Davies v Whitehaven Coal Mining Ltd

Supreme Court of NSW|2019-05-30|Before: Wright J

Solicitors: Slater and Gordon Ltd (Plaintiff) Hicksons (Defendant) File Number(s): 2016/151274

Judgment

In June 2011, Mr Davies, the plaintiff, was a multi-skilled mine worker employed by the defendant, Whitehaven Coal Mining Ltd (Whitehaven), in its Whitehaven colliery, which is an underground coal mine near Narrabri in New South Wales.
By his amended statement of claim filed on 2 June 2017, Mr Davies alleges that on 2 June 2011, he was injured as a result of Whitehaven's negligence and breach of statutory duty and suffered consequent loss and damage. Whitehaven has denied liability, contending that it was not negligent or in breach of any statutory duty. Even if it were liable, Whitehaven does not admit Mr Davies' injuries or loss and further alleges that he was contributorily negligent and failed to mitigate his loss. In addition, Whitehaven pleads the compensation payments already made to Mr Davies under the Workers Compensation Act 1987 (NSW) (the 1987 Act) by way of defence.

Mr Davies's Background

Mr Davies is a 52-year-old man. He was born in 1967 in Cessnock in New South Wales. He completed his School Certificate at Cessnock High School in 1983.
Having initially worked at a local service station and then as a bread carter, Mr Davies obtained work at the Lemington coal mine as an underground coal miner in 1985. He continued to work at that coal mine until 1992 when the mine closed. In 1986 he suffered an injury in the course of that employment when he was hit on the back of the head with a pit prop that had fallen. The injury to his neck was serious but he eventually returned to work after approximately one year recuperating. From his return to work until 1992, Mr Davies was able to do all the work of a coalminer but he continued to have some problems with his neck and he made a claim in respect of that injury.
When the Lemington coal mine closed in 1992, Mr Davies obtained employment as a bar attendant in Aberdare and afterwards with BP Pools Pty Ltd. In 1993, he returned to the coal industry working for a number of contractors who performed work at various collieries in the Hunter region. On some occasions at the end of one contracted period he did not have work immediately available before the next contract period and when that happened he obtained casual work as a security guard. Nonetheless, apart from short periods of interruption between contracts, Mr Davies was usually employed as a coalminer between 1993 and 2000.
As a result of a downturn in the mining industry in the Hunter region in 1999 and 2000, Mr Davies purchased the licence of the Back of Bourke Hotel at Bourke and conducted that business as licensee of the hotel between 2000 and 2005. During this period, he bought three blocks of land at Canowindra on which he ran some stock and he also undertook courses in Dubbo in remedial massage. In November 2002, Mr Davies obtained a Diploma in Remedial Massage and a Certificate IV in Massage.
After leaving the hotel in Burke about 2005, Mr Davies worked as a massage therapist in Orange. In 2008, he obtained employment as a hard rock miner for a contractor, working at a mine outside Orange, and he continued that work until mid-2009 when he returned to the Cessnock area, where he worked for a number of mining contractors.

Commencing work at Whitehaven colliery

In early 2010, when he was 43, Mr Davies applied for work with Whitehaven at the Whitehaven colliery near Narrabri. During an interview with the mine manager and the human resources manager, he was told that there would be at least 25 years work there. On or shortly after 25 March 2010, Mr Davies received a letter of offer of employment from Whitehaven which stated under the heading "Position" that: "in this role you will be based at the mine site which is 28 km south of Narrabri. Accordingly, you will be expected to reside within one hour's drive of the Narrabri Mine Site."
On 26 March 2010 prior to commencing work with Whitehaven, Mr Davies underwent a medical and functional assessment by Coal Services Health.
When he commenced work at the Whitehaven colliery on 19 April 2010, Mr Davies undertook a number of induction procedures and tests relating to matters such as emergency preparedness, use of surface transport, use of personal protection equipment, use of underground communications equipment and isolation of equipment. Actual coal mining did not start at the colliery until about July 2010.
Towards the end of his six months' probationary period in October 2010, Mr Davies bought a property of 1,430 acres, "Dalwood", after selling two of the blocks he owned at Canowindra. Dalwood was about 44 km from Narrabri and 33 km from Wee Waa. He saw the move to Wee Waa as a long-term change which would allow him to work at the Whitehaven Colliery until retiring age, if not beyond.
At the time of moving to Wee Waa with his partner, Mr Davies was fit and well. He had the odd neck ache but it was manageable and did not require painkillers. He had occasional backaches after performing strenuous work but they did not prevent him from doing anything. Prior to his injury, Mr Davies managed his property himself and attended to most of the work without assistance. He did the fencing, ploughing and seeding as well as breeding quarter horses and doing all the stock work. He generally ran sheep and cattle. He found he could deal with all aspects of farming activities as well as performing his work at the mine.
After coalmining started in 2010, Mr Davies performed all the usual tasks of a multi-skilled underground mine worker. The physical demands of work as an miner included lifting, carrying, bending and walking over uneven surfaces. In addition, because Mr Davies was a "competent person" for the purposes of the Coal Mines Health and Safety Regulation 2006 (NSW) he was occasionally assigned to control room work. He operated a number of pieces of equipment including a shuttle car, a loader, man transport, and a load haul dump machine or LHD, which is also known as an Eimco machine. During 2010 and 2011, he was assigned to work operating an LHD for about 50% to 60% of the time.

The load haul dump machine

There were four LHDs at the Whitehaven colliery at the relevant time. Mr Davies was given training on how to operate the LHDs by a representative of the manufacturer, Sandvik. There were two models of LHD and he was trained on both models. The training lasted about one day. LHDs are used throughout the underground coal mining industry as multipurpose machines with optional attachments including loader buckets, forks and other implements. They are used to transport materials around the mine, support the production areas, and maintain related mine infrastructure. They are diesel powered vehicles requiring regular refuelling, as well as topping up with water.
The evidence included a photograph (figure 4 in the report of Mr Cockbain of 22 May 2017) of an LS171 model LHD, which was the model involved in Mr Davies's accident. The photograph is reproduced at the end of this paragraph. Apart from the identification of the ladder on the rear of the LHD, the additional information shown on the photograph should be understood as being merely Mr Cockbain's assumptions.
In order to refuel the LHD or top up the water, it was necessary to access the engine compartment, which was located behind the rear wheels of the LHD. The top of the rear of the LHD, including the engine compartment, was approximately 1.54 metres from the ground. There was a ladder at the rear of the LHD allowing access to the top of the LHD together with hand holds, or handles, near the ladder at the top rear of the LHD.
When Mr Davies first started operating the LHDs at Whitehaven, the engine compartment covers were made of a single piece of light gauge hardened steel bent at approximately 90° so as to cover the top and side of the engine compartment. Gas struts were attached to the cover to assist in lifting it. Refuelling the LHD and topping up the water could be carried out from ground level. The operator would undo the engine compartment cover and lift it so that the gas struts kept the cover elevated. When the refuelling or rewatering was complete, the operator would reach up and take hold of the engine cover and pull it back into position.
The light gauge hardened steel engine covers originally fitted to the LHDs were, however, sometimes damaged so that either the covers could not be opened or the struts would not retain them in place when they had been opened. As a result, the LHD in question was modified so that the single piece cover was replaced by a cover with a side panel of heavier gauge flat steel joined by a piano hinge to the top cover. Thus, when the operator wanted to access the engine compartment, he would lift the vertical piece of the cover and push it up and fold it over so that it rested on the top part of the engine compartment cover. This modified cover was not supported by gas struts.
There was a dispute as to when this modification had occurred. Mr King of Senior Counsel, who appeared with Mr Rowles for Whitehaven, submitted that any such modification did not occur until after the incident on 2 June 2011. He pointed to the lack of any documentation concerning such a modification prior to that date and submitted that, if such modification had occurred, it would have been documented. In addition, he referred to the mention of struts on the incident report form submitted by the supervisor, Mr Moulds, on 2 June 2011, which is referred to in more detail below. There would have been no mention of struts, he submitted, if they were not there as a result of the covers having been modified already. It was also noted that it was Mr Davies who bore the onus of proof.
Mr Roberts of Senior Counsel, who appeared with Mr Benson for Mr Davies, submitted that the references in the incident form to the struts being "missing" was consistent with their having been removed as part of the modifications. In addition, he relied upon Mr Davies's evidence, which was not effectively shaken in cross-examination, that the modification to the engine compartment covers was made approximately two months before the incident on 2 June 2011.
I accept that the references in the incident form to the struts being missing is consistent with the modification, which included removal of the struts, having occurred prior to the incident on 2 June 2011. The absence of any documentation from Whitehaven from before 2 June 2011 relating to the modification is not sufficient to cause me to reject Mr Davies's specific evidence that the engine compartment covers were modified approximately two months before the incident in question, although it could have been longer. [1] Accordingly, I find that the engine compartment covers of the LHD in question were modified about two months prior to the beginning of June 2011.
Furthermore, given that it was an issue in these proceedings whether Whitehaven had carried out any risk assessment when making the modification to the engine compartment covers of the LHD and no documentation of such a risk assessment was adduced in evidence or produced by Whitehaven, I am prepared to infer that no formal, documented risk assessment in relation to the modification was prepared.
Following this change in the configuration of the engine compartment covers, Mr Davies still had no difficulty in opening the covers and accessing the engine compartment. However, he found it impossible, when standing on the ground, to reach the end of the side cover when the engine compartment was open and the side cover was lying on top of the top cover. In order to close the cover over the engine compartment, Mr Davies had to climb onto the top of the LHD to be able to move the side panel back into place. Prior to 2 June 2011, Mr Davies had performed this operation on a number of occasions. Mr Davies would use the two rung ladder at the back of the LHD (shown in the photograph above) to gain access to the top of the machine and to descend.
It was usual practice to refuel LHDs on the surface but occasionally it was necessary to refuel underground. This could be done in an underground diesel bay. Diesel bays contained a diesel pod and water pipes and hoses. It was not unusual for diesel to overflow in underground diesel bays and for them to be wet with groundwater.
Mr Davies had used the ladder and handholds to get up and down on the LHD without problems on a number of occasions prior to 2 June 2011.

The incident on 2 June 2011

On 2 June 2011, Mr Davies was required during his shift to refuel and rewater the LHD that he was operating. It was necessary for him to do this in an underground diesel bay, which was a short distance from where he was working. This particular diesel bay was, as was not unusual, wet with groundwater and diesel spillage and Mr Davies knew that his boots could become slippery walking around such a diesel bay.
While standing on the ground, Mr Davies lifted the vertical cover of the engine compartment and folded it back over the top of the compartment and refuelled and re-watered the machine. From ground level, however, he could not reach the vertical side cover to pull it down again and therefore he climbed up on top of the LHD using the rear access ladder without slipping or experiencing any difficulty.
Mr Davies described what then occurred in his evidentiary statement as follows: "I pulled the cover up and then pushed it over the edge of the LHD back into position. I then prepared to descend. To do this I went to the back of the machine above the ladder and crouched down preparatory to descending the machine with my back away from the machine. I took hold of the two handles which were affixed to the top of the machine grasping a handle in each hand. I then commenced to descend by placing my left foot onto the top step and then went to put my right foot onto the second (or bottom) step. As I put my left foot onto that step it slipped from under me. This meant that I swung around, or pivoted, to the left, which wrenched my right hand out of the grip which I had on the handle on the right side. I maintained my grip with my left hand but took a hold of my weight on my left arm. At that stage my weight was about 77kg and I was wearing equipment weighing some 15kg. The weight was such that I wrenched my left shoulder and had to let go and fell feet first onto the ground. I felt immediate pain in my left shoulder."
There is an apparent oddity in this account in that Mr Davies describes his attempting to put his right foot onto the second or bottom step but then says that as he put his left foot onto "that step", it slipped. Mr Davies was cross-examined on whether he was certain that it was his left foot that slipped and he maintained that no uncertainty had entered his mind about which foot slipped since he made his statement. [2]
In addition, Mr Davies was cross-examined about the description of what happened in the Coal Mines Insurance Pty Ltd Employees Compensation Claim Form filled out on 26 September 2011 which was as follows: "Slip off top of Eimco Grabbed Rail to stop Hitting the Ground".
Despite what was in that form, Mr Davies maintained that he was hanging onto the handles as he was descending. He stated that the description that he "grabbed" the rail or handholds was "not exactly how it happened". [3]
In addition, it was put to Mr Davies in cross-examination that slipping off the "top" of the LHD was different from slipping off the ladder at the rear of the machine. Mr Davies did not, in effect, accept that these were inconsistent descriptions. [4] He explained at one point: "you've got to hang on to them [the handholds] and crouch down to go over the back of the machine". [5]
At another time, Mr Davies said: "What I'm saying is that if your leg is on the top rung your body is on top of the LHD." [6]
The incident report form submitted by the supervisor, Mr Moulds, at 11:30 AM on 2 June 2011, approximately an hour and a half after the incident occurred, recorded as follows: "Briefly describe the issue: Rodney Davies slip when dismounting off the Eimco No. 3. … Provide a full description of the issue: Rod climb onto the Eimco to lower the cover (water) … Sequence of events (if applicable) Fuelled & water Eimco. Climb onto Eimco to reach covers. Lower covers. When dismounting Rod slipped and bumped his left shoulder. Why it occurred or underlying contributing facts Lost footing on slippery surface. … What are the immediate contributing factors? … Behavioural Factors (People) … [the box next to "None" was ticked] … Equipment Factors" … [next to the box "Others (specify)"] "st[r]uts missing of[f] cover … What are Root Cause(s) of this Incident: Struts missing on water cover: - Rod climbed onto Eimco to close cover + slip because of oil on boots. …"
In cross-examination, Mr Davies did not appear to me to be seeking to embellish or improve his position by the evidence he gave but was trying to answer the questions honestly to the best of his ability. There was no other witness to the incident. Mr Moulds' evidence was relevantly limited to what he had recorded on the forms filled out by him based on his understanding arising out of what Mr Davies told him at the relevant times.
I reject the contention that there was some inconsistency between the material in his evidentiary statement, properly understood, and the claim form and other descriptions of the incident given by Mr Davies. Mr Davies's evidence in his evidentiary statement must be considered in light of the actual steps involved in descending from the top of an LHD using the rear ladder. In my view, he was describing the method he proposed to use to descend from the top of the LHD and indicating that at the beginning of that process his left foot slipped.
For these reasons, I accept Mr Davies's evidence in his evidentiary statement and in cross-examination and find that what relevantly occurred on 2 June 2011 was that, after Mr Davies had refuelled and rewatered the LHD, he climbed on top of the LHD to close the engine compartment cover. After closing the cover, Mr Davies was attempting to dismount the LHD by holding onto the handgrips, placing his left foot on the top rung, then putting his right foot on the bottom rung and then moving his left foot onto the ground. At the start of this process, his left foot slipped from the top rung. At the time his foot slipped, most of his body was still effectively crouched over, or at the level of, the top of the LHD, although his feet were over the end of the LHD on, or about to reach down towards, rungs on the ladder. Losing his balance as he slipped, he grabbed harder on the handhold in his left hand and lost his grip on the handhold with his right hand. This caused him to swing, bearing his full weight on his left side, and to wrench his left shoulder. He then let go and landed, feet first, on the ground.
Mr Davies accepted that since the rungs had been fine, in the sense of not being slippery because of diesel or water, when he went up the ladder, the rungs would have been fine when he was coming down, given that he was not on top of the LHD for very long and he was the only person there. [7] The same process of reasoning also indicates that, since his boots were not so wet or greasy that they caused him to slip when going up the ladder, they were unlikely to be the cause of his slipping when descending. Mr Davies was the only person who witnessed what actually occurred. Neither his evidentiary statement nor his oral evidence contained an explanation that he slipped because of oil on his boots or that he lost his footing on a slippery surface. In my view, such explanations as those in the incident report form prepared by Mr Moulds were speculation, on his part, as to what might have occurred.
The evidence viewed as a whole did not reliably establish any specific cause for Mr Davies's left foot slipping as he started to descend.
From the incident report form it appears that, within about an hour and a half, Mr Davies reported the incident to Mr Moulds, his supervisor, who submitted his incident report form on 2 June 2011. Mr Davies received first-aid by way of having his shoulder iced for approximately 1 to 2 hours and returned to work for completion of the shift. At the end of the shift, he had a shower and put an ice pack on his shoulder for the drive home.
I accept that Mr Davies suffered injury to his left shoulder, and consequent loss and damage, as a result of the incident which occurred during the course of his employment with Whitehaven on 2 June 2011.
Accordingly, it is appropriate at this point to consider the issue of liability.

Mr Davies's case on liability

Mr Davies's case was that Whitehaven owed a duty to Mr Davies to take reasonable care to avoid exposing him to unnecessary risk of injury. It was submitted that in modifying the machine in the manner it did, Whitehaven breached that duty because it created an unnecessary risk of injury where no such risk existed before. That unnecessary risk was the risk of falling or slipping because an employee of Mr Davies's stature was required to climb on top of the LHD to close the modified engine compartment covers, which had not been necessary prior to the modification. Further it was submitted that, applying common sense to the facts of the case in accordance with the principle in March v E. and M.H. Stramare Pty. Ltd (1991) 171 CLR 506, at 509, 515 (Mason CJ), 523 (Deane J); [1991] HCA 12, the Court should conclude that the breach of duty caused the harm suffered by Mr Davies.
It was also submitted that Whitehaven breached its duty by not carrying out any risk assessment or job safety analysis at the time of making the modifications. I have already found that no formal, documented risk assessment was prepared. It was said that it was no answer to this submission that the risk assessment may have indicated that the controls in place, such as the ladder at the rear of the LHD and the handgrips were sufficient. In regard to whether this was a reasonable response to the risk, Mr Davies relied upon Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 at [14] and [15], the evidence of Prof Hebblewhite including that it was undesirable for people to be required to work on top of a machine if that were not required and that it could be difficult to maintain a tight grip and careful footholds underground with wet uneven surfaces and should not be required if it involved an unacceptable risk, and the principle that the employer must take account of the possibility of thoughtlessness, inadvertence, or carelessness on the part of its employees.
Particulars of negligence and/or breach of statutory duty were given in par 6(a) to (s) of the second amended statement of claim but there was no differentiation between what was said to be a particular of negligence, what was said to be a particular of breach of statutory duty and what was said to be a particular of both. Counsel for Mr Davies did not, in submissions, expressly rely on any identified breaches of particular statutes, regulations, standards or guidelines.
The particulars can be grouped in the following way (without referring to the various statutes, regulations and guidelines included in the particulars): 1. failure to carry out a proper risk assessment and establish a proper inspection system when the LHD's engine compartment covers were altered, thus exposing an operator such as Mr Davies to unnecessary risk of injury: particulars (a), (b), (c), (d), (h), (j), (m) and (r); 2. failure to provide a safe system of work by: 1. requiring or permitting Mr Davies to undertake the task of refuelling when it was not safe to do so in a diesel bay that was wet with water, oil and grease so that his boots were wet and covered in diesel and grease: particulars (a), (e) and (f); 2. requiring or permitting Mr Davies to position himself on top of the LHD in order to lower the engine compartment covers: particular (n); 1. failure to provide safe plant and equipment: 1. in that the modifications to the engine compartment covers of the LHD posed a risk of injury and were hazardous: particulars (a), (g), (k); 2. failure to provide a secure work platform from which to undertake the work task: particular (l); 1. failing to undertake a job safety analysis to identify risks and failing to develop and implement effective systems and plans relating to maintenance and refuelling LHDs with modified covers: particulars (i), (j), (o) and (s); 2. failure to provide instruction, training and supervision in relation to risk control measures necessary for safe performance of refuelling and rewatering following modification of the LHD engine compartment covers: particular (p); and 3. failure to heed repeated complaints made by Mr Davies in relation to the condition of the LHD engine compartment covers: particular (q).
It can be noted at this point that Mr Davies's counsel did not press some of the evidence concerning his complaints and, further, there was no evidence of repeated complaints sufficient to provide a foundation for the Court to find that failure to heed his complaints was a breach of duty by Whitehaven. Accordingly, the sixth category does not need to be addressed further.

Whitehaven's case on liability

Whitehaven submitted in effect that the case on liability should be understood as involving, in essence, a man being expected by his employer to use an established means of ascent and descent to the top of an LHD, which was about one and a half metres off the ground. There were two rungs and two handholds which were not said to be defective or unable to be used and the modifications to the LHD did not involve any changes to the rungs or the handholds. Three points of contact could be maintained using the rungs and handholds, and the employee was aware of the need to maintain such contact. Thus, there was said in effect to be no substantial risk of injury that required further precautions to be taken by the employer.
Further, it was submitted that if descending from the top of the LHD did involve substantial risk of injury, there were no realistic further precautions that were required to be taken to eliminate the risk. There was no better training, better supervision, alterations to the equipment or other means of descending that were realistic in the circumstances.
It was said that the fact that this accident unfortunately befell Mr Davies indicated that he did not maintain three points of contact, he did not grip adequately with his right hand or he did not grip at all with his right hand and, since he maintained his grip with his left hand, he must have been able to maintain his grip with his right hand if he were taking proper care. It was put that simply because there was an injury in a case of an activity which carries some risk, that did not necessarily mean there had been a breach of duty as explained in Phillis v Daly (1988) 15 NSWLR 65 at 74B-C (Mahoney JA).

Expert evidence concerning LHDs, relevant risks and systems of work

In support of his case on liability, the plaintiff relied upon the report of Mr Cockbain dated 22 May 2017. It was not in dispute that Mr Cockbain was relevantly an expert in occupational health and safety and risk management matters. He holds a Master of Applied Science degree in safety management and a Graduate Diploma in Applied Science in occupational health and safety. He is also a Fellow of the Safety Institute of Australia and a Chartered Generalist OHS Professional as well as being a Companion Member of Engineers Australia and a Certified Practising Risk Manager. He has decades of experience in risk management.
A significant part of Mr Cockbain's report amounted to submissions on the meaning and effect of various statutory provisions, regulations, standards or guidelines, on whether aspects of the equipment and system of work were safe and on whether the defendant had or had not complied with any relevant obligations or duties. This part was admitted as submission only and not as evidence. Further, where Mr Cockbain recounted what Whitehaven had or had not done and what had happened to Mr Davies, this was admitted only as the assumptions on which Mr Cockbain based any relevant expert opinions.
At pars 92 to 94 of his report, Mr Cockbain identified, based on his assumptions, what he considered to be the relevant risks and appropriate measures to control those risks as follows: "92. Based on the information provided to the writer there were a number of identifiable risks associated with the task being undertaken by the Plaintiff during the course of his employment: • The provision of an engine compartment cover which could not be closed by the Plaintiff standing on ground level and which required the Plaintiff to work at height where there was a risk to the Plaintiff falling and suffering injury. • The inadequate system of work which required the Plaintiff to ascend and descend the fixed steps on the rear of the LHD and stand on top of the LHD, which did not have any barriers or adequate hand holds to protect the Plaintiff from the risk of falling. • The process by which the Defendant modified the LHD and failed to undertake any risk assessment to identify the hazards/risks created by the modification. • The failure of the Defendant to undertake a risk assessment of the modified system of work which required the Plaintiff to ascend and descend the fixed steps on the rear of the LHD and stand on top of the LHD in order to lower the engine compartment cover. • The requirement for the Plaintiff to undertake the work task in the absence of any further instruction or training in safety systems of work following the modification of the LHD. • The failure of the Defendant to consult with the OEM prior to undertaking the modification work to identify if the engine compartment cover. [sic] • the absence of any designated walkway or work platform from which the Plaintiff to [sic] close the engine compartment cover in order to eliminate risk of the Plaintiff suffering a slip and fall event. 93. The writer notes that, the access provided by the fixed steps on the rear of the LHD and the positioning of the Plaintiff on top of the LHD was not safe. In addition, once the Plaintiff was standing on top of the LHD there was a risk that he could fall and suffer injury which ultimately occurred. 94. The system of work adopted for the performance of the work task should have required to be Plaintiff to work from ground level or from a designated walkway/platform which would have ensured that the Plaintiff was not exposed to a risk of falling from height or suffering a slip and fall event when descending the rear steps on the LHD."
Whitehaven relied on the report of Prof Hebblewhite dated 3 September 2017. It was not in dispute that Prof Hebblewhite had relevant expertise. He holds a Bachelor of Engineering (Mining) degree with first class honours and a Doctorate of Philosophy in mining engineering. Prof Hebblewhite is also a member of the Australasian Institute of Mining and Metallurgy and of the Australian Geomechanics Society, as well as a number of other professional memberships. He holds the Chair of Mining Engineering at the University of New South Wales and is also a consultant in mining engineering. Prior to joining the University of New South Wales in 1995, Prof Hebblewhite was a mining engineer and senior manager with ACIRL Ltd, involved in mine design, and research and consulting activities in all aspects of mining and coal production.
Similarly to the approach adopted in relation to Mr Cockbain's report, to the extent that Prof Hebblewhite's report contained submissions and assumptions as to factual matters, they were admitted as such and not as evidence.
Prof Hebblewhite noted in his report that, in relation to the diesel bay being wet and involving some diesel/oil on the ground: "To some extent such conditions are going to be unavoidable in a temporary, underground diesel bay such as this. It is not practical or reasonable to expect pristine spill-free conditions in a temporary location (as opposed to a fixed workshop bay)."
As to the modification to the engine compartment cover of the LHD, he was of the view that this was a relatively simple change that would have been carried out in consultation with engineering staff at the mine. In his view, this equipment modification was appropriate, following a series of problems with the design provided by the original equipment manufacturer, or OEM, and there was no evidence to support the allegation that, in itself, the modification created unnecessary or additional risk of injury.
Prof Hebblewhite observed that it was the "sub-task" of dismounting from the top of the LHD via the steps on the rear that led to the injury, not the refuelling task or the issue of working on top of the machine. He also explained the practice of using the "Take 5" process whereby employees assess a task, prior to commencing it, to ensure that the conditions and the task can be carried out safely. The procedure with using a Take 5 is that if there is an unnecessary or excessive risk identified, the person should not commence the task, but seek assistance from their supervisor.
Mr Davies gave evidence, and I accept, that he did undertake a Take 5 not long before the incident on 2 June 2011. This including looking at the ladder at the rear of the LHD. [8]
Prof Hebblewhite was of the view that if Mr Davies had maintained three points of contact firmly he would have been able to maintain stability even in the event of a foot slip. The circumstances which actually occurred indicated to Prof Hebblewhite that Mr Davies "was not descending in a correct and cautious manner".
Prof Hebblewhite also noted that Mr Davies had received specific training in the Take 5 front-line individual risk assessment practice and referred to a copy of Mr Davies's own competency assessment with respect to Take 5, in part 3.5 of his report.
More specifically, in relation to Mr Cockbain's report, Prof Hebblewhite commented as follows: "• P 22, para 92 - Mr Cockbain is critical of a lack of handholds, and yet the fact that Mr Davies held onto a handhold with his left hand resulted in his shoulder injury. There is no evidence of lack of handholds. … • P 22, para 94 - Mr Cockbain then commences discussion of suitable alternative safe work platforms that could have been provided to avoid the risk of working at height, and slipping and falling (see later discussion). • P 23, Paras 97 - 99 - these sections discuss the need for adequate training and supervision. Once again, the principle of these points is agreed with. However, the evidence suggests that Mr Davies was adequately trained, including training for dealing with any unforeseen, or elevated hazards that he has not come across before. Regarding supervision, his supervising Deputy was working in the same panel as he was, and was available for him to consult, if his Take 5 assessment had identified any concerns. • Pages 32 and 33 - three different alternative work platforms are offered by Mr Cockbain as suitable safe alternatives for accessing the LHD engine cover.… In consideration of these alternatives, a few simple observations raise serious questions about either their suitability and practicality, as well is their safety in terms of prevention of a similar accident. All three still involve stairways that someone can fall from, especially if they are not descending in an appropriate, safe and cautious manner, as was the case with Mr Davies. The simplest of the three, this is a deck, involves a steep ladder access, with limited rails or handholds, that could just as easily have led to Mr Davies falling, through failure to place feet and hands correctly. The other two options are simply impractical, in terms of size and complexity, to fit in a temporary diesel bay located within a small cut-through space where multiple vehicles have to be able to access."
In summary, Prof Hebblewhite was of the opinion that: 1. the modification to the LHD engine compartment cover, did not create an unnecessary or increased risk of injury nor was Mr Davies exposed to unnecessary injury provided he followed appropriate risk assessment procedures and acted with due caution and adherence to safe mining practices; 2. the task which Mr Davies was called upon to perform was not unsafe and he was able to undertake it in a safe manner, with appropriate recognition of his workplace environment; and 3. in addition to noting that the evidence did not support allegations in relation to failure to provide instruction, to heed complaints or to develop systems or plans, a transport management plan was in place and Mr Davies had been trained and assessed with respect to it.
A conclave involving the two experts was convened on 3 October 2018 and a joint expert witness report was prepared dated 4 October 2018. It can be observed that, in general terms, the joint report reflected in large measure the differing views expressed by the two experts, which have been referred to in some detail above.
In relation to part 6(a) of the joint report, it can be noted that, at the hearing, the Court was informed that Mr Cockbain had changed his view and now agreed with Prof Hebblewhite that the NSW Department of Primary Industries MDG 15 Guidelines for Mobile and Transportable Equipment for Use in Mines was a guideline and not intended to be a mandatory compliance document and accordingly did not require the development of a risk assessment in relation to the modifications to the engine covers of the LHD prior to 2 June 2011.
Both witnesses accepted that if there was no assessment of risks in any form in relation to the modification of the engine compartment covers of the LHD, the absence of such an assessment posed an increased risk of injury to operators.
Both experts also agreed that accessing the top of the LHD in wet and greasy conditions in a fuel bay underground, carried a greater risk of injury and that the controls in place included the handles and steps/rungs. As noted above, Mr Cockbain was of the view that those controls were not adequate, contrary to Prof Hebblewhite's opinion that they were adequate, provided the operator followed appropriate risk assessment procedures and acted with due caution and adherence to safe mining practices.
Both experts also agreed that modification of the engine compartment cover resulted in Mr Davies being unable to perform the task of refuelling and rewatering at ground level and introduced the risk of falling from height, but Prof Hebblewhite was of the view that this risk only arose if there was no alternative safe means of access.
Mr Cockbain was cross-examined jointly with Prof Hebblewhite. I formed the view that Mr Cockbain had a tendency at times to stray into arguing in support of, and avoid anything that might detract from, the plaintiff's case rather than answering the questions asked to the best of his ability as an independent expert. [9] It also appeared to me that there was little or no compelling reasoning to support Mr Cockbain's conclusions including those at pars 92 to 94 of his report. I found Prof Hebbelwhite to be more measured and responsive than Mr Cockbain and his expertise and experience, in mining engineering across all aspects of coal mining and production, was wider and more relevant than Mr Cockbain's which was focused upon occupational health and safety and risk management. Prof Hebblewhite's conclusions were, in my view, better supported by reasoning. For these reasons, while there was some agreement between these experts, where there was not, I prefer the evidence of Prof Hebblewhite. In particular, Prof Hebblewhite disagreed with some of Mr Cockbain's conclusion in pars 92 and 94 (and related paragraphs) and provided an explanation for his disagreement. I prefer the evidence of Prof Hebblewhite in these particular regards.
Accepting Prof Hebblewhite's evidence and in light of the reasons above and the further comments set out below, my conclusions in relation to Mr Cockbain's evidence (generally at pars 92 to 94 of his report) are as follows: 1. I do not accept that the "system of work" was "inadequate" because the top of the LHD and the ladder or "fixed steps" at the rear did not have any barriers or adequate handholds. In cross-examination, Mr Cockbain was asked to explain why the ladder and handholds were not adequate. His explanation at T155.26-T158.20 and his subsequent comments on related topics did not, in my view, provide a convincing explanation of inadequacy nor was such an explanation given in his report. The rungs and the handgrips were secure. Mr Davies had already used them to mount the LHD without slipping and he was aware of the three points of contact rule. In cross-examination, Mr Cockbain acknowledged that requiring use of such a ladder would not be unusual (at T168.16-.28) as follows: "KING: It's not unusual for an employer to call upon an experienced employee to use a ladder in those circumstances, is it, Mr Cockbain? WITNESS COCKBAIN: Yes, on the basis that it's secured, it has sufficient scope for handgrip and footgrip and complies with the coefficient of fraction, then that wouldn't be the case [i.e. unusual]. KING: It's particularly so if the experienced employee is well aware of the significance of three points of contact, isn't it? WITNESS COCKBAIN: That's one minor point, as, as you said previously, as long the handgrip and footgrip was sufficient and appropriate and enabled him to traverse safely, that may be the case, yes." 1. In my view, the absence of any further instruction or training in safety systems of work following the modification of the LHD did not create, or lead to an increase in, a relevant, non-theoretical risk. At par 134 of his report, Mr Cockbain himself noted that Mr Davies, given his length of time in the coal mining industry should have a "reasonable understanding … of the specific hazards and risks associated with the various work tasks involved in the industry". Mr Davies had been trained in and gave evidence of carrying out a Take 5 process just before the incident and was aware of appropriate safety measures such as maintaining three points of contact. Indeed, in oral submissions, counsel for Mr Davies acknowledged that: "there is no doubt the plaintiff knew the three point of contact rule. We would never suggest otherwise, this man after all was a "competent person". He had been certified as such, he'd been trained well it would appear by the defendant, and he doesn't suggest he wasn't fully aware of that necessity." 1. I do not accept that a walkway or work platform, of the type suggested by Mr Cockbain, "would eliminate risk of the Plaintiff suffering a slip and fall event". Photographs of options for a "walkway/platform" were provided later in his report at par 144. These included a scissor deck or lift and portable platforms. Each proposed walkway or platform involved ascending and descending from a height by a ladder or steps. As a result, none of them would eliminate the risk of falling or slipping. That risk would remain, especially in an underground diesel bay in a colliery. Further, judging from those photographs, it did not appear that Mr Cockbain's description of them as "simple" and "portable" was necessarily correct, especially if they had to be deployed or utilised in an underground diesel bay on every occasion when an LHD had to be refuelled or rewatered in that bay.
Mr Cockbain's conclusions that were said to flow from that evidence, for example in pars 145 of his report, should not be accepted for the same reasons. I also do not accept that the preventative measures referred to in par 146 were "reasonable" and "could and should have been implemented by" Whitehaven or that they would have eliminated the risk or were necessary to provide adequate safeguards.
These conclusions concerning Mr Cockbain's evidence are based, in part, upon Prof Hebblewhite's. In particular, in respect of any increased risk because of the absence of a formal risk assessment and refuelling and rewatering in an underground diesel bay, I accept Prof Hebbelwhite's evidence to the effect that, in relation to the relevant sub-task of descending from the LHD, the ladder and handholds were adequate control measures, provided the operator followed appropriate risk assessment procedures and acted with due caution and adherence to safe mining practices. Thus, if a formal risk assessment had been carried out, it would not have required the implementation of any other control measures. I find that Mr Davies had received appropriate training of this nature and did carry out a Take 5 process prior to refuelling and mounting the rear of the LHD. I also accept Prof Hepplewhite's evidence that the alternative structures proposed by Mr Cockbain for accessing the top of the LHD either involved a steep ladder access, with limited rails or handholds, or were "simply impractical, in terms of size and complexity, to fit in a temporary diesel bay located within a small cut-through space where multiple vehicles have to be able to access" and would not, in any event, have eliminated the risk of falling or slipping.
In cross-examination, [10] Prof Hebblewhite agreed that it was undesirable for a person to be required to work on top of a machine such as an LHD, if it was not necessary, and it had only become necessary in the present case because of the modification to the engine compartment covers. He also agreed that the risk of injury was magnified when the refuelling or rewatering was done underground because of the wet and greasy nature of diesel bays but he remained of the view the steps or rungs and the handholds, used with appropriate caution, were adequate control measures. He also noted that if the operator assessed that the task could not be performed safely, he had a responsibility to get instruction from his supervisor. Nonetheless, Prof Hebblewhite did acknowledge that when working underground it could be difficult to maintain a tight grip and be careful with footholds but was of the view that the issue remained whether the controls available to manage any increased risk were adequate in the circumstances.
In summary but without attempting to be exhaustive, I find that as a result of the modification to the engine compartment cover, an operator such as Mr Davies was required to go to the top of the LHD to close the cover after refuelling at the underground diesel bay and that there was a risk of falling or slipping while he descended from the top of the LHD, which was the risk that was relevant in the present case. In addition, I accept that the failure of Whitehaven to undertake a formal risk assessment of that modified system of work may have led to an increase in risk, in a theoretical sense. But, if a risk assessment had been carried out, I am satisfied that, consistently with Prof Hebblewhite's evidence, any hazard arising out of the need to descend from the top of the LHD would have been assessed as reasonably and appropriately managed by the provision of the ladder and handholds on the rear of the LHD and appropriate training for, and safety checking processes and safe working practices to be carried out by, the operator in question. Mr Davies's evidence establishes that he was appropriately trained, knew of and implemented the relevant safe working practices and did carry out the appropriate safety checking process in the present case. I also find that the alternate equipment or structures proposed by Mr Cockbain to access the top of the LHD would not have eliminated the risk of slip or fall and were not reasonably practicable in the circumstances.

Consideration of liability

It was common ground in the present case that liability was to be determined in accordance with common law principles and not the Civil Liability Act 2002 (NSW). This follows from s 3B(1)(f) of the Civil Liability Act, the fact that Pt 1B of the Civil Liability Act was not relevant in the present case, and the fact that liability in this case related to an award of damages sought under Pt 5 Div 3 of the 1987 Act. It is also consistent with authority such as Rail Corporation New South Wales v Donald [2018] NSWCA 82 at [7] (Beazley ACJ, McColl and Meagher JJA agreeing).
There was little if any contest between the parties as to the applicable principles. It is sufficient to note here that the nature of the duty of care owed by an employer to an employee was explained by the High Court in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349 as follows, at [12] (Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ): "An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work." (footnotes omitted.)
In the circumstances of the present case, Whitehaven, as Mr Davies's employer, owed him a non-delegable duty of care to take reasonable care to avoid exposing him to unnecessary risk of injury.
A useful analysis of what the plaintiff, being an employee, must relevantly prove in this case in order to establish that his employer has breached such a duty can still be found, despite its age, in Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury, 2nd ed (1979) at 16 relevantly as follows: "(a) That there was a risk of injury which was reasonably foreseeable. (The foreseeability issue.) (b) That there were reasonably practicable means of obviating such risk. (The preventability issue.) … (d) That the defendant's failure to eliminate the risk showed a want of reasonable care for the plaintiff's safety. (The issue of reasonableness.)"
In the present case, as to the foreseeability issue, a reasonable person in Whitehaven's position would have foreseen that modifying the LHD engine compartment covers so that an operator such as Mr Davies was required to mount the rear of the LHD in order to close the cover after refuelling or re-watering and then to descend to ground level involved a risk of the operator being injured by falling or slipping while descending.
As to the preventability issue and having regard to the relevant pleaded particulars as summarised above, Mr Davies's case in relation to whether there were reasonably practical means of obviating the risk that a reasonable person in Whitehaven's position would have implemented was to the effect that such means included: 1. carrying out a proper risk assessment and establishing a proper inspection system when the LHD's engine compartment covers were altered; 2. providing a safe system of work by not requiring refuelling or rewatering of the LHD in a diesel bay that was wet with water, oil and grease or by not requiring an operator to be positioned on top of the LHD in order to close the engine compartment cover; 3. providing safe plant and equipment such as a secure work platform from which to close the cover; 4. developing and implementing effective systems and plans relating to maintenance and refuelling LHDs with modified covers; and 5. providing instruction, training and supervision in relation to risk control measures necessary for safe performance of refuelling and rewatering of the LHD with modified engine compartment covers.
The first and fourth sub-paragraphs appear to overlap to some extent and, in effect, involve failure to carry out a risk assessment and implement systems or means to address the risk. The particulars covered by those subparagraphs do not themselves identify systems or means of obviating the risk. Nonetheless, although I found that the failure of the defendant to undertake a formal risk assessment of that modified system of work may have led to an increase in risk in a theoretical sense, I also found that, if a risk assessment had been carried out, it would have concluded that the increase in risk would have been reasonably and appropriately managed by the provision of the ladder and handholds on the rear of the LHD and by ensuring appropriate training, instruction and experience in safety checking processes and safe working practices to be carried out by the plaintiff.
As to the reasonableness issue, I am satisfied that, taking into account the magnitude of the risk, the probability of its occurrence and the expense, difficulty and inconvenience of taking different alleviating action and my findings in this matter, especially those based on Prof Hebblewhite's evidence, a reasonable person in Whitehaven's position would not have done more. The ladder and the handholds were provided and the plaintiff did have appropriate training, instruction and experience.
As to the preventability issue and the issue of reasonableness in respect of each of other systems or means for obviating the risk relied upon by the plaintiff identified in subparagraphs (2), (3) and (5), my reasons and conclusions are as set out in the following paragraphs.
Subparagraph (2), not requiring refuelling or rewatering of the LHD in a diesel bay that was wet with water, oil and grease and not requiring Mr Davies to be positioned on top of the LHD to close the engine compartment cover: Mr Davies's evidence, which I accept, was that refuelling underground was occasionally necessary and that was why underground diesel bays were provided. He said that he went to the underground diesel bay on 2 June 2011 because his LHD required refuelling and rewatering during the shift and the bay was a short distance away from where he was working. The evidence also established that it was not unusual for underground diesel bays to be wet with ground-water and diesel spillage. Mr Davies carried out a Take 5 before refuelling and I infer that he concluded that it was not unsafe for him to refuel and rewater there, including mounting on top of the LHD to close the engine compartment covers and descending.
In the light of these findings, I do not accept that it was necessary for Mr Davies to be required not to refuel and rewater in that bay but return to the surface. Nor do I accept that it was reasonably practicable for him to be required to refuel and rewater in the underground diesel bay and not to position himself on top of the LHD to close the cover when he had finished refuelling and rewatering in that bay.
Further, even if it were practicable to require him to return to the surface to refuel and rewater, a reasonable person in Whitehaven's position would not, in the circumstances, have required him not to refuel and rewater in the underground bay which was near where he was working and provided for that purpose. Nor would a reasonable person in Whitehaven's position have required a trained and experienced operator such as Mr Davies not to position himself on top of the LHD to close the covers when there was an established means of ascending and descending already provided on the LHD, namely the ladder and the handholds, which could be used with the caution appropriate in the underground environment and which Mr Davies had assessed as safe at the time.
Subparagraph (3), providing a secure work platform from which to close the engine compartment cover after refuelling and re-watering in the underground diesel bay: I have found that the platforms proposed by Mr Cockbain were impractical in an underground diesel bay and would not, in any event, eliminate the risk of falling or slipping since each involved working at height and access by a ladder or stairs. Thus, the plaintiff has failed to establish that there was any secure work platform that was a reasonably practicable means of obviating the risk of falling or slipping after closing the engine compartment cover on the LHD when refuelling and re-watering in the diesel bay.
Moreover, even if one of the structures proposed by Mr Cockbain could have reduced the risk, if not eliminated it, a reasonable person in Whitehaven's position would not have installed such a platform and required Mr Davies to use it, especially given the ladder and handholds available on the LHD which permitted a person to descend generally safely from the top of the LHD to the ground, approximately 1.54 metres below, provided they exercised appropriate caution and maintained three points of contact while descending.
Subparagraph (5), providing instruction, training and supervision in relation to risk control measures necessary for safe performance of refuelling and rewatering of the LHD with modified engine compartment covers: the difficulty with this contention was that it was clear that Mr Davies was a properly trained and experienced mine worker, who had been instructed specifically on the LHD in question and generally in relation to safety and safety processes and checks. He knew about the need to maintain, and practised maintaining, three points of contact when engaged in activities such as descending from the top of the LHD. He carried out a Take 5 before refuelling and rewatering the LHD. The plaintiff's evidence did not establish that there was any further or different instruction, training or supervision that could have been given that would have eliminated the risk of falling or slipping when descending from the top of the LHD.
For these reasons, I do not accept that providing instruction, training and supervision in relation to risk control measures necessary for the safe performance of refuelling and re-watering of the LHD with modified engine compartment covers was a reasonably practicable means of the obviating the risk in question. Nor is it the case that a reasonable person in Whitehaven's position would have engaged in such instruction, training or supervision as it would add nothing to what an operator such as Mr Davies already knew and did.
I conclude, therefore, that although the plaintiff has established that there was a real risk of an injury to an employee in the performance of the task of descending from the LHD after refuelling and re-watering which was reasonably foreseeable, there was no failure on the defendant's part to eliminate the risk that showed a want of reasonable care for the plaintiff's safety. In the circumstances, in my view Whitehaven provided adequate safeguards, even taking into account the possibility of thoughtlessness, or inadvertence, or carelessness on the part of an LHD operator such as Mr Davies.
Thus, the plaintiff has failed: 1. on the preventability issue, in that he did not establish that there were other reasonably practicable means of eliminating the risk that were appropriate in the circumstances; and 2. on the issue of reasonableness, in that he did not establish that the defendant showed a want of reasonable care by for the plaintiff's safety by failing to eliminate the risk by those other means.
Thus, Mr Davies has not established that Whitehaven breached its duty of care and was negligent.
As has been noted above, Mr Davies's counsel in oral submissions did not refer to any particular statutory provision which Whitehaven was said to have breached. Nor was a submission made that any particular Act or regulation imposed a higher or more stringent duty on the defendant than has already considered above in relation to negligence. In these circumstances, the findings made above concerning the nature and extent of the duty owed by Whitehaven to the plaintiff and the conclusion that that duty had not been breached adequately address Mr Davies's case in relation to breach of statutory duty.
Accordingly, there should be a verdict and judgment for the defendant on the plaintiff's claim.
In case I am wrong in reaching the conclusions referred to above and Whitehaven should be held to have breached its duty to Mr Davies, I would find that the injury suffered by him on 2 June 2011 and consequent loss and damage were caused by Whitehaven's breach, applying the common sense test of causation, as the plaintiff contended. I shall also consider, as briefly as possible, the question of contributory negligence and quantification of damages.

Contributory negligence

If, contrary to my conclusion above, Whitehaven did breach its duty of care to Mr Davies and was liable for the loss and damage caused, I am of the view that he failed to take reasonable care for this own safety. As Prof Hepplewhite opined, if Mr Davies had been exercising due caution in the environment of the underground diesel bay with which he was familiar and maintaining a firm grip on both handholds and having one of his feet on a rung, as he was aware was appropriate and necessary to maintain three points of contact, he would not have lost his grip with his right hand when his left foot slipped. Thus, if he had been descending from the top of the LHD exercising due care for his own safety, he would not have swung round and wrenched his left shoulder.
In the circumstances, in my view it is just and equitable that any damages recoverable by Mr Davies should be reduced by 30% having regard to his share in the responsibility for the damage.

Figures agreed between the parties

The parties reached an agreement as to the following figures in relation to quantum, should they become relevant: [11] 1. Mr Davis's earnings with Whitehaven but for injury since 8 August 2014 would be $2000 net per week. 2. Past out-of-pocket expenses were: 1. $40,595.24 for the period from 2 June 2011 to 7 August 2014; 2. $68,962.90 for the period from 8 August 2014 onwards. 1. Past wage loss, if the Court found Mr Davies "had no residual earning capacity" during the relevant periods, was: 1. $40,595.24 for the period from 2 June 2011 to 7 August 2014; 2. $404,000.00 for the period from 8 August 2014 to 30 June 2018 (202 weeks at $2000 net per week); and 3. $95,142.86 for the period from 1 July 2018 to 30 May 2019 (47.57 weeks at $2000 net per week); 4. (NOTE: if the Court found there was "residual earning capacity" during one or more of these periods, it was agreed that the past wage loss should be adjusted accordingly.) 1. Past loss of superannuation should be calculated as 11% of the past wage loss as determined by the Court. 2. Future loss of earning capacity is $1000 net per week. (NOTE: Mr Davies contended that the loss of future earning capacity ought to be assessed for a further period of 14.5 years with the vicissitudes factor of 15% and Whitehaven contended that the period should be 14 years with a vicissitudes factor of 30% on the evidence.) 3. Future loss of superannuation should be calculated as 13.44% of the future loss of earnings as determined by the Court. 4. Future out-of-pocket expenses are: 1. $10,000 for further surgery; 2. $10,000 for massage therapy.

Matters still in dispute as to quantum

In addition to the issues of: 1. residual earning capacity in the periods from 2 June 2011 to date; and 2. the period for assessment of future loss of earning capacity and the appropriate percentage for vicissitudes, there was also no agreement between the parties in relation to: 1. Mr Davis's claim for non-economic loss; and 2. whether the increase in symptoms suffered by Mr Davies on 8 August 2014 involved: 1. a separate frank injury or an aggravation, acceleration or exacerbation of his previous condition resulting in further incapacity and disability, or prolonging the incapacity and disability (as Whitehaven contended); or 2. an aggravation, acceleration or exacerbation of the condition of his left shoulder caused by the injury on 2 June 2011 (as Mr Davies contended); and 1. if Whitehaven's contention as to the increase in symptoms on 8 August 2014 was correct, the nature and extent of the injuries, disabilities and economic incapacity resulting from what occurred on 8 August 2014; and 2. what was described as the "Thackham" issue: 1. As to the past: Whitehaven contended that the principle in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 (Thackham) applied in respect of compensation payable as a result of the injury on 8 August 2014 and provided a table setting out the rates of payments for various periods from 8 August 2014 to 30 May 2019 and the total payments. Mr Davies contended that Thackham did not apply for the whole period from 8 August 2014 and noted that the compensation paid for the period 8 August 2014 to 30 June 2018 was $166,236.44 and for the period from 8 August 2014 to 30 May 2019 was $255,877.20; 2. As to the future: Whitehaven contended that Thackham applied and that the appropriate capitalisation rate was 3%, because the calculation was not of a loss recoverable by the plaintiff but rather of an order and is not affected by s 151J of the 1987 Act, plus the general law which was that 3% applied should prevail. Mr Davies contended that Thackham did not apply but if it did the appropriate capitalisation rate was 5% because the Thackham deduction is made as part of the calculation of future economic loss to which s 151J applies. 3. The parties agreed that if it was held that the Thackham principle applied, then there is always the prospect that there may be a change in circumstances sufficient to warrant a reduction or termination of any future entitlement of the plaintiff to weekly compensation as contemplated by ss 54 and 55 of the 1987 Act.
In order to resolve such of those matters relating to quantum as can be appropriately resolved at this stage, it is necessary to understand what occurred after 2 June 2011 and Mr Davies's treatment and progress after that date. My findings in these regards are set out the following paragraphs.

What occurred after the injury on 2 June 2011

After sustaining the injury to his left shoulder on 2 June 2011, Mr Davies took a number of days' sick leave but returned to work the following week with considerable pain in his shoulder. After three days, however, he took sick leave again and came under the treatment of his general practitioner Dr Ahmed and, subsequently, Dr Sivanathan. After taking further days of sick leave, Mr Davies had a cortisone injection into the shoulder on 21 June 2011. This injection provided some relief so that he continued his normal duties although he noticed that work above shoulder height caused significant pain. On 24 August he noticed that the left shoulder pain had worsened. Whitehaven arranged for physiotherapy but this provided little benefit.
On 20 September 2011, the pain became significantly worse while he was working above shoulder height and Mr Davies saw his GP, who provided a medical certificate for him to be off work for the rest of the week. On 26 September 2011 his GP gave him a certificate that he could return to work on suitable duties and over the following months he continued to be certified fit for such work with restrictions including lifting limited to 5 kg and avoiding the overuse of his left arm.
Consequently, Mr Davies continued to work but was mainly assigned duties in the control room.
On 24 November 2011, Mr Davies was examined by Dr Richard Powell, orthopaedic surgeon, on behalf of Coal Mines Insurance Pty Ltd (CMI). Dr Powell suspected he had aggravated his acromioclavicular joint and possibly sustained pathology involving the labrum or biceps. He was of the opinion that further investigation with an MRI was entirely appropriate and would assist in determining the definitive diagnosis. Mr Davies's then current suitable duties were thought to be appropriate.
In December 2011 Mr Davies had an ultrasound of his left shoulder and on 18 January 2012 a further injection of cortisone into the shoulder. He was also having physiotherapy at Narrabri Physiotherapy during this time. None of these treatments provided significant relief.
On 26 March 2012, Mr Davies had an MRI on his left shoulder and arrangements were made for him to consult Dr Jeffrey Hughes, an orthopaedic surgeon specialising in shoulder and elbow surgery, who saw him on 5 April 2012. In his report of 5 April 2012, Dr Hughes recorded that Mr Davies felt that his symptoms, although better than six months ago, had plateaued and failed to improve despite physiotherapy and two steroid injections. Dr Hughes noted that the MRI indicated a partial thickness tear, but not a full thickness tear, in the left supraspinatus and continued: "Clinically this man has a partial rotator cuff tear with cuff failure as a result of his wrenching injury.… At present most of his symptoms appear to be cuff in nature. In view of the fact that he has failed to improve over the last nine months in terms of strength and the level of strength makes it very difficult to perform his normal duties, then this man should give serious consideration to an arthroscopic subacromial decompression and if identified in terms of a significant loss of cuff footprint, a rotator cuff repair. The rehabilitation of a rotator cuff repair in a heavy manual work is a very long one. … There is a small chance it may not be restored. … The natural history of this condition is that he will probably plateau now for a while and then over a number of years, deteriorate as these partial tears tend to extend with time.…".
Mr Davies decided to go ahead with the arthroscopic acromioplasty and while waiting for the operation continued to perform suitable duties mainly in the control room and the store.
On 14 August 2012, Dr Hughes performed a left shoulder arthroscopic acromioplasty on Mr Davies with intra-articular injection of Kenacort. In his report on the procedure, Dr Hughes noted: "Pathology identified a moderately severe synovitis of the glenohumeral joint involving the labrum and capsule. The rotator interval appeared to be sinovitic but otherwise not obliterated."
When he reviewed Mr Davies on 20 September 2012, Dr Hughes suspected that his capsulitis was starting to recur slightly following the steroid injection on day one. On 26 October 2012, Mr Davies was permitted to return to work on suitable duties and he continued to work in the control room. On 17 January 2013, Dr Hughes noted that he had upgraded Mr Davies's work duties to a maximum lift of 10 kg to chest level and minimum use of the left arm at shoulder height or above. He also indicated that there was to be no lifting above shoulder height but Mr Davies was fit to drive.
On 14 March 2013, Mr Davies underwent further treatment from Dr Hughes by way of an ultrasound inspection and guided steroid injection into his left shoulder. The doctor also suggested that Mr Davies maintain his current work restrictions for another month to allow the steroid to work. On review on 11 April 2013, Dr Hughes was of the opinion that Mr Davies had a post-surgical capsulitis and that the inflammatory irritancy of symptoms that he experienced was real but would slowly settle over probably 12 months. He recommended that his duties should not require heavy overhead work.
Consistently with Dr Hughes's opinion in June 2013, in early August of that year, Mr Davies began a graduated return to pre-injury duties. When he returned to full duties, Mr Davies operated the various items of equipment that he had operated before the June 2011 injury but he was also assigned work from time to time in the control room. He found at the end of a shift that his shoulder was much worse than at the beginning but, if he rested between shifts, it would settle down. This continued until 7 August 2014.
On 10 July 2013, Dr Robin Mitchell, occupational physician, examined Mr Davies on behalf of CMI and provided a report dated 30 July 2013. Dr Mitchell noted the recent surgery undertaken to address bursitis and a partial thickness tear of the left supraspinatus tendon and noted that Mr Davies's recovery was delayed temporarily by capsulitis, which appeared to have cleared following further steroid injection. Dr Mitchell was of the view that Mr Davies had the capacity for normal hours of work that would not aggravate his left shoulder. It was specifically recommended that Mr Davies should manage all physical activities undertaken, particularly if repeated or sustained in nature, below mid-chest height and close to the body trunk, to avoid aggravating the left shoulder.
On Friday 8 August 2014, while working on full duties in the Whitehaven colliery lifting and manoeuvring sheets of steel mesh above shoulder height, Mr Davies suffered pain in his left shoulder to such an extent that he was unable to continue working on that day. The following day he attended Wee Waa Hospital and was given painkillers. The next Monday his GP certified him as unfit for any employment. As he was concerned that his employment might be jeopardised if he was certified unfit for any duties, on 25 August he returned to his GP and obtained a certificate permitting him to work provided he did not lift above chest level or carry more than 5 kg in his left arm. He was initially certified fit for that work for four hours a day five days a week.
Whitehaven was not prepared to permit Mr Davies to return to work on that basis. In an email dated 25 August 2014, he was informed that Whitehaven would like to see him fully fit before he returned to work.
Mr Davies's last performed work for Whitehaven on 8 August 2014, although his employment with the defendant was not terminated at that time.
On 15 September 2014, Mr Davies had another MRI of his left shoulder. On 25 September 2014 he was reviewed by Dr Hughes. In his report of 30 September 2014 Dr Hughes said: "MRI of his left shoulder from the 15th September 2014 was compared with a previous MRI dated the 26th March 2012. What is readily apparent is that there is an inferior leaflet partial rotator cuff tear on the articular surface with loss of the attachment to the greater tuberosity footprint which is significantly greater than in his older study. This suggests that this man although his tendon may have healed, has in fact incurred a slightly larger rotator cuff tear than previously documented. This is objective evidence that the injury on the 8th August 2014 is in fact an additional injury."
In that report, Dr Hughes advised against undergoing surgery immediately and recommended Mr Davis should undertake a strengthening programme for his shoulder. Mr Davies found that doing any work around his property involving any sort of lifting, pushing or pulling was beyond him and, as a result, required fence and building repairs could not be done. Even working with stock was a problem and his wife, who had previously provided considerable assistance, was not able to assist him very much around the property. He purchased a sheep handler for over $10,000 to assist in looking after the stock.
In a report dated 16 January 2015, Dr Hughes clarified his earlier opinion stating: "The basis of saying this tear has enlarged is that there is slightly greater medial retraction but if one looks at the serial sagittal views the tear extends more posteriorly into the posterior half of the supraspinatus indicative of an extension of his tear. The bursal portion of the cuff however remains intact. Thus in my opinion this represents a rim rent type mechanism of injury, causes of deep surface tear and is an extension of a pre-existing smaller tear."
On 25 February 2015, Mr Davies was also examined by Dr Ghabrial, an orthopaedic and spinal surgeon, who provided a report on that date. That report noted his various injuries and that Mr Davies had not been able to return to any type of employment after "a new injury to the left shoulder" on 8 August 2014. The doctor said that that problem was related to his injury on 8 August.
Throughout 2015, Mr Davies's shoulder continued to worsen as time went by. He was reviewed by Dr Hughes on 20 November 2015. The doctor noted that Mr Davies was showing a fairly steady deterioration over time without there being any specific event or aggravating event that resulted in further deterioration of his pain. Dr Hughes said in his report of 20 November 2015, concerning the option of further surgery: "The main concern about this is that one of the potential complications of performing a revision arthroscopic cuff in a patient who has been synovitic or capsulitic in the past, is that the surgery can produce a recurrence or recrudescence of the capsulitic process. Although this helps healing to some extent, it can produce quite a disabled patient for an extended period of time. The plan at this stage is to obtain his previous MRI's and go through them again and discuss his options further."
Dr Hughes further clarified his opinion concerning the interaction between the initial injury in 2011 and what occurred in August 2014 in a report dated 26 November 2015 provided to solicitors acting for Mr Davies. In that report Dr Hughes said: "In addition to this man's partial tear, [the 2012 arthroscopic acromioplasty] identified synovitis in the joint which imposed ongoing problems with persistent irritability of the shoulder especially with sustained and repetitive activities at shoulder height or above. This resulted in an extended rehabilitation and a number of steroid injections which resulted in partial resolution of symptoms, certainly not the level of resolution that typically occurs with an arthroscopic acromioplasty when the problem is purely mechanical in nature. Ultimately with a very small intrasubstance tear and a good decompression, the prognosis for this man's shoulder should have been good, but the lamination tear did remain a potential source of progression and extension of the cuff pathology, but measured in years rather than weeks or months. The patient represented on the 25th September 2014. He gave a history of a further injury to his left shoulder on the 8th August 2014. At the time he was pulling a layer of mesh backwards and outwards as part of his normal work duties and experienced a sharp onset of left shoulder pain which was followed by a degree of persistent discomfort and [inability] to elevate the arm against gravity without significant pain. Over the ensuing days, his shoulder did improve somewhat, but there was ongoing persistent ache and discomfort. The concern was that he may have done something to his rotator cuff. He was therefore referred for an MRI of his left shoulder and what was readily apparent, although unfortunately not explicitly reported in the MRI report, was that the inferior leaflet of his partial rotator cuff tear on the articular side had detached from the greater tuberosity footprint and this had extended posteriorly approximately 1-2cm. When one compares his previous MRI and diagnostic arthroscopy findings, the development of an interior leaflet rim-rent is clear evidence this man sustained a further injury to a rotator cuff which may have been partially compromised because of its interstitial pathology. … … I think this man is likely to have persistent shoulder cuff pain. Should he undergo a rotator cuff repair and achieve a good result, potentially this could result in him returning to his normal work duties. However, when that this is combined with a persistence of synovitis/capsulitis, I think the likelihood of returning this man to unrestricted underground coal mine activities is relatively poor.…"
On 9 February 2016, Mr Davies's employment with Whitehaven was terminated but he continued to receive compensation payments and the cost of his medical treatment was covered.
Once his employment was terminated, Mr Davies started looking for alternative employment but he found there was nothing available in the region of Narrabri and Wee Waa where almost all work was associated with rural activities. He made a number of enquiries through Landmark but found nothing. I also accept that Mr Davies would not have been able to work in a small hotel, given the nature of the work. He continued to attempt to do work around the property but found it extremely difficult. On occasions, he had to employ contractors to assist with fencing, at a cost of $14,000, or rely on friends to do the work.
When Dr Hughes reviewed Mr Davies on 2 March 2017, it was noted that the left shoulder had been gradually deteriorating, albeit slowly. It was also said that the potential for the lamination tear, disclosed in the MRI of 2014, to increase with time was certainly not uncommon and may well be the case for Mr Davies.
On 27 March 2017 Dr Powell provided an updated medical report on Mr Davies whom he had seen on 17 February 2017. Dr Powell said under the heading "diagnosis": "Mr Davies is a 50-year-old gentleman, who at the time of injuring his left shoulder in a workplace incident on 2 June 2011, was employed by Whitehaven Coal Mining Ltd as a coalminer. He underwent a left shoulder arthroscopy and subacromial decompression under the care of Dr Jeffrey Hughes. His recovery was complicated by the development of adhesive capsulitis. He was able to return to pre-injury duties, though the shoulder remained symptomatic. He suffered a flare in symptoms in August 2014, in a further workplace incident with investigations revealing evidence of some rotator cuff pathology. Conservative management was recommended."
Dr Powell noted that the overall prognosis was a little guarded and that the left shoulder was likely to remain a source of ongoing symptoms. He was of the view that Mr Davies was not fit to return to his pre-injury duties but had demonstrated the ability to self-limit his tasks in his current role on a property and he could continue in that capacity.
In a report from Dr Ghabrial dated 12 May 2017, the doctor gave his clinical assessment regarding the left shoulder as suggesting a partial tear of the supraspinatus tendon associated with subacromial/subdeltoid bursitis as well as the development of post-traumatic osteoarthritis in the acromioclavicular joint. In addition it was said: "I believe that he is not fit to return to his employment in the mines or any other employment due to his severe disabilities, particularly the left shoulder. There is no doubt that there was some deterioration of his problem over the past two years."
In a second report from Dr Ghabrial of 12 May 2017, he assessed the permanent loss of the efficient use of the left upper limb at or above the elbow as 35%.
In a report to solicitors acting for Mr Davies dated 28 June 2017, Dr Hughes gave his opinion as to what treatment might be recommended for Mr Davies's rehabilitation at that time. The doctor said: "In terms of surgical options the definitive procedure for this man would be an arthroscopic rotator cuff repair and a long head of biceps tenodesis associated with release of any capsular contracture. The problem with this type of intervention is that it may well exacerbate his capsulitis and result in an ongoing painful stiff shoulder. Thus the prognosis for this man is not the one typically associated with a rotator cuff repair. He has an ongoing associated synovitis or capsulitis. It is for that reason that I have been reticent to offer this man a surgical intervention but his symptoms have persisted for an extended period of time and not resolved with non-operative measures. …"
In the same report Dr Hughes gave his opinion as to Mr Davies's fitness for work in the following terms: "In my opinion this man is permanently unfit to undertake work or other activities requiring full strength and unrestricted ability to abduct to work at shoulder height or above while sustaining moderate to heavy weights. This is a permanent impairment and I suspect even if a successful surgical outcome was achieved, his tolerance to undertake this type of work in an occupational setting would be poor."
Even though Dr Hughes had advised him that another operation may lead to his condition deteriorating, Mr Davies eventually determined that he had little option but to have another operation.
On 30 August 2017, Dr Hughes performed further operative treatment on Mr Davies by way of a left shoulder arthroscopic revision acromioplasty.
On review on 28 September 2017, Dr Hughes noted that Mr Davies had developed an increasing ache within his shoulder and, overall, the doctor suspected that Mr Davies's irritative synovitis had recurred. Mr Davies's situation did not improve and in his report of 22 January 2018 Dr Hughes noted that on reviewing Mr Davies on 18 January: "his symptoms are deteriorating if anything. His level of ache along the posterior aspect of his shoulder now is significant, enough to worrying him both night and day. He has trialled Lyrica intermittently and although it does relieve his pain, the fuzziness and sleepiness is a problem, especially if he is required to drive. His anterior shoulder pain which was the main catching pain that he described prior to his revision surgery has resolved, suggesting that the mechanical symptoms of impingement have been dealt with. However this ongoing ache suggests that his previously described capsulitis is still ongoing and I suspect may well never settle down completely. … I think in terms of his work he will not get back to heavy robust work especially at shoulder height and above."
After a further review on 22 March 2018, Dr Hughes reported on 26 March 2018: "in terms of everyday activities, it's the sustained forward flexion of the shoulder which gives him his problems. It's brought on particularly when driving, especially driving on corrugated roads. He feels much more comfortable driving off the Lyrica and is now able to concentrate and control a vehicle with more confidence. In terms of moving forward, he is being assessed for ongoing employability. We need to take into account that he probably will always be to some extent sleep deprived because of his chronic pain and that his ability to sustain and undertake activities for extended periods of time will be reduced. So, whatever employment he does I suspect will be part-time and light in nature. In my opinion he is unfit to work at shoulder height and above on a permanent basis."
After Mr Davies consulted Dr Bokor, an orthopaedic surgeon specialising in shoulder and elbow surgery, in 2018 for a second opinion, the doctor was of the opinion that he probably did not have a surgical answer to his problem but required continuing conservative management.
A conclave of medical experts involving Dr Hughes, Dr Powell and Dr Ghabrial was held on 30 November 2018 and a joint report was produced on 27 December 2018. It does not appear that there was any dispute between the doctors in relation to the questions addressed in that report. The doctors were agreed, and I accept, that: 1. Mr Davies suffered a traumatic partial rotator cuff tear (one tendon) that resulted in secondary impingement syndrome and low-grade capsulitis. 2. The pattern and sight of the failure, the partial tear, is consistent with what occurred to Mr Davies when his foot slipped when he was descending from the LHD on 2 June 2011. 3. Mr Davies has over the years had numerous treatments and, with the test of time failed treatments, therefore his prognosis is worse in that pain-free use of his shoulder will not be restored. He will always be weak to some extent together with ongoing capsulitis which has failed to respond to operative and non-operative measures. 4. Mr Davies is vulnerable to further injury and he will not be able to go back to his full-time duties as a multi-skilled mine worker. He is not fully fit and is unlikely ever to be.
Mr Davies paid for retraining to upgrade his skills in massage in about May 2017 and he started to perform massage therapy at Narrabri Physiotherapy on two afternoons a week. In the latter part of 2018, he saw between 4 to 6 patients in an afternoon but this would lead to him being very sore. Taking into account expenses, he earned approximately $230 per week before tax from this activity.
Since August 2018 and into 2019, Mr Davies's shoulder condition has deteriorated. He has constant pain in the shoulder which is made worse by some movements of his arm and shoulder. He finds driving painful after any substantial length of time. He finds he can only sleep for 2 to 3 hours most nights after which he is woken by the pain in his shoulder and then he tosses and turns until he finds he has to get up. He is had to move into a separate bedroom as he was disturbing his wife with his tossing, turning and moaning. As a consequence, he has no sex life which puts considerable pressure and stress on his wife and their marriage. He is constantly tired and fatigued which adversely impacts not only his daily life but also his ability to drive long distances safely.
Mr Davies feels that the general background pain is always there. He takes a number of medications to attempt to relieve the pain and to improve his sleep. He continues to have remedial massage. Because his shoulder seems to be getting worse as time goes by he has also become increasingly frustrated and of depressed with his condition. He had looked forward to working till retirement at the mine and developing his property but this does not now seem possible in the light of his continuing condition.
In 2019 he has continued to work as a massage therapist in Narrabri and sees on average 10 to 15 clients a week on a regular basis. Mr Davies says that he persists with his massage work because financially it is the only way he is able to keep his farm going.
Given Mr Davies' ongoing medical condition resulting from his injury, his pre- and post-injury work history, his looking for work and his willingness to retrain and undertake work when available near his home, I reject Whitehaven's submission that Mr Davies has failed to mitigate his loss in relation to continuing employment. I do not accept that he should have moved to a large city in order to obtain employment when he could not find suitable employment near Wee Waa.

Significance of the 8 August 2014 incident

From the foregoing it can be noted that there was substantial agreement between the medical experts in relation to Mr Davies's condition and prognosis. One matter that remained in issue, however, was whether the increase in symptoms suffered by Mr Davies on 8 August 2014 involved: 1. a separate frank injury or an aggravation, acceleration or exacerbation of his previous condition resulting in further incapacity and disability, or prolonging the incapacity and disability (as Whitehaven contended); or 2. an aggravation, acceleration or exacerbation of the condition of his left shoulder caused by the injury on 2 June 2011 (as Mr Davies contended).
This issue was the primary focus of the oral evidence of the medical practitioners at the trial. Dr Hughes and Dr Power both gave evidence at the same time.
In order to address this issue, it is necessary to understand the nature of Mr Davies's injury on 2 June 2011 and its consequences. My findings based upon the whole of the evidence and, in particular, the joint report of Drs Hughes, Powell and Gharbrial, which was the product of the conclave on 30 November 2018, and the reports of Dr Hughes, Mr Davies's treating orthopaedic surgeon, are set out in the following paragraphs.
On 2 June 2011, as a result of his slipping while descending from the top of the LHD, Mr Davies suffered a traumatic partial rotator cuff tear that resulted in secondary impingement syndrome and low-grade capsulitis. As explained in Dr Hughes's report of 5 April 2012, the natural history or progression of this injury and condition was that Mr Davies's symptoms, after six to nine months, were likely to plateau for a while and then over a number of years, deteriorate "as these partial tears tend to extend with time".
When Dr Hughes performed the left shoulder arthroscopic acromioplasty on 14 August 2012, it was found that there was a moderately severe synovitis of the glenohumeral joint involving the labrum and capsule and the rotator interval appeared to be sinovitic which was, as Dr Hughes explained in oral evidence, an irritated capsulitis. This was the main finding that concerned Dr Hughes at that time and Mr Davies was given a steroid injection.
On review in September 2012, however, Dr Hughes said that it appeared that the capsulitis was starting to recur. In oral evidence, the doctor clarified that what he meant was that the capsulitis that was already present was exacerbated by the surgical procedure and, having been aggravated, it was capable of continuing to cause significant symptoms indefinitely. This is what has occurred in Mr Davies's case.
Because of continuing symptoms, Mr Davies was given a further steroid injection on 14 March 2013 and, on 11 April 2013, Dr Hughes was of the opinion that Mr Davies had a post-surgical capsulitis and that the inflammatory irritancy of symptoms that he experienced was real. At that time, the doctor thought that the capsulitis would settle slowly, probably over twelve months.
In oral evidence, Dr Hughes and Dr Powell agreed that the combination of capsulitis and a partial tear makes the rehabilitation of the tear very difficult and sometimes impossible because rehabilitation relies on having good pain control which may not be possible with the capsulitis. In July 2013, Dr Mitchell, an occupational physician, referred to the capsulitis as having delayed Mr Davies's recovery but said that it appeared to have cleared following the latest steroid injection. As it turned out, the capsulitis did not clear but returned.
Thus, prior to August 2014, Mr Davies had a partial rotator cuff tear which was likely to extend with time and capsulitis which would persist, even when symptoms were temporarily alleviated by steroid injections. Nonetheless, Mr Davies was able to work normal hours but was required to take care to minimise aggravation of his left shoulder. These conclusions are supported by the doctors in conclave who were of the view that, because of the numerous treatments Mr Davies had undergone without success, he would always be weak to some extent, together with ongoing capsulitis which had failed to respond to operative and non-operative measures. They were also agreed that he would be vulnerable to further injury.
When moving mesh overhead on 8 August 2014 as part of his normal work duties, Mr Davies suffered a significant increase in pain in his left shoulder and an inability to elevate his left arm without pain such that he could not continue working. An MRI after that date indicated that there was a slightly larger rotator cuff tear than on the previous MRI from before 8 August 2014. In his report of 30 September 2014, Dr Hughes described that as "objective evidence that the injury on the 8th August 2014 is in fact an additional injury". In a later report of 26 November 2015, Dr Hughes explained that: "the [previous] the lamination tear did remain a potential source of progression and extension of the cuff pathology, but measured in years rather than weeks or months. … When one compares his previous MRI and diagnostic arthroscopy findings, the development of an interior leaflet rim-rent is clear evidence this man sustained a further injury to a rotator cuff which may have been partially compromised because of its interstitial pathology. … I think this man is likely to have persistent shoulder cuff pain. Should he undergo a rotator cuff repair and achieve a good result, potentially this could result in him returning to his normal work duties. However, when this is combined with a persistence of synovitis/capsulitis, I think the likelihood of returning this man to unrestricted underground coal mine activities is relatively poor.…"
In oral evidence, Dr Hughes explained that "there was an extension of his rim-rent, but overlying all this is he still had a capsulitis and that was a major driver in his symptoms as well" and it was not possible to say that the symptoms were definitely from the cuff tear or the capsulitis. Dr Power agreed saying he would defer to Dr Hughes's opinion and noting: "looking at whether or not the contribution is from capsulitis or from a cuff tear. But there's a lot of overlap and sometimes you just can't differentiate".
Nonetheless, Dr Hughes said in oral evidence that Mr Davies came to this second injury with persisting symptoms from an underlying capsulitis and that it was this capsulitis that has been his ongoing problem and the reason why he is unable to return to work. Dr Powell agreed with Dr Hughes. Dr Powell also said that the increase in symptoms together with the MRI showing an increased tear could indicate that the additional clinical damage was caused by the trauma on 8 August 2014.
In relation to the further tear, Dr Hughes explained in oral evidence that, in effect, the natural history of Mr Davies's condition resulting from the original injury in 2011 was that his rotator cuff would continue to tear over time. In substance, Dr Hughes's evidence was that the partial cuff tear was not the major issue in managing Mr Davies's symptoms, it was the capsulitis. And, the capsulitis inhibited the rehabilitation of the shoulder. Dr Powell did not disagree. Finally, it can be noted that Dr Power in his report of 27 March 2017 described the result of what occurred in August 2014 as follows: "He suffered a flare in symptoms in August 2014, in a further workplace incident with investigations revealing evidence of some rotator cuff pathology."
Based on that material and having regard to all of the other medical evidence and Mr Davies's evidence concerning his condition, I find that: 1. After 2 June 2011 and as a result of the injury suffered on that occasion, Mr Davies was vulnerable to suffering further tearing to his rotator cuff and these further tears, such as that observed on the post-8 August 2014 MRI, were likely to occur from time to time leading to an increase in symptoms. 2. Also as a consequence of his injury on 2 June 2011, Mr Davies developed capsulitis which, given the lack of success of treatment, was ongoing. The capsulitis was the main cause of his symptoms before and after 8 August 2014. 3. Although the rotator cuff can in some cases be rehabilitated with strengthening and surgery, the pain resulting from the capsulitis inhibited very significantly Mr Davies's ability to strengthen his rotator cuff and surgery, in Mr Davies's case, exacerbated his capsulitis.
In all the circumstances, it appears to me that the increase in symptoms on 8 August 2014 while moving the mesh and any further tearing that occurred at this time would not have occurred had Mr Davies not suffered the injury on 2 June 2011. They were part of the "natural history", to use Dr Hughes's words, of the deterioration and extension of Mr Davies condition to be expected after 2 June 2011 rather than being a separate, unrelated injury. Further, it was the ongoing capsulitis that was principally responsible for the symptoms Mr Davies suffered and continues to suffer and this was caused by the original 2011 injury and was only caused to "flare", to use Dr Powell's description, by what occurred on 8 August 2014.
The principles applicable in those circumstances were stated by Malcolm CJ in State Government Insurance Commission v Oakley [1990] Aust Torts Rep 81-003 and have been accepted by the Court of Appeal in cases such as Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999] NSWCA 115 at [29]-[30] and Falco v Aiyaz; Falco v Falzon [2015] NSWCA 202 (Falco) at [13] and [94]; 71 MVR 454. Those principles are: "where the negligence of a defendant causes an injury, and the plaintiff subsequently suffers a further injury the position is as follows: (1) where the further injury results from a subsequent accident which would not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence; (2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; (3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first."
The present case falls within the par (1) of those principles on the basis that the extension of the tear and the increase in symptoms on 8 August 2014, being the relevant "accident", would not have occurred had Mr Davies not been injured in the way that he was on 2 June 2011.
Accordingly, the loss and damage suffered by Mr Davies as a result of the 2 June 2011 accident includes the loss and damage resulting from what occurred on 8 August 2014.

Non-economic loss

The parties did not reach any agreement as to noneconomic loss. Nonetheless, it was not in dispute that the awarding of damages for non-economic loss, in a case such as the present involving a "coal miner" as defined in cl 3 of Pt 18 of Sch 6 to the 1987 Act, is governed by s 151G of the 1987 Act in its form before the 2001 amendments to that Act. Prior to the 2001 amendment, s 151G provided: "151G Damages for non-economic loss (1) [repealed] (2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded. (3) The maximum amount which may be awarded for non-economic loss is $204,000, but the maximum amount may be awarded only in a most extreme case. (4) If the amount of non-economic loss is assessed to be $36,000 or less, no damages for non-economic loss are to be awarded. (5) If the amount of non-economic loss is assessed to be between $36,000 and $48,000, the amount of damages to be awarded for non-economic loss is as follows: Damages = [Amount so assessed- $36,000] x 4 (6) [repealed] (7) Division 6 of Part 3 (Indexation of amounts of benefits) applies as if the amounts of $204,000, $36,000 and $48,000 were adjustable amounts and were referred to in section 81(1). However, section 80(2) does not apply to the amounts of $36,000 and $48,000. (8) If an amount mentioned in this section: (a) is adjusted by the operation of Division 6 of Part 3; or (b) is adjusted by an amendment of this section, the damages awarded are to be assessed by reference to the amount in force at the date of injury."
It was also not in dispute that the relevant indexed amounts corresponding to $204,000, $36,000 and $48,000 in that section were, at 2 June 2011, $363,000, $63,900 and $85,200 respectively.
Having regard to the facts and circumstances set out above, especially those relating to Mr Davies's injuries, symptoms and disabilities, and their effect on his life, I assess Mr Davies's non-economic loss, relevantly being pain and suffering, loss of amenities of life and loss of expectation of life in accordance with the definition in s 149 of the 1987 Act prior to the 2001 amendment, to be 30% of a most extreme case or $108,600.00. Given that finding, no adjustment is necessary under s 151G(3) or (4).

Economic loss

The threshold for the awarding of damages for economic loss under s 151H of the 1987 Act, in its form before the 2001 amendments to that Act, has been passed in the present case, since the amount which would be awarded for non-economic loss exceeds the amount specified in s 151H(2A)(b) as indexed.
Most of the figures in relation to economic loss in the present case have been agreed between the parties, as has been set out above. The issues that remain to be determined are: 1. residual earning capacity, if any, in the period from 2 June 2011 to date; and 2. the period for assessment of future loss of earning capacity and the appropriate percentage for vicissitudes.

Past residual earning capacity

The parties did not agree whether Mr Davies had any, and if so what, past residual earning capacity for the periods: 1. from 2 June 2011 to 7 August 2014; 2. from 8 August 2014 to 30 June 2018; 3. from 1 July 2018 to date.
The parties did agree that Mr Davies's future residual earning capacity was $1,000 per week net.
As to the period from 2 June 2011 to 7 August 2014, based on the evidence of Mr Davies and the material in Dr Hughes's reports and other material concerning Mr Davies's treatment and progress, I accept that when he was not employed on suitable duties or pre-injury duties by Whitehaven, Mr Davies was unable to work because of the injury received on 2 June 2011. It was not established that Mr Davies earned or was able to earn any significant sums otherwise than by working for Whitehaven during this period.
Therefore, in accordance with the figure agreed between the parties, Mr Davies would be entitled to recover $40,595.24 in lost earnings for the period from 2 June 2011 to 7 August 2014.
As to the period from 8 August 2014 to 30 June 2018, I find that there has been a gradual deterioration in his left shoulder over that period and an increase in pain, despite the operative and non-operative treatment that Mr Davies has received. This has affected his ability to find other employment and to drive the long distance from his home to obtain work. Nonetheless, Mr Davies has looked, unsuccessfully, for other employment and worked or attempted to work on his property during this period. He has also undertaken further training, and started work, as a massage therapist. As stated earlier, I do not accept that he has failed to mitigate his loss in this regard during this period, or for that matter, at any other time. Given his circumstances, he has taken reasonable steps to find other employment. It would not be reasonable, in my view, to require Mr Davies to leave his property and move to Sydney or a larger regional city in order to look for work that he might have performed during the period in question. I also accept that he has had over the period from 8 August 2014 to 30 June 2018 some capacity to earn an income but this capacity has not been able to be fully utilised given his circumstances.
I have taken into account that the parties have agreed that his loss of earning capacity, after May 2019, was $1,000 net per week. Neither his earning capacity nor his loss of earnings is likely to have been uniform throughout the period of 8 August 2014 to 30 June 2018 because of, for example, the recovery time after the exacerbation of his symptoms on 8 August 2014 and after the surgical procedure on 30 August 2017, his undertaking retraining in massage therapy and commencing work as a therapist and his symptoms varying in intensity from time to time. In the circumstances, it is impossible to determine with any precision what Mr Davies's residual earning capacity was at particular times during that period. In my view, it is fair and reasonable to assess his earning capacity during the period in question as an average over the whole of the period of $500 net per week. This takes into account that towards the end of this period his earning capacity would be at or near the $1000 per week net agreed between the parties for future residual earning capacity but earlier in the period it is likely to have been nil or very low. Bearing in mind the parties' agreement that Mr Davies' loss of earning was $2000 net per week for the period from 8 August 2014 to 30 June 2018 subject to any residual earning capacity, I find that he would be entitled to recover past loss of earnings of $1,500 net per week for the 202 weeks from 8 August 2014 to 30 June 2018. That is a total of $303,000.00.
As to the period from 1 July 2018 to date, I can see no reason why Mr Davies's earning capacity would be different from his earning capacity in the future. The parties agreed that his future earning capacity was $1,000 net per week and I am satisfied that this is also a fair assessment of his earning capacity from 1 July 2018 to date (19 August 2019) being 60 weeks. Once again, bearing in mind the parties' agreement that Mr Davies' loss of earning was $2000 net per week for the period from I July 2018 to the date of any relevant judgment, subject to any residual earning capacity, I find that he would be entitled to recover past loss of earnings of $1,000 net per week for the period from 1 July 2018 to the date of assessment of damages.

Future loss of earnings

The only issues not agreed between the parties in relation to future loss of earnings were identified by the parties themselves as being: 1. whether Mr Davies would have worked for a further 14.5 years or only 14 years (both from about 30 May 2019); and 2. the percentage to be applied for vicissitudes should be 15% or 30%, on the evidence.
As noted above, I accept Mr Davies's evidence that he intended to work at the Whitehaven colliery near Narrabri till retirement and he had been told, in 2010, that there was likely to be work at that mine for 25 years. Mr Davies was born on 28 January 1967. In the light of the parties' competing contentions that he would work for either 14 or 14.5 years from about 30 May 2018, Mr Davies's consistent work history prior to 2 June 2011 and his expressed intention to continuing working till retirement, it should be accepted that Mr Davies would have worked for a further 14.5 years from 30 May 2019, that is until 30 November 2033.
As to the discount for vicissitudes or contingencies, in respect of future loss of earning capacity, the parties framed the issue as a choice between 15% and 30%.
It is well established that in an award of damages for future economic loss, account must be taken of the contingencies or vicissitudes which may affect a particular plaintiff's earning capacity: Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53 (Wynn), State of NSW (NSW Police) v Nominal Defendant [2009] NSWCA 225 at [95]. In Wynn, Dawson, Toohey, Gaudron and Gummow JJ held at [19]: "It is to be remembered that a discount for contingencies or "vicissitudes" is to take account of matters which might otherwise adversely affect earning capacity and as Professor Luntz notes, death apart, "sickness, accident, unemployment and industrial disputes are the four major contingencies which expose employees to the risk of loss of income". Positive considerations which might have resulted in advancement and increased earnings are also to be taken into account for, as Windeyer J pointed out in Bresatz v Przibilla, "(a)ll 'contingencies' are not adverse: all 'vicissitudes' are not harmful". Finally, contingencies are to be considered in terms of their likely impact on the earning capacity of the person who has been injured, not by reference to the workforce generally. Even so, the practice in New South Wales is to proceed on the basis that a 15% discount is generally appropriate, subject to adjustment up or down to take account of the plaintiff's particular circumstances."
In Nestle Australia Ltd v McDougall [1998] NSWCA 158 (Nestle), Beazley JA (Mason P and Powell JA agreeing) noted that a survey of the authorities revealed that the Court had applied discounts of up to 40% for vicissitudes, although in NSW Insurance Ministerial Corporation v Sprengnagel [1995] NSWCA 315 a 40% discount was described as "high". Nestle emphasised that whether or not the "usual discount" of 15% should be applied depended upon the facts of the particular case.
Mr King SC for Whitehaven submitted that an allowance of more than 15% was called for in Mr Davies's case. He drew attention to Mr Davies's other health problems, on which he had cross-examined Mr Davies and which I accept. It was submitted that work in a mine was hard and it might be inferred that he would not be able to continue full-time work as an underground coal miner for as long as he intended. It seems to me that there is some force in those submissions. What must be weighed against that, however, is the fact that Mr Davies was given an indication when he started at Whitehaven colliery that there would be work there for 25 years. The discount for vicissitudes takes into account, among other things, the fact that employment is often less than fully secure and an employee may face periods of unemployment in the future. The assurance Mr Davies received reduces, in my view, the risk of insecurity in employment. While it is impossible to be precise about such matters, it appears to me that that factor and the matters to which Mr King drew attention can be seen as effectively balancing one another. Accordingly, in my view the usual discount of 15% for contingencies or vicissitudes remains appropriate.

Compensation payments and Thackham

Compensation payments paid or payable to Mr Davies under the 1987 Act arising out of the injury suffered on 2 June 2011 are subject to s 151B of that Act, in its pre-2001 amendment form which relevantly provided: "(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act: (a) the person then ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and (b) the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation."
Consequently, if Mr Davies were held to be entitled to recover damages in the present proceedings, he would have no entitlement to further payments of compensation in respect of the injury caused on 2 June 2011. Further, the amount of compensation already paid would have to be deducted from the damages to be awarded. This amount can be ascertained and deducted from any award of damages if damages are required to be assessed in the future.
By the time of the increase in symptoms on 8 August 2014 and the injury by way of a further tearing of the rotator cuff on that occasion, Mr Davies had returned to full time, pre-injury duties with Whitehaven. It was not in dispute that, after suffering the second injury on 8 August 2014, Mr Davies did not perform any further work for Whitehaven and received compensation payments under the 1987 Act as a result of what occurred on that date.
When a worker sustains two work injuries and the first occurs in circumstances giving rise to a cause of action for negligence but the second does not, although the second increases the damages recoverable by the worker for the first, s 151B(1) has no direct application in relation to compensation for the second injury: Vanramer Pty Ltd v Higgins (1991) 24 NSWLR 661 (Vanramer) at 670. Thus, Mr Davies would not be precluded by the statutory scheme from claiming compensation in respect of the second injury on 8 August 2014.
In these circumstances, however, an award of damages is required to be assessed on a basis which avoids the possibility of double compensation taking into account future payments of compensation: Birdon Marine Pty Limited v Jepp [2009] NSWCA 147 at [15]-[18]; Vanramer; and Thackham.
The parties have stated their differing positions in relation to the Thackham issue in the "Schedule of Matters Agreed" dated 11 June 2019. They have not, however, had the opportunity to make detailed submissions in support of those positions, by reference to authority or in light of the findings and reasoning set out above.
Further, as to future compensation payable in respect of the second injury, the calculation of the relevant present value of those payments will depend on when they are to be quantified, any change in circumstances that may have occurred between the date of decision and the date of when damages are to be quantified and the applicable rates at the relevant time.
Should the plaintiff be entitled to recover damages for the defendant's negligence in relation to the injury which occurred on 2 June 2011, the parties will be in a better position to provide detailed and properly informed submissions and relevant information or evidence in these regards at the time when damages are to be quantified. Accordingly, I do not propose to make further findings on the Thackham issue at this point.

Quantum summary

In light of the findings made above and if I am wrong and Whitehaven should be held liable for the loss and damage suffered by Mr Davies as a result of the accident on 2 June 2011, the relevant agreed figures and findings in relation to quantum can be summarised as follows: Head of damage Amount Non-economic loss $108,600.00 Past out of pocket expenses $109,558.14 Past wage loss: $40,595.24 2 June 2011 to 7 August 2014 $303,000.00 8 August 2014 to 30 June 2018 $1,000.00 per week 1 July 2018 to relevant date of judgment Past loss of superannuation 11% of total past loss of wages Future loss of earning capacity $1,000.00 per week from relevant date of judgment until 30 November 2033 reduced by 15% for vicissitudes Future loss of superannuation 13.44% of total future loss of earnings Future out of pocket expenses $20,000.00 Deduction for amount of compensation under the 1987 Act paid as a result of the 2 June 2011 injury [Amount to be ascertained by the parties] Deduction for amount of compensation under the 1987 Act paid as a result of the 8 August 2014 injury to the date of calculation of quantum of loss and damage [To be assessed in the light of submissions and evidence at the time when damages are to quantified] Deduction for amount of future compensation under the 1987 Act payable as a result of the 8 August 2014 injury [To be assessed in the light of submissions and evidence at the time when damages are to quantified] Fox v Wood [Amount to be provided by the parties by agreement]

Order

For the reasons set out above, the order of the Court is that there be verdict and judgment for the defendant.

Endnotes

T84.50-T85.8
T60.42-61.28.
T65.16-.19.
For example at T63.42-.44, T64.47-.49, T67.43-.45.
T68.31-.32.
T71.15-.16.
T82.39-T83.4.
T84.3-9.
See for example: T165.41-T167.26, especially the stated inability to comment at T167.26, in the light of the preceding questions and answers; T154.25-T159.27; T159.29-.47; T162.40-T163.9 which was inconsistent with Mr Davies's evidence that he did have three points of contract; and compare the comments concerning underground diesel bays at T157.10-.24 with the comments at T169.10-.17.
See generally T177-179, T184.5-.19, T186.8-.46.
Based upon the Schedule of Matters Agreed signed by counsel for the parties and dated 11 June 2019. 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: 30 August 2019

Coal Mines Health and Safety Regulation 2006(NSW)

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