered to, and positive communication to all, the definition of positive communication at a mine site is either a positive as in a response over the two‑way or a face to face, a positive communication to all at the PS, which is pre‑start, brief, and that's the response to the change traffic conditions. It doesn't suggest that road works are occurring or required, it just simply says that we've changed the road traffic conditions."
Again, it is clear that Ms Ohmsen was interpreting information put on the inspection report by another person. And although the reference to "218" may be a reference to an excavator, there was no evidence that 218 had been deployed in the area where Ms D'Herville was working on 27 March 2018. In fact the evidence is to the contrary. To the extent to which the documents were tendered and the cross-examination conducted in an attempt to demonstrate that boxing out occurred on the night shift following Ms D'Herville's injury, I accept Ms Ohmsen's evidence and I am not persuaded that the inspection report relates to the same work area. I am certainly not satisfied that it contains any suggestion that boxing out was carried out at the place where Ms D'Herville said her injury occurred, after it occurred.
I am not satisfied that Exhibit D is in fact relevant to prove any fact in issue in the proceedings. I will put it to one side.

Circumstances of Ms D'Herville's injury

It is Ms D'Herville's case that her injury happened after she had returned to the Roxburgh Pit unladen to collect another load of over-burden for the dump. In her statement (Exhibit CB 4), she said as she was driving toward excavator 208 to collect her load she observed a bulldozer operating at the entrance to the access road to excavator 219 (Exhibit CB 4 [62] - [65], [67] - [68]). I attach a third image from Exhibit CB 4 which is a closer blow-up of the second image entitled simulated re-enactment: The darker blue arrows indicate her direction of traffic travel down Snake Gully Haul Road around the bend and toward the work benches. She said she observed the bulldozer pushing dirt immediately adjacent to the haul road with its blade facing the road, which she regarded as unusual because the bulldozers normally only operate in the immediate vicinity of their excavator. She goes on to say (Exhibit 4 [64]) that normally when a bulldozer is operating on the roadway, all drivers are notified to attend the crib room to sign a JSA. I interpolate that given my earlier finding, I do not accept that part of her evidence.
Ms D'Herville continued along and entered the access road for excavator 208 where she observed the movement of the bulldozer by reference to its flashing light while her truck was loaded. When fully laden, she drove out of the 208 access road and headed in the direction of the entrance to the access road to excavator 219. She had also said in her statement that in the period leading up to the occurrence of her injury the haul roads had deteriorated to the extent that the truck speed had reduced to about 30 kilometres per hour. In her evidence in chief she said the area around the intersection of the access roads with the haul road could become rutted because of laden trucks pulling up to give way to the right before re-entering the haul road (51.30T). She also reiterated that as she approached the 208 access road on her way in, she observed 219's bulldozer in the entrance to the access road with the blade facing the high wall (63.15T).
Ms D'Herville said when she arrived at the loading area for 208 there was no truck in front of her and the loading takes about 7 minutes (65.35T). When her truck was fully laden she travelled along the 208 access road and re-entered the Snake Gully Haul Road to make her way back to the dump. As she was driving along the haul road past the entrance to the 219 access road she felt "the left side of [her] truck go downward and then upward violently … that made the truck shift left tilting and right tilting and then left again quickly and violently" (66.30 - .35T). She had never experienced such an event previously driving on the haul roads.
She said she was shaken violently inside the cabin (68.5T).
Ms D'Herville realised she had hurt herself; she had pain in her neck and right shoulder and arm. She also had pain in the right side of her low back. She attended the first aid room and received treatment from the first aid officer, Mr Steve Reynolds. Mr Reynolds applied an icepack to Ms D'Herville's back (Exhibit CB 4 [73]), however there was only one icepack available.
Mr Reynolds contacted Ms Ohlsen about the injury and she attended the first aid room. It was on this occasion that there was unpleasantness between them because Ms D'Herville complained about the lack of icepacks.
Ms D'Herville remained in the first aid room until the end of the shift at about 6:30 am. She reported for night shift on 28 March, but when she told Ms Ohlsen that she was still suffering from a very sore neck, shoulder and back, she was placed on restricted duties in the office for the whole shift. She had the Easter break off until Monday 1 April 2013, when she returned to work on the day shift. She continued to complain of pain and was driven by Ms Ohlsen to the Muswellbrook Hospital. She was then off work having medical treatment until 14 April 2013. I will deal with other aspects relevant to quantum after determining the liability issues.

Issues concerning liability

As I have already said, Mt Arthur accept an incident occurred while Ms D'Herville was driving her truck on the Snake Gully Haul Road at about 1:40 am on 28 March 2019 which caused trauma to her neck and shoulder area. I will add here that she has been paid workers' compensation entitlements in respect of such an injury. However, Mt Arthur dispute that Ms D'Herville's injury was caused by her truck driving into a large pothole or "ditch". Mt Arthur certainly dispute that Ms D'Herville drove into any large hole or ditch excavated by the bulldozer driver at the 219 work bench operating out of his designated work area. Mt Arthur's case is that the incident consisted of Ms D'Herville driving over a rough section of road due to usual wear and tear of the gravel surface.

Determination of liability issue

I am not satisfied on the balance of probabilities that Ms D'Herville has established that she was injured as a result of the negligence of the 219 bulldozer driver. To be clear, I do not accept her evidence that she saw a bulldozer operating out of position at the entrance to the 219 access road as she returned from the dump unladen at about 1:30 am and while she was stationary being loaded at the 208 work bench. In any event, her evidence does not allow me to draw a positive inference on the probabilities that the bulldozer was performing unauthorised roadworks by which a large hole, depression or "ditch" was created in the trafficable surface of the haul road. I am not persuaded that her evidence of the sighting, coupled with the occurrence of the violent shaking of her dump truck as she passed the entrance to the 219 access road are sufficient to support an inference that the bulldozer driver created a hazard on the haul road which caused Ms D'Herville's injury. Nor am I of the view that that evidence, in the context of the whole of the evidence in the proceedings, bespeaks negligence on the part of the bulldozer driver in the operation of that equipment: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 304 - 305 (Dixon CJ). Even if I were of the view that all of the plaintiff's evidence should be accepted, I am not persuaded that "the facts [so] proved … form a reasonable basis for a definite conclusion affirmatively drawn" of negligence on the part of the bulldozer driver of which I "may reasonably be satisfied". Moreover, I am in no position to draw inferences about what may have gone wrong in the operation of heavy machinery like a bulldozer, sufficient to make a judgment about negligence it its operation in the absence of expert evidence: Piening v Wanless (1968) 117 CLR 498; [1968] HCA 7; Bressington v Commissioner for Railways (NSW) (1947) 75 CLR 339; [1947] HCA 47.
I repeat that even if I had accepted the plaintiff's evidence about some involvement of the bulldozer at the entrance to 219 access road in the short time before the occurrence of the incident in which she was injured, I could not from those facts alone draw an inference of negligence. I appreciate in this regard that some effort was made to demonstrate that relevant facts were within "the power of [the defendant]". For instance, it was put that Mt Arthur could have identified the bulldozer driver and produced him to give evidence of an exculpatory type, if that was available. I was invited to draw an inference of a Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 or Jones v Dunkel type.
There was also some evidence, to which I will return, that Ms D'Herville made a complaint about the incident over the open channel 1 of the two-way radio. I understood it was put, whether expressly or implicitly, that evidence could have been led by the defendant to confirm or deny that fact. However, the "proposition" established by Blatch v Archer "is not relevant in determining whether, as a matter of law, there is evidence of negligence. It applies only where, although the evidence is sufficient as a matter of law, the defendant seeks to set aside the verdict on the ground of unreasonableness": Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 at [39], (McHugh J, albeit in dissent). I am of the view that even if I had accepted Ms D'Herville's evidence about the occurrence of the incident and its surrounding circumstances at face value, it is not sufficient to support the inference of negligence on the part of the bulldozer driver: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18.
I am not satisfied that the occurrence of an incident of even violent shaking of a very large truck on gravel roads subject to wear and tear is of a type which is unlikely to occur without negligence on the part of someone for whom Mt Arthur would be vicariously liable. Nor am I of the view that the evidence is such, for the reasons I have already explained, as would be capable of supporting an inferential reasoning process that would lead to a conclusion of negligence, on the probabilities.

Review of relevant evidence

I reiterate, fundamentally, I have rejected Ms D'Herville's case because I do not accept her evidence about the involvement of the bulldozer. In coming to this conclusion, I should not be taken as having formed an impression that Ms D'Herville was frankly dishonest in her evidence, although this was explicitly put to her. She was extensively cross-examined on the basis of contemporaneous documents and medical histories, and by reference to them, confronted with the absence of any mention of the involvement of a bulldozer in creating the conditions to which she attributed her injury. On the basis of that material, the following propositions were put (125.5 - .38T) "Q. Ms D'Herville, you've just made up this idea that a bulldozer was involved because you know that if you don't come up with some story like this you might not win this case. It's as simple as that, isn't it? A. No, I disagree. Q. And another reason for making up something about a bulldozer is that you know that you need to try to convince the Court that there was something really bad about this road on this particular night, don't you? A. Sorry, what was the question? Did I make something of it? Q. You know that you have to convince the Court that there was something really bad about this road this night, don't you? A. There was something bad about it, yes, I agree. I am sorry. Q. It was being managed - A. Perhaps I don't understand when you say I am trying to convince. I am just‑‑ Q. Don't you think‑‑ A. Okay. Q. ‑that in order to win this case you have to satisfy the Court that there was something really bad about the road that injured you? A. Yes, Mr King. Yes. Q. You well know that it wouldn't be good enough if the road was just a bit rough? A. No, I'm unaware of that. Q. The fact of the matter is that this road had been in the sort of condition it was this night many times before, hadn't it? A. All of the whole road's becoming a bumpy laminated condition." Earlier (121.43 - .49T), the following had been put: "Q. How long would it take you to identify a document which mentions the bulldozer as the cause of the problem? A. It could take me 10 minutes. Q. And will it be a document that drew that proposition to the attention of Mt Arthur Coal? A. Yes, it will." In the event, no such document was ever produced, although an affidavit of Ms D'Herville's current solicitor, Mr David Jones, sworn on 13 December 2019 was read which demonstrated that when first consulting his firm on 28 August 2014, the notes of another solicitor record that Ms D'Herville complained of a "large ditch" and a "digger/dozer" fixing a large ditch in the road. I admitted the affidavit under s 108(3) Evidence Act. I admitted it as evidence that Ms D'Herville complained to her solicitor of a large ditch on the roadway and that she was thrown about inside the cab of the truck and there was a bulldozer on the road fixing something near a corner (308.40 - .45T).
I will turn in detail to the contemporaneous documents in a moment. I will simply record now that the statement was made to solicitors shortly before a further incident which occurred on 1 September 2014 (70.10T). 1 September 2014 seems to have been Ms D'Herville's last day of work on the trucks. She worked a further three months in office work before being stood down. Her employment was terminated on 19 January 2017 by letter dated 12 January 2017 (Exhibit A).
In reaching my decision I have attempted to reason largely "on the basis of contemporary materials, objectively established facts, and the apparent logic of events": Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]. However witness demeanour has not been irrelevant to my thinking.
Turning to the contemporaneous documents, the first document is Exhibit F, a "Mt Arthur 60 Seconds 4 Safety". It bears date, 28/03/2013. Ms D'Herville seemed to agree that notwithstanding the date that the information contained in it was "what Ms Ohmsen said at the pre-shift meeting" (127.10 - .15T). In her own hand she wrote, "drive to conditions roads appear rough". She agreed that the document related to the pre-shift meeting on the 27th, rather than the 28th (140.22T), although she later denied that the information had been provided by Ms Ohmsen (141.17T).
The next document is Exhibit E, a Mt Arthur "Hazard - T/W/C - Safety Idea Report". Ms D'Herville had agreed in cross-examination that she wouldn't call "a deep hole in the roadway", either "a soft spot" or "a rough patch" (106.40 - .45T). And she also agreed that she wouldn't say that she "got hurt driving over rough roads if [she] really are claiming to got [sic] hurt because of one deep hole" (106.50T). However, Exhibit E was created by Ms D'Herville to report her incident. It records the date as 28 March 2018, the time as 1:40 am, the location as "Haul Road near 219 digger" and gives the description as "rough road surface causing truck to shake vigorously". She described immediate action required as "immediate repair". Obviously, there was no mention of a hole, ditch or other significant depression. Only "rough surface" is referred to. It's clearly a reference to her incident given the description, "shake vigorously".
While in the first aid room Ms D'Herville, Mr Reynolds and Ms Ohmsen contributed to a first aid report, Exhibit 10. The time of the incident was given as 1:30 am, it was said by Mr Reynolds to have been reported at 1:35 am and Ms D'Herville was said to have arrived at the first aid room 1:40 am. The incident details signed by both Ms D'Herville and Ms Ohmsen record that Ms D'Herville was operating truck T447 heading to the dump. In response to the question, "what unplanned event occurred?", in what I take to be Ms Ohmsen's handwriting but adopted by Ms D'Herville's signature, the following appears: "Operator travelled across rough section of road causing discomfort to RHS shoulder and lower back."
In cross-examination (109.35 - .50T), Ms D'Herville initially appeared to accept that the description of the incident was "accurate" in Exhibit 10. However, when pressed she seemed somewhat evasive (110.20 - 111.5T). She then disagreed that she had not mentioned "a single deep hole" (111.20T), when pressed further she said at (111.45T): "It's an assumption I made that I went into a large hole because of the violence that I was thrown around in in the cabin."
As I have said, when Ms D'Herville returned to work on 1 April 2013 she remained unfit to drive heavy vehicles and she was taken to Muswellbrook Hospital by Ms Ohmsen. The Emergency Department notes are Exhibit 11. The triage sister recorded: "Was driving a truck on early hours of Thursday morning. Stopped abruptly and has jarred the right side" However, the medical officer recorded that Ms D'Herville had said: "Driving at work, Thursday 1 a.m. Was on a rough road and jarred (indecipherable) shoulder (indecipherable) pain in right/neck, right low back." When questioned about the account recorded by the doctor, the following exchange occurred (113.7 - .15T): "Q. You told them you'd driven over rough road, that's all you told them, isn't it? A. Yes, it was rough road. Q. You didn't tell them that it was a quite extraordinary deep hole, you just mentioned rough road? A. Rough road."
Ms D'Herville completed a Workers' Compensation Claim Form on 3 April 2013 (Exhibit 9), in which she described the incident in the following terms: "27/3 from 6:30 p.m. I was allocated CAT truck 447 after being loaded 12:50 km (sic) left digger 208 and commenced slowly along Snake Gully Haul Road. Front of truck went into ditch and deep holes of (sic) 219 digger exit road and I was rocked quite severely inside the cab." This version includes "ditch" and "deep holes" rather than rough surface, but like the other documents, no mention is made of any activity, irregular or otherwise, by an errant bulldozer. In cross-examination, Ms D'Herville agreed that she would not have described an incident where she "encountered one deep hole" as involving "both … a ditch and deep holes" (107.5 - .20T). She then said "I would have to look at the document" and "I am sorry, there was a lot of pain involved", and said, "What was your question, I am sorry" (107.25T). When shown the document she said "'holes' is written, but it's 'hole'".
Finally in this series of early and contemporaneous documents, Ms Ohmsen completed a Workers' Compensation Form for the supervisor of the injured worker on 5 April 2013. The form was admitted as Exhibit 12 without objection. Ms Ohmsen described "how [the] incident occurred" in these terms: "Operator stated that they [sic] felt discomfort in their back after travelling through a coarse patch of road." Ms Ohmsen was not challenged about that account in cross-examination. When asked whether that was what she had told Ms Ohmsen, Ms D'Herville said, "I - not sure what a coarse patch of road is, no" (111.2T). She did not agree that coarse and rough meant the same thing and said, "Rough is used in mining" (111.17T). She maintained that she had told Ms Ohmsen about "a single deep hole being the problem" (111.20T).
These contemporaneous records and Mr D'Herville's evidence about them under cross-examination caused me to seriously question the reliability of her account that her injury was suffered when the left front wheel of her dump truck went into a single deep hole, ditch or depression, rather than through undue vibration or vigorous shaking when crossing a rough section of gravel road. While involvement of the bulldozer may not necessarily be an essential part of the narrative explaining the occurrence of an injury for workers' compensation purposes, its universal omission in this series of early records raised a real question in my mind about whether such an event happened at all.
During the cross-examination and upon review of the transcript, I formed the impression that Ms D'Herville did not answer direct question about these various accounts directly. There was a degree of avoidance and at times evasion, which I have sought to document. At other times she seemed unable to engage with the cross-examiner which I regarded as another means of avoiding the questions. In substance it was directly put to Ms D'Herville that her evidence about a deep hole and the involvement of the bulldozer was a recent invention. I am not sure the invention was deliberate, but I was left with the firm impression that her evidence about the involvement of the bulldozer, at least, was an ex post facto reconstruction to explain the presence of a single deep hole on the roadway as part of her case. I hesitate to conclude that this was deliberate, but it was at least a subconscious effect.
These very firm impressions are not dislodged by the content of Mr Jones's affidavit. The substance of the affidavit is the transcript of handwritten notes made in staccato fashion by another solicitor who interviewed Ms D'Herville in August 2014. Essentially the notes are intended as an aide memoire for that lawyer. No clear narrative emerges from the transcript. In one sense, a reference to a bulldozer working on the corner could be a reference to either the boxing out work referred to by Ms Ohmsen, which I have said is not material, or the evidence of Ms D'Herville. However, it is an account given nearly 18 months later, just before Ms D'Herville ceased work and in the context, obviously, of seeking legal advice about her possible rights arising out of her injury. Moreover, the evidence established that her present solicitors were the second firm of solicitors she had consulted about the matter. I do not criticise her for that, but obviously the context and temporal lag do not enhance the reliability of that account; quite the contrary. This material is insufficient to dislodge the impression the contemporaneous material and the oral evidence about it created.
There are very few objectively established facts in this case, but they include that Mt Arthur had instituted and maintained a safe system for maintaining the gravel haul roads which was not impugned, the gravel roads are subject to wear and may become rough through normal heavy usage, and that the dump trucks operated by Ms D'Herville and her work colleagues are extremely large and heavy. Bearing these objective facts in mind, the "apparent logic of events" tends strongly against the occurrence of an incident of the type described by Ms D'Herville involving the entry of her left front wheel into a pothole, ditch or other depression. This is so for a number of reasons.
First, the evidence as to the dimensions of the wheel suggests that the pothole or ditch would itself have very significant dimensions. To insert a moving wheel of 2.5 metres radius and 1 metre width into a hole in the roadway suggests that the length and width of the hole must have been somewhat greater than 2.5m by 1m. Ms D'Herville purported to say that she felt the depth was about 1 metre, which I suppose may be so if the incident occurred as she described (67.48T), although I was inclined to reject the answer as non-responsive to the question (68.5T). The point is that such a very large hole must have been noticeable to other users of that section of road of whom there were many, including the bulldozer driver alleged to have negligently created it. But there is no evidence to that effect before me.
Although Ms D'Herville's evidence is that there was no truck ahead of her as she approached the entrance to the 219 access road, which does not seem very probable given the number of trucks engaged in the work, there must have been many following her. Given there were three work benches and twenty four trucks, seven or eight of the trucks at any one time must have been servicing each work bench. Accepting that Ms D'Herville's truck was first and her evidence that it takes about 7 minutes to be loaded (65.35T), there must have been a number of trucks following using that stretch of the haul road. It seems unlikely that if there was an "obstruction" (my word) of this size on the haul road at the entrance to 219 access road that neither a following truck nor a truck entering or leaving the access road would have noticed it. There is no evidence that they did and this matter is not assuaged by the submission that the most likely explanation is that the errant bulldozer driver returned to remedy the defect before any other truck came along. Manifestly, that proposition depends upon the establishment of the very fact in issue it purports to prove.
Moreover, Ms Ohmsen said that after Ms D'Herville's injury was reported to her by Mr Reynolds, she carried out an "inspection … of the entire haul road inclusive of the work areas where the excavators were, as per procedure". She did not go to the dump, she inspected "the haul road, into the excavation area" (237.5 - .12T). She understood that the plaintiff said the injury occurred, "at the bend near the excavators" (237.43T). I accept this is somewhat ambiguous and I also accept that in a long passage of cross-examination on this topic a degree of confusion proceeded before the clarity of these answers emerged (233.25 - 237.10T). During this passage, Ms Ohmsen did not accept that she had received Exhibit E because those documents are normally handed in at the end of the shift (235.48 - 236.2T). I interpolate in the way of things, I think it extremely likely that she received it during her interaction with Ms D'Herville in the first aid room. That was effectively the end of Ms D'Herville's shift. However, I accept Ms Ohmsen's evidence that in accordance with the system she inspected the area and found no circumstance of concern.
During her cross-examination, Ms D'Herville reiterated the substance of evidence I disallowed in her evidence in chief about a radio call she made over the open channel 1 immediately following her accident (69.25 - 70.3T). When asked whether she could have sought out the bulldozer driver and spoken to him after the incident, she replied "and which I did over the open two-way on channel 1. The whole site heard that call". The answer was not strictly responsive to the question, but the matter stands. I consider it entitled to little or no weight given that it is an obvious attempt at self-corroboration. I do not regard it as a matter laying a foundation one would expect to be rebutted by Mt Arthur. The reason I rejected the evidence in chief was that the matter was not disclosed in Ms D'Herville's very detailed evidential statement (Exhibit CB 4). And I acceded to Mt Arthur's submission that it was no position to deal with it on the run.
Mr Shadbolt said in cross-examination that the two-way radio exchanges were recorded (211.35T). In re-examination, he said that he was unsure how long the information was retained for. In the past he had obtained recorded information "up to six months later" (261.40 - .45T). Ms Ohmsen, whose job it was to monitor open channel 1, says she did not hear about the incident on the two-way radio, although she had been listening. She was asked about the detail of Ms D'Herville's alleged call including the matter of hitting a large ditch at 219 and said that she did not hear it. It was put to her that Ms D'Herville also called the closed channel 2 to the production 7 supervisor, a position occupied by Ms Ohmsen, to report "that she had hit a large hole in front of 219". Ms Ohmsen denied that such a conversation took place. She said the first she heard about Ms D'Herville's accident is when she was notified about it by Mr Reynold's, the first aid attendant (240.12 - 241.5T).
I accept Ms Ohmsen's evidence. I am not of the view that Ms D'Herville's evidence about the radio call given in cross examination (she gave no evidence about the channel 2 call) should be accepted. Nor am I of the view that the late adducing of this evidence "required" Mt Arthur to conduct a late search of its records in an attempt to prove the negative, that no such call was made.
Ms D'Herville did not give evidence of her speed of travel when she described the incident in her evidence in chief. However, she was cross-examined about that question. When it was put to Ms D'Herville that she "could not have been going very quickly" in the particular circumstances at the time of the incident she said she believed her speed "was about 20 kilometres an hour" (132.4T). This was met with a deal of incredulity on the part of the cross-examiner (132.6T). It was suggested that her estimate "would be grossly excessive", which she denied (133.15T). It was suggested that it would have been "absolutely routine" for a dump truck emerging from an access road onto the haul road to be traveling at about 4 or 5 kilometres per hour. Ms D'Herville did not agree and would not accept that she was driving "a great deal more slowly even than 20 kilometres per hour" (133.12 - .47T). When challenged about the account of commencing "slowly along Snake Gully Haul Road" contained in her Workers' Compensation Claim Form (Exhibit 9), she made it clear that she regarded 20 kilometres per hour as fitting that description (134.17 - 27T). She denied telling Dr Anthony Smith (134.35T): "She was driving very slowly as they were still in the digging area and one very rarely exceeds 5 kph. She thought she was doing about 4 kph per hour when she hit a ditch and was thrown around in the cabin" (Exhibit CB 29, page 292). She denied that 5 kilometres per hour "is the absolutely routine speed for laden dump trucks" in the work bench areas (134.45T). Ms Ohmsen's evidence on this point rather supported Ms D'Herville. She said that in or around the excavation area when the haul road is in good condition, fully laden trucks can travel at "20, 30 ks maximum". She said if the condition was rough, "10, 20 ks" (225.25 - 226.8T). Obviously, speed is relevant to the generation of the force to which a driver would be subject if she was shaken up by entry into a hole in the road. I tend to the view that what was recorded by Dr Smith accords better with Ms D'Herville commencing slowly from the 208 access road than 20 kilometres per hour. I appreciate that Ms Ohmsen was stressing a "maximum", but given her evidence I am unable to reject Ms D'Herville's evidence about her speed at the time of the incident out of hand, except to observe it is inconsistent with earlier, presumably reliable accounts.
Mr King also cross-examined Ms D'Herville about the contents of a statement of claim filed in the District Court's residual jurisdiction claiming workers' compensation in February 2016 (Exhibit 13). The narrative of the injury included an averment that the truck "went into a ditch" but did not mention the bulldozer's involvement (124.32 - .38T). Given the document was not signed by Ms D'Herville and the involvement of the bulldozer is not material to any entitlement she may have then had to statutory workers' compensation benefits, I did not regard that matter as of any significance.
Ms D'Herville was also cross-examined on many of the histories given to or recorded by medical practitioners she had seen for treatment or for the litigation to whom she had allegedly given an inconsistent history. The main thrust of the cross-examination was the absence of any mention of a single deep hole being the problem (115.35T). These doctors included Mr Nagle, a psychologist, Dr Bentivoglio, to whom she mentioned a ditch, but not a single deep hole, Mr Sebastian Bass, a work capacity assessor to whom she mentioned "a soft patch", Dr Samuell, a psychiatrist, Dr Osborne, an orthopaedic surgeon, Dr Bateman, an orthopaedic surgeon, Dr Timothy Steel, and Dr Spittaler, both neursurgeons. To some of these doctors, Ms D'Herville was said to have mentioned a ditch to others a bump and others again a depression. The point of distinction is the failure to mention a single one metre deep hole. It is fair to say Ms D'Herville did not accept the accuracy of all of the histories as recorded by the medical profession. For my part there may be no real difference from the point of view of an examining doctor between a ditch or depression on the one hand and a single deep hole on the other. I was not of the view that these apparent inconsistencies were of themselves very significant.
Ms D'Herville was also cross-examined in some detail about her past medical history, disciplinary issues and her active lifestyle, her ongoing injury notwithstanding. It is fair to say that she made few admissions about past medical history and disciplinary issues at work even in the face of what appeared to be incontrovertible evidence about the matter. This level of intransigence was unattractive in a witness. So far as her lifestyle is concerned, evidence was introduced from her Facebook account which demonstrated her apparently following an active lifestyle since her accident including frequent overseas holidays of an adventurous type. Film exposed over several days was shown to her in cross-examination which again depicted a fairly active lifestyle, including her pursuit of her business as a photographer. Most of this material, it may be said, was relevant directly to quantum issues. On my decision on the liability issues, it will be necessary for me to make some contingent findings about quantum in the course of which I will make some reference to this body of evidence. It will not be necessary in the circumstances for me to analyse it closely.
For the reasons I have given, I am not satisfied that Ms D'Herville's injury was received by her driving her dump truck into a deep hole on the Snake Gully Haul Road which had been created by a bulldozer driver performing apparently unauthorised work on the road. I accept that she suffered an injury because she was vigorously shaken up when she drove her truck through a rough patch of road due to normal wear. I am not satisfied on the balance of probabilities that Ms D'Herville's injury was occasioned by the negligence of Mt Arthur. I am not satisfied that it is vicariously liable for any casual negligence on the part of the bulldozer driver who was serving excavator 218 on the night shift commencing at 6:30 pm on 27 March 2013. I will accordingly enter judgment for the defendant.

Contingent findings on quantum

It is incumbent upon me to detail my contingent findings relevant to damages and to set out the damages I would have awarded had I been persuaded that Ms D'Herville was entitled to judgment. I am required to take this approach to facilitate the exercise by Ms D'Herville of her right to appeal, if so advised, and lest I am wrong about liability to avoid the necessity for a re-trial.

Damages Regime

It is common ground that Ms D'Herville was as at 28 March 2013 a worker employed in or about a coal mine: clause 3(4) Schedule 6, Part 18 Workers' Compensation Act 1987 (NSW). Accordingly, by dint of Clause 3(1) the 2001 amendments to the work injury damages regime do not apply in respect of coal miners: Workers Compensation Legislation Further Amendment Act 2001 (NSW). The applicable damages regime therefore is that provided by Division 3 of Part 5 of the Workers' Compensation Act before 6 December 2001. The central provisions are ss 151G and 151H. I will set them out in full here: 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 $381,200, 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 $67,300 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 $67,300 and $89,700, the amount of damages to be awarded for non-economic loss is as follows: Damages = [Amount so assessed - $67,300 x 4] … (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 $89,700 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 $89,700 were an adjustable amount and were referred to in section 81 (1). However, section 80 (2) does not apply to the amount of $89,700. (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. In the interests of clarity, I have "updated the figures" expressed in ss 151G and 151H to reflect the figures applicable as at 28 March 2013 when Ms D'Herville was injured in accordance with the information provided to me by Mr Dooley SC, who appeared with Mr O'Rourke, for Ms D'Herville. Those figures are subject to indexation.
It is important to have a clear understanding of the thresholds established by those provisions for the recovery of damages for non-economic loss, on the one hand and damages for economic loss, on the other. Essentially in practical terms, Ms D'Herville is not entitled to damages for non-economic loss unless I am satisfied that the proportion that the severity of her non-economic loss bears to a most extreme case exceeds 17.65 percent. Between 17.65 percent and 23.35 percent of a most extreme case, the damages to be awarded are subject to a deductible on a sliding scale represented by the formula appearing at the end of s 151G(5): $381,200/$67,300 x 100. If the assessment of Ms D'Herville's entitlement to damages for non-economic loss exceeds 23.35 percent ,there is no deductible.
By s 151H(1) Ms D'Herville is not entitled to be awarded damages for economic loss unless she has received a serious injury as a result of her work place injury. The applicable provisions is s 151H(2A). She will have suffered a serious injury if she is awarded damages for non-economic loss in respect of 23.35 percent or greater of a most extreme case.

Damages issues

While Mr King SC who appears for Mt Arthur accepts that Ms D'Herville received an injury on 28 March 2021 with continuing consequences, and Mt Arthur have paid statutory workers' compensation for the consequences of her injury since, he submits that her injury is not a serious one. In Mr King's submission, the severity of Ms D'Herville economic loss expressed as a proportion of a most extreme case would fall within the range provided by the respective s 151G thresholds of 17.65 percent and 23.35 percent and accordingly she would not be entitled to damages for economic loss. Mr King makes this submission by reference to the material I have referred to above rising out of previous injuries, and the force of what the Facebook evidence and the surveillance film shows about Ms D'Herville's post-injury lifestyle.
Mr King also submits that the circumstances of the incident of 1 September 2014 to which passing reference has been made above engage the principle against double compensation discussed in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492. Mr King submits that the circumstances of that injury are substantially similar to the injury of 28 March 2013 as the medical evidence does not explicitly "allocate causal responsibility" to the injury sued upon. Accordingly, any damages must be discounted by reference to the plaintiff's rights to statutory workers' compensation benefits for the second injury.
For ease of reference, I recount that Ms D'Herville was 38 years of age when injured, 44 years of age at the date of hearing and is now 46 years of age.
She worked in the mining industry between 2010 and December 2014. Her employment was formally terminated in January 2017 because of her inability to return to her pre-injury duties.
During her employment at Mt Arthur she maintained a concurrent employment as a commercial photographer. A substantial part of her business was wedding photography. She still pursues that business activity.
After about December 2014 she moved from Muswellbrook to Newcastle and at the time of the hearing was residing in Airlie Beach, Queensland since October 2018. Apart from her photography, she obtained a short term job in Airlie Beach as a school bus driver between 26 October 2018 and 27 November 2018, but was unable to continue because of her injury.
She was and has been an avid traveller.
I accept that the plaintiff suffered injury to her neck, right shoulder and low back on 27 March 2018. The low back complaints were short lived, however.
In accordance with the Court's modern practise, the various medical experts retained on each side of the record conferred and produced a joint report. A very large measure of common ground emerged in each case with the single exception of the joint report of the expert psychologists. Where the experts have agreed I am prepared to accept their joint opinions without the need to delve into the great body of primary and secondary medical reports tendered in the proceedings.
The participants in the orthopaedic conclave were Dr James Bodel and Dr David Millons. If I may say so, both experts are well known to the Court by dint of their long experience in the field, their exceptionally good standing and their frequent participation in giving evidence in personal injury proceedings. I am aware of the limitations on the Court drawing upon its own appreciation of an expert witness's impressiveness where expert opinion is contested, discussed in Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174. However, these limitations are not applicable where there is agreement between the experts. On the basis of the joint report of Drs Bodel and Millons dated 24 October 2019 (Exhibit CB 59), I accept that Ms D'Herville sustained injury consisting of a right shoulder adhesive capsulitis (frozen shoulder) and the aggravation of degenerative changes at C5/6. Both experts were of the view that Ms D'Herville has the symptoms of pain and stiffness in her right shoulder and pain and restriction of movement in her neck that she complains of and given the long history the symptoms are likely to remain permanent. The plaintiff's condition is consistent with the injuries sustained in the incident of 28 March 2013. However, the neck injury "is certainly an aggravation of pre-existing pathology" (CB 59; page 561). The aggravation is ongoing. The injury is likely to be permanent and the prognosis is guarded.
Both experts agree that Ms D'Herville is not fit to continue in her pre-injury work as a heavy dump truck operator in the mining industry. Drs Bodel and Millons are of the opinion that the condition of the plaintiff's shoulder and neck are related to the incident. In the case of the neck, it is partly due to pre-existing pathology.
Both agree that Ms D'Herville should avoid any potential jarring aggravation in her neck and should avoid strenuous repetitive tasks above shoulder height. "She would better suited in full-time office work" (CB 59; page 562). Conservative care only is required with non-prescriptive analgesic medication and "maybe" some intermittent physiotherapy and exercise and the avoidance of aggravating activities. No hospitalisation is likely in the future and management will probably consist of quarterly visits to a general practitioner.
The opinion of the occupational physicians is very similar (Exhibit CB 53). In their joint report of 23 August 2019, both Dr Anthony Lowy and Dr Seamus Dalton agreed that she suffered a neck injury and a capsulitis of the right shoulder. Their opinion, as I have said, is broadly similar to that Dr Bodel and Dr Millons. Both are of the view that Ms D'Herville has some residual right-sided symptoms which will continue to impact upon her and her ability to perform certain manual tasks. Neither considered that there had been any impact upon Ms D'Herville's ability to care for herself or to undertake her own domestic activities, and other than for the cost of gardening, lawn mowing and carwashing, no claim for Griffiths v Kerkemeyer type damages is made. Although acknowledging that psychological consequences are matters for appropriately qualified experts, both agree that there are some psychological factors. Both agreed that during the acute phase of Ms D'Herville's "frozen shoulder" some assistance with certain domestic duties may have been necessary, but this is unlikely to have exceeded one hour per week. No future assistance is required. Ms D'Herville does not require any curative apparatus.
In their joint report of 27 and 28 August 2019 the psychologists, Mr Nagle and Dr Roberts were unable to agree on much at all. Dr Roberts doubted that any formal psychological diagnosis applied, but Mr Nagle had come to the conclusion, and adhered to his previous view, that there was diagnosis of Adjustment Disorder with mixed anxiety and depression applicable. Neither Dr Roberts nor Mr Nagle are psychiatrists, of course. Mr Nagle considered that involvement in the litigation was "a significant treatment barrier". Mr Nagle thought that after the completion of the litigation there is a prognosis for recovery after a minimum of two years with appropriate treatment. As Dr Roberts did not share Mr Nagle's view about diagnosis, she did not regard any treatment as being necessary. Both noted previous stressors. Mr Nagle is of the view that they were self-limiting and that she had recovered from previous symptomatology. Dr Roberts referred to a need for counselling following Ms D'Herville's mother's death in 2000 as a result of a parasailing accident, including a course of antidepressants. She'd also seen medical records indicating a need for counselling after Ms D'Herville had left an abusive relationship. Dr Roberts observed that Ms D'Herville had denied any previous difficulties.
Mr Nagle is of the view that Ms D'Herville's psychological symptoms were undertreated and that she would require about 40 sessions of psychological support including from a residential treatment centre and he suggested $10,000 for the cost of psychological sessions. He was unable to put a figure on the cost of inpatient treatment. Dr Roberts did not agree and "doubted" (Exhibit CB 55; page 550) any treatment was required.
Dr Doron Samuell, clinical psychiatrist, first saw Ms D'Herville at the request of Coal Mines Insurance on 12 November 2013. She complained of insomnia due to her physical injuries and said she was tired, lethargic and confused. On mental state examination Dr Samuell found Ms D'Herville to be pleasant and co-operative with an appropriate level of self-care and grooming. There was no external evidence of psychiatric illness and her cognitive function was normal. He did not consider that there was a psychiatric diagnosis of a recognised type. She had some emotional response to her physical injury and the restrictions then imposed. Dr Samuell did not regard Ms D'Herville as requiring treatment, but some sessions with a psychologist may be appropriate. Dr Samuell saw Ms D'Herville again on 5 March 2019 at the request of Mt Arthur's solicitors. At that time Ms D'Herville complained of "struggling with anxiety and depression". She struggled with relationships and felt nervous dealing with new clients for her photography business. She last saw a psychologist in mid-2018 before relocating to Airlie Beach. Dr Samuell found Ms D'Herville's presentation on mental state examination to be essentially normally. Notwithstanding her complaints, Dr Samuell felt there was no mental health diagnosis and that Ms D'Herville had no clinical symptoms or signs.
I accept the opinions of Dr Bodel and Dr Millen, supported as they are in my view by the opinions of Dr Lowy and Dr Dalton that Ms D'Herville continues to suffer from ongoing neck and shoulder pain due to the injuries received on 28 March 2013. I also accept that this will be a more or less permanent problem.
I am unable to be satisfied on the balance of probabilities, notwithstanding the evidence of Mr Nagle, that Ms D'Herville suffers from a recognised psychiatric condition as a consequence of her physical injuries. One may accept that ongoing pain, discomfort and a level of restriction may affect one emotionally. I am prepared to accept that she does have symptoms of anxiety and depression having regard to the medical and social consequences of the injury. These, however, are sub-clinical and do not require any specific treatment.
In making these findings I have borne in mind the Facebook evidence and the film. The Facebook evidence demonstrates that Ms D'Herville continues, within the restrictions of her orthopaedic injuries, to have an active lifestyle. Certainly, until the onset of the pandemic and border closures in Australia she seems to have enjoyed frequent overseas travel, as I have said, on what might be regarded as adventure holidays. These have included trekking in Nepal and hiking across Patagonia. From the photographs on her Facebook account (Exhibit 1, 2, 3, 15 - 28) she has certainly enjoyed these adventure holidays. To make matters clear I am not particularly impressed by Exhibits 1 and 2 which show Ms D'Herville leaping with apparent joy while on holidays. She explained in evidence that she had 20 years of ballet training and I accept that a person with that background can probably demonstrate greater agility with less risk of injury than a person who lacked that experience. At the same time, the photographs demonstrate her involvement in sea kayaking, deep sea fishing, sailing, including blue water sailing, albeit on large-looking yachts and snowmobiling in Norway. I accept that it is difficult for a judge to make much of such matters when they have not been put to the medical practitioners: Hellessey v Metlife Insurance Limited [2017] NSWSC 1284 (Robb J). At the same time common sense must be brought to bear and the images at least support a contention that the restrictions on Ms D'Herville's ordinary activities of daily life imposed by her orthopaedic injuries are not very great. One may also accept that when one is posing for photographs to post on social media one is unlikely to don ashes and sackcloth. One may have symptoms of anxiety and depression, notwithstanding an apparently happy visage. Still, these matters have assisted me to conclude that I am not satisfied that Ms D'Herville suffers from an ongoing psychiatric illness or disorder due to her physical injuries.
Ms D'Herville was shown a good deal of surveillance video during her cross-examination covering the whole period since her injury. Film was taken on 25 May 2013, 1 June 2013, 7 December 2013, 31 January 2014, 1 February 2014, 2 May 2014, 3 May 2014, 4 May 2014, 26 October 2014, 12 February 2015, 13 February 2015, 29 May 2015, 30 May 2015, 24 July 2016, 27 July 2016, 30 July 2017, 11 May 2018, and 12 May 2018. None of the film was shown to the doctors. However, it is fair to say it demonstrated to my lay-eye a fair degree of activity and agility particularly pursuing her business as a commercial photographer with an emphasis upon wedding photography. Given that these are contingent findings, I will not detail all of the content of the films. She was seen to use both hands, even in June 2013, opening and closing car doors and the tailgate of her car. And she was somewhat unguarded in her movements, but not always. Occasionally she seemed to protect her right arm. On 1 June 2013 she worked as a photographer at a wedding at the Newcastle Club, although she had an assistant to pull and lift a trolley bag containing her equipment. On 30 July 2017 she attended a wedding trade fair and seemed to lift at least awkward items and perhaps at the end of the day reloaded her car with some heavy looking items. Over two days on 11 and 12 May 2018 she attended the Scone Cup racing meeting apparently as an official photographer and she did so again in May 2019. From the film in 2018 she was moving around quite a bit taking photographs. she carried a large bag on her hip and on the second day was wearing a backpack as she moved around carrying her cameras.
In 2015 she was observed performing painting work in the premises she had moved into in Charlestown. It seemed to me to be fairly light painting work, although it did involve some work above shoulder height and I observed her to lift three trestles. Overall there was no sign of overt restriction to my lay eye in her movements. I accept she has the ongoing injury and problems that Drs Bodel and Millens have described. But the film does serve to show that notwithstanding those matters and an ongoing degree of pain and restriction she is able to lead a comparatively active life without gross restriction.
I should say, so far as the photography is concerned, each of the experts who support her case, accept she is fit for this work so its performance should not be regarded as inconsistent with her claims.
On these findings and bearing in mind her comparatively young age at the date of injury, the long years since then, the guarded prognosis of permanent injury with likely ongoing pain and restriction throughout her life expectancy of about 40 years, in my judgment she would have been entitled to non-economic loss equivalent to a 25 percent proportion of a most extreme case. The amount is $95,300.

Past out of pocket expenses

It was the expectation of counsel that these amounts would be agreed presumably by reference to the amount paid by the workers' compensation insurer.

Future out of pocket expenses

An amount of $44,852 is claimed for massage and therapy, general practitioner visits and medication over her life expectancy. Given the opinion of Drs Bodel and Millons, I would expect that the need for physiotherapy or massage treatment would be at best intermittent. In my opinion the appropriate allowance would have been a global assessment of $25,000. No claim is made for Griffith and Kerkemeyer damages for the past or the future, but a claim is made in respect of future expenses for gardening services and for car washing. As I have said, the occupational physicians do not support ongoing assistance of any kind. However, given the nature of her neck and shoulder injuries I can accept that heavy gardening or washing the car would be difficult and she may require paid help. The amount claimed is $29,594 averaged at $32 per week. I would have been prepared to allow this amount had the plaintiff been successful on liability.

Economic loss

My finding in relation to non-economic loss would support an award of damages for economic loss on the basis that she has met the statutory definition under s 151H of a serious injury. Section 151I Workers' Compensation Act "caps" the amount by which the plaintiff's net weekly earnings would, but for the injury, have exceeded the amount that is the maximum amount of weekly payments of compensation under s 35: plaintiff's written submissions 12 February 2020, paragraph [85]. I accept this is an accurate statement of the effect of the law.
Given my findings in relation to the nature of Ms D'Herville's injury, I accept that she is permanently unfit for work in the mining industry as a heavy vehicle operator and all like work. She has been able to continue her business as a photographer. She says she has had to adapt how she works to continue. This was not obvious to me on the film, but then again, I do not have the benefit of a trained eye and I accept she has some restrictions consistent with the opinions of Drs Bodel and Millons.
Between April 2003 and 19 December 2014, Ms D'Herville performed suitable duties for Mt Arthur. These duties included driving dump trucks albeit on a somewhat restricted basis. This continued of course until her injury of 1 September 2014. Thereafter she worked in the office. When she moved to Airlie Beach in Otober 2018 she obtained about four weeks work driving a school bus, as I have said. However, she found this beyond her capabilities and had to cease.
Mr Mark Ravagnani and Mr Sebastian Bass are the party's vocational capacity experts. Their joint report dated 1 October 2019 was admitted as Exhibit CB 57. The experts largely agreed on their opinion. They accept that on the evidence they had been asked to consider, it is unlikely that Ms D'Herville will return to her previous occupation.
It is the plaintiff's uncontested evidence that since her injury and in particular since the termination of her employment, Ms D'Herville has undertaken a number of courses to attempt to retrain and to qualify in occupational health and safety work in an attempt, as I understand her evidence, to secure ongoing work in the mining industry. She has undertaken seven courses and obtained relevant certificates in the field including an ICAM investigation course and an advanced diploma in work health and safety training (Exhibit CB 4 [126] - [132]). She attempted to find work in the area unsuccessfully before moving to Queensland.
However, Mr Ravagnani and Mr Bass are of the view that she is qualified for a wide range of non-physical work from photographer, which she is undertaking, to safety inspector or workplace health and safety officer/co-ordinator. It is also suggested she could work at a reasonably high level in retail, sales or office work. The range of salaries possibly available is $961 gross per week to $1,876 gross per week for work as a safety inspector. I must say it does seem unlikely that she could achieve in the short term work as a safety inspector, although she does seem qualified for work generally in the occupational health and safety area. The experts also point out that by moving to Airlie Beach she is in a labour market where opportunities are more limited than those available in the Hunter Valley of New South Wales. They suggest that workplace health and safety roles are likely to be limited in the Whitsunday coast region compared to the Hunter Valley. The experts regard the plaintiff as a "strong candidate in a sedentary role that's based on her past experience" (CB 57, page 554). Notwithstanding her new qualifications in workplace health and safety she may struggle to obtain work in the mining industry "in terms of her lack of practical experience".
Both experts agree that she faces significant barriers to employment as a result of the injury. She now has an inconsistent employment history since the termination of her employment with Mt Arthur "which would not be attractive to employers". Her decision to relocate to Airlie Beach "has hampered her realistic chances of securing appropriate employment by virtue of a drastically smaller labour market". Her history of disciplinary issues at Mt Arthur may also present a barrier. Both seem to agree that there are difficulties with her attitude.
Exhibit 4 relates to an incident which occurred on 18 May 2012 when Ms D'Herville was given counselling and a verbal warning in relation to a failure to following directions. Exhibits 5, 6 and 7 are three written warnings she received after the injury in relation to her co-operation with her rehabilitation plan. The last of these was on 20 August 2014. It was said to be a final written warning which would remain active for a period of five years. Exhibit 29 relates to an incident which occurred on 20 November 2011 when Ms D'Herville was operating the Liebherr dump truck. She backed into the side of a dump puncturing the windrow with her offside wheels. When interviewed she refused to accept responsibility until she was confronted with photographic evidence. During cross-examination she frankly denied the occurrence and doubted the accuracy of the record when shown it. I accept the reliability of Exhibit 29.
Doubtless Ms D'Herville may be an employee with "attitude". But the fact remains that notwithstanding the disciplinary issues and the warnings given she continued in the employ of Mt Arthur until her employment was terminated because of her inability to perform her duties due to her work-related injuries. But for the injury, I am satisfied that she would have continued in the employ of Mt Arthur working as a dump truck operator until the present. I am of the view that she was motivated to continue in the mining industry because the high wages paid supported her lifestyle including her enjoyment of frequent overseas travel. Her efforts to remain in the industry by undertaking workplace health and safety training with reference to the mining industry, I believe, corroborates that determination and intention.
At the same time, one has to take into account that Ms D'Herville's ability to earn is probably greater than that represented by the takings of her photography business and that she has effectively failed to mitigate her loss by relocating to Airlie Beach from the Hunter Valley. Although it may be that workplace health and safety work in the mining industry could be available to her in the Galilee Basin in Queensland.
Her combined income from work with Mt Arthur and her self-employed photography business was in the order of $172,000 gross per annum. I accept the calculations put forward by Mr Dooley and Mr O'Rourke that this translates to $2,275 per week net. Doing the best I can to assess Ms D'Herville's residual earning capacity, bearing in mind the evidence of the vocational capacity experts and the orthopaedic experts, I have formed the view that she has probably been capable of earning $1,000 per week net at least since the beginning of 2015. Having regard to the s 151I "cap" as set out in Annexure A to the plaintiff's written submissions, this represents a differential of between $900 and $1,200 over the period since 1 April 2013. This averages at an average weekly difference of $1,050 over the whole period of approximately 8 years and 6 months. Ordinarily I would ask counsel to calculate the precise figure, but the period is one of 442 weeks. I would allow the sum of $464,100 for past economic loss.

Future economic loss

Given her status as a single person of comparative mature years with no family ties and having regard to her preferred lifestyle it is my expectation that Ms D'Herville would have continued to work fulltime in the mining industry until she reached the retirement age of 67 years. Given her more recent qualifications, which she may have undertaken in any event to guard against the effects of advancing age on her capacity to continue in heavy work, she probably could have maintained high earnings in the mining industry throughout. The figures proposed by Mr Dooley and Mr O'Rourke in their Annexure B seem to me accurate, that is to say she currently has a residual earning capacity of $1,154 per week and that the loss when one has regard to the s 151I cap is $1,040 per week. However, the years to retirement are 21 years and the 5 percent multiplier is 685.6.
I would, however, increase the normal deduction for vicissitudes from 15 percent to 20 percent to take account of Ms D'Herville's disciplinary record. It seems at least possible that unless there was some change in her attitude, matters could have come to a head and she may have lost her position at Mt Arthur which would have put her at a disadvantage on the open market, particularly as relevant to the mining industry. The calculations then are $1,040 multiplied by 685.6 = $713,024.00 Less 20 percent $142,604.80 Leaving $570,482.20 I would have allowed the sum of $570,419.00.

Fox v Wood and superannuation

To these figures would need be added an allowance for income tax deducted from workers' compensation and an amount representative of employer's compulsory contributions to superannuation calculated in accordance with Najdovski v Crnojlovic [2008] NSWCA 175.

Kempsey District Hospital v Thackham

As I have previously pointed out, Ms D'Herville last performed active work for Mt Arthur on 19 December 2014. On 1 September 2014 she was still on light duties but had returned to at least some driving work. Her evidence was that she was taking a load of overburden up to the dump area "and hit an uneven surface on the road, ditch" (70.10T). She said she was shaken to the left and right violently and "re-aggravated the neck and right shoulder injury" (70.14T).
In cross-examination Ms D'Herville said that the pain got worse "during the time I was thrown around the cabin" (71.17T). She agreed the pain "levelled off after it got worse and just stayed with" her (71.33T).
It is not clear to me that Ms D'Herville has any independent right to compensation created by the circumstances of the incident of 1 September 2014. She actually saw her treating orthopaedic surgeon, Dr Bateman on 2 September 2014 (Exhibit CB 60, page 622) and while she complained of "some worsening neck pain and arm pain" radiating down to the hand, she did not give a history of any further injury occurring on 1 September 2014, which certainly suggests that whatever happened was not of great moment medically speaking. Dr Bateman did not record any clinical signs of any new, acute injury.
Dr Bateman referred Ms D'Herville to Dr Timothy Steel, a neurosurgeon, whom she saw on 4 November 2014. Dr Steel obtained a history of the incident of 28 March 2013 (loaded dump truck hit a bump), but no history of any incident of frank injury on 1 September 2014. Indeed, she told Dr Steel that she formerly had intense pain and now had mild neck pain brought on by activity. Dr Steel diagnosed mechanical neck pain with C5-6 disc involvement but regarded her symptoms as "not sufficiently severe enough (sic) to warrant any form of surgical intervention at this point". Most of her symptoms were arising from the shoulder (Exhibit CB 60 pp 629 - 630).
She was referred to a Ms Lisa MacPherson, a physiotherapy consultant who was reviewing her treatment. The date of the assessment was 7 July 2015. Ms D'Herville told Ms MacPherson that "on 1 September 2014, after a prolonged period of driving on a rough surface, her neck and shoulder became painful and there was a recurrence of paraesthesia and pain in her right arm similar to her initial pain in March 2013". She also told Ms MacPherson that "she is going trekking in Nepal in the next week or so" (Exhibit CB 60; page 648). Although not a medical practitioner, Ms MacPherson recorded that "operating plant bouncing around over uneven surface" was an "aggravating factor".
Ms D'Herville was referred for a second examination by Dr David Millons on 21 May 2015. She had last seen him on 27 June 2013. She gave Dr Millons a history that on 1 September 2014 she was driving a truck over rough terrain and there seemed to have been an increase in symptoms of pain in the right shoulder and neck (Exhibit CB 32, page 308). There does not appear to have been any report of ongoing problems from that aggravation of her symptoms, given that she told Dr Millons that she believed "her condition has plateaued" (Exhibit CB 32, page 309). Having received that additional history, having re-examined Ms D'Herville, and having reviewed the clinical material, Dr Millons expressed the following opinion as to diagnosis (Exhibit CB 32, page 313): "The diagnosis is of a frozen right shoulder which appears to have come about as a result of an injury at work on 28 March 2013. There might have been some aggravation of some degenerate changes in the cervical spine at that time. There has been an improvement in the range of movements of the shoulder, but she still has restriction and full elevation and particularly external rotation. There was a complaint of some issue with the lumbar region earlier in the piece. That seems to have resolved." Having received the history of the incident of 1 September 2014, Dr Millons did not change his opinion as to causation.
When Ms D'Herville first saw Dr Bodel on 18 February 2016, she made no mention of the incident of 1 September 2014. Dr Bodel considered Ms D'Herville had suffered a rotator cuff injury to the region of the right shoulder, complicated by a development of adhesive capsulitis "which has run its course but left her with residual stiffness particularly in external rotation". Neck complaints were consistent with aggravation of minor disc pathology at C5/6. As to prognosis, Dr Bodel said jarring activities will aggravate her symptoms and need to be avoided, "for this reason she cannot go back to dump truck driving" (Exhibit CB 20, page 206).
There is no evidence that the workers' compensation insurer treated what happened on 1 September 2014 as a new and separate claim for which it commenced to pay workers' compensation benefits independently of the injury of 28 March 2013.
On the evidence before me, I am satisfied that the incident of 1 September 2014 was a short-lived, symptomatic aggravation of the effects of the injury of 28 March 2013. In some ways it might be regarded as a manifestation of the previous injury inasmuch as the performance of work as a heavy vehicle operator is activity which is likely to cause flair ups in her symptomatology from time to time. In my view, the principle in Kempsey District Hospital v Thackham is not engaged.

Deduction of workers' compensation payments

Had Ms D'Herville been entitled to receive the damages which I have contingently assessed, Mt Arthur would have been entitled to deduct from those damages any amount of compensation already paid in respect of 28 March 2013 for repayment to the workers' compensation insurer, which paid the compensation: s 151B Workers Compensation Act, as it applies to coal miners.

ORDERS

For the reasons given, my orders are: 1. Judgment for the defendant; 2. The plaintiff to pay the defendant's costs.

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: 29 October 2021

Workers Compensation Legislation Further Amendment Act 2001(NSW)

Workers' Compensation Act 1987(NSW)ss 35, 151B, 151G, 151H, 151I

Evidence Act 1995(NSW)ss 44, 108

At a glance

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