Duffin v Mount Arthur Coal Pty Ltd - [2020] NSWSC 229 - NSWSC 2019 case summary — Zoe

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Duffin v Mount Arthur Coal Pty Ltd

[2020] NSWSC 229

Supreme Court of NSW|2019-03-29

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-03-29

Catchwords

TORT - Negligence - Breach of duty - Liability - Plaintiff injured while driving a grader on a coal mine haul road - Whether the injury occurred due to collision with a lamination or a windrow

Source

Original judgment source is linked above.

Catchwords

TORT - Negligence - Breach of duty - Liability - Plaintiff injured while driving a grader on a coal mine haul road - Whether the injury occurred due to collision with a lamination or a windrow

Judgment (84 paragraphs)

[1]

Judgment Witnesses Background - pre-accident history Employment at Mount Arthur Coal Mine How did the accident occur on 6 March 2013? The confidential report prepared by the defendant Conversations between the plaintiff and Mr Seabrook after the accident Post-accident Evidence the defendant says supports its version of events Mr Freeman's evidence and medical report Factual findings on liability Liability Provisions of the Work Health and Safety Act The plaintiff's experts' evidence on liability Did the defendant provide and maintain a work environment without risks to health and safety? (a) Reasonable practical preventative measures of obviating such a risk (b) Was there reasonable care? Contributory negligence The defendant's submissions The plaintiff's submissions Consideration The plaintiff's health and employment after the accident Return to office duties Termination of employment Back and right hip injury symptoms Treatment Psychiatric injury Video surveillance The plaintiff's credibility Medico legal assessments The orthopaedic surgeons The reports of orthopaedic surgeons Drs Hopcroft and Millons The joint orthopaedic report The psychiatrists' reports Dr Samson Roberts' report dated 15 October 2015 Dr Samson Roberts' report dated 1 March 2017 The psychologists' joint report Assessment of damages General principles Statistical information Non-economic loss The plaintiff's submissions The defendant's submissions Consideration Economic loss Past economic loss The plaintiff's evidence The plaintiff's submissions The defendant's submissions Consideration Future economic loss The plaintiff's submissions The defendant's submissions Consideration Fox v Wood Past and future loss of superannuation Past out of pocket expenses Future out of pocket expenses General practitioner, psychologist and psychiatrist Medication Annual services Further hip surgery Consideration Future equipment Items of future equipment in dispute Consideration Future occupational therapy expenses Hydrotherapy Past and future domestic care Past domestic services The plaintiff's evidence The plaintiff's submissions The defendant submissions Occupational therapists' joint report - Ex D Consideration (1) First phase - 6 March 2013 to 30 November 2013 (2) Second phase - 1 December 2013 to 18 February 2015 (3) Third phase - from 19 February 2015 to date of judgment Future domestic assistance Judgment Costs

[6]

How did the accident occur on 6 March 2013?

Liability is strongly in dispute. The critical issue to determine is whether the Cat 24 grader ("the grader") driven by the plaintiff hit a "lamination" or a "windrow". A grader is a large motorized construction machine.
It is the plaintiff's case that she suffered her injuries on 6 March 2013, when a grader she was driving on Lambs Lane struck a lamination and threw her around in her seat. In short, a lamination is a breakdown of any road surface (T 167.39-48), including a pothole, pile of dirt or rock (T 242.43-46). More technically, a lamination occurs where a road has gradually built up with sheeted gravel and clay material. As laden trucks - some of them 400 tonnes - traverse over these roads, particularly in wet weather, the material lifts and layers of material tend to delaminate. This delamination can cause holes to form in the hall roads, depending upon whether the material is soft or hard (T 286.19-25). If the plaintiff suffered her injuries when the grader struck a lamination, then the unchallenged expert evidence leads to the conclusion that the defendant was negligent.
However, it is the defendant's case that the plaintiff suffered her injuries when the grader struck a "windrow". A windrow is an earthen embankment. It is half the height of the wheel of the largest truck on site, and exists to prevent vehicles from going over the side of a road (T 164.18-25). If the plaintiff suffered her injuries when the grader struck a windrow, then the unchallenged expert and other evidence leads to the conclusion that the defendant was not negligent, and the accident was the plaintiff's own fault.
The plaintiff's evidence of how the injury occurred is as follows.
On Wednesday, 6 March 2013, the plaintiff was rostered to work the night shift at the mine on the grader (T 228.47). Her shift commenced at 6.30 pm and was scheduled to finish at 6:40 am.
At the pre-shift meeting, the plaintiff had a conversation with David Seabrook, the Open Cut Examiner ("OCE"). Mr Seabrook told the plaintiff that she was to pick up the grader located at a part of the pit known as "Crib Hut 8" and grade a drill pattern at the bottom of Snake Gully. Crib Hut 8 is situated on the south side of the pit. The plaintiff drew two diagrams of the route (Exs 7 and 8). A topographical map shows the Mount Arthur Site Plan as at 5 March 2013 (Ex 6). Exhibit 6
When the plaintiff went to start her shift, she received a message from Mr Seabrook over the private two-way radio. Mr Seabrook instructed the plaintiff to grade the drill pattern not at the bottom of Snake Gully, but at another part of the pit called McLeans Hill. McLeans Hill is on the north side of the pit and is approximately 8 kilometres by car from Crib Hut 8.
In cross examination, the plaintiff gave the following evidence regarding the weather conditions on the night of the accident (T 249.30-50; T 250.1-10). She agreed that the pit had just recovered from extensive wet weather. When asked about whether the weather had affected the area where she was driving on the night of her accident, the plaintiff stated that the road had dried and trucks were running on it. As far as she could see, the road surface appeared to be normal. She agreed that if she had gone too close to the sides of the road, she would have run a risk of striking the parts of the windrow which stuck out onto the roadway. As stated, her evidence was that she did not strike a windrow.
As instructed by Mr Seabrook, the plaintiff drove the grader from Crib Hub 8 past an area known as "Combustion Dump 1", down onto a road known as the A-Road, and then onto Lambs Lane.
Shortly after she had driven onto Lambs Lane, the plaintiff had a mechanical issue with the grader. She pulled off Lambs Lane into a "safe stopping area", from which she called Mr Seabrook on the two-way radio and reported the problem. The plaintiff remained stationary for approximately one hour while mechanics arrived and repaired the grader. Once the grader was repaired, she recommenced driving along Lambs Lane towards McLeans Hill. She said that when she re-entered Lambs Lane, the grader was operating normally.
The plaintiff drove along Lambs Lane for approximately 3 kilometres and approached an intersection with a road known as Red Rock Ramp.
The plaintiff gave evidence that it was pitch dark. Describing the scene, she said, "The only lights you can see are if you drive onto a dump, you see the dump light. If you drive down to a digger or a shovel you see their light, or other vehicles' lights. Not necessarily vehicles' lights, not necessarily graders' lights, you see other truck lights." There was no stationary fixed lighting in this particular area. The only light came from the vehicles that might happen to be on the road. The lights from the plaintiff's grader were on (T 17.35-50).
At about 8.00 pm, the plaintiff was travelling along Lambs Lane. It was dark and she was using the grader's headlights to illuminate the surface of the lane as she drove along. She was not using the grader's work lights, which illuminate under the grader, because she had been instructed to use headlights when driving from point A to point B within the pit.
As the plaintiff was travelling on Lambs Lane approaching the intersection with Red Rock Ramp, she was driving at approximately 50 kilometres per hour. She knew that area of the pit was a "give way" section, meaning vehicles had to give way to larger vehicles as they approached from the left.
There is a hierarchy of vehicles that operate within the mine. The largest are vehicles known as "floats". Next are trucks, followed by ancillary equipment including graders, dozers, pushcarts and loaders. The lowest-ranked vehicles are light vehicles, which are four-wheel-drive vehicles used for transporting personnel and small pieces or equipment around the mine. Under this hierarchy, a grader such as the one the plaintiff was driving would be required to give way to all other vehicles except light vehicles. The plaintiff was taught that the reason vehicle operators were to give way to the left was because truck drivers could not see out of the right-hand windows of their trucks.
As the plaintiff approached the intersection, in accordance with her usual practice, she began to move the grader further to the left-hand side of the road. As she was travelling on Lambs Lane, she was also aware of the danger of larger trucks coming up behind her and not seeing her grader.
As she drew closer to the intersection, the plaintiff decreased speed so that she was travelling at approximately 20 kilometres per hour. She steered the grader as far to the left as possible. On the left-hand edge of Lambs Lane was a windrow made of dirt, which had been created to stop vehicles from breaching the area and going over the high wall. The windrows were constructed by dozers pushing dirt into a pile and then flattening the top. The presence of the windrow prevented her from moving too far to the left.
From her position approaching the intersection of Lambs Lane and the Red Rock Ramp, the plaintiff knew that there was a combustion dump situated on the right of Red Rock Ramp. A digger and shovels were located to the left. The plaintiff also knew that Red Rock Ramp could be busy with large trucks transporting coal and/or dirt to the combustion dump. Because the trucks weren't outfitted with brakes, they struggled to maintain a grip on the road in wet conditions. The trucks were fitted with retarders so that if the truck wheels lost grip, the wheels would lock and slide until the truck regained control.
In order to see if it was safe to enter Red Rock Ramp, the plaintiff twisted in her seat to look up and down the road. She also tried to look behind her to see if there were any vehicles approaching from behind.
The roads within the pit were unsealed and topped by a smooth dirt surface. After wet weather when roads have been damaged, they are scraped by dozers so they can dry out and allow trucks to run without problems. The graders usually grade piles of dirt called "fines" into the middle of the road. Once these piles are dried, they are graded back over the road to make it smoother. The reason the scrapings are placed in the middle of the road is so that the graders can grade the fines to both edges of the road.
In accordance with her usual practice, the plaintiff did not expect to find a pile of dirt on the left edge of the road. She expected any pile of dirt to be in the middle of the road.
When giving evidence, the plaintiff explained that the trucks are big enough to drive over a pile of dirt without even being jolted. The smaller light vehicles can maneuver around the piles. The plaintiff expected to find a flat - although not necessarily smooth - surface on the left-hand edge of Lambs Lane.
The plaintiff says that she did not see the lamination she hit because she was twisting in her seat checking for other vehicles, and also because it was night. She only felt the lamination when she hit it and was jolted up and down. She immediately felt pain in the lower left-hand side of her back. During cross examination, the plaintiff stated that she was jolted in her seat five times (T 19.44-45).
After she had struck the lamination, the plaintiff continued through the intersection and drove to the McLeans Hill drill pattern. Once she had arrived inside the drilling area and the grader was stationary, she called Mr Seabrook. As best she can recall, she and Mr Seabrook had the following conversation: "Plaintiff: You need to come down and see me. David Seabrook: I am coming down to the drill pattern. Wait there for me and I will come and see you. Plaintiff: Okay. Please come and see me straight away."
The plaintiff parked the grader in front of the drill, got out and spoke to a fellow colleague, Andrew Ellis. She experienced a great deal of pain when she was attempting to get out of the grader. As best she can recall, she said to Mr Ellis: "Plaintiff: Fuck, I've hurt my back. Andrew Ellis: What happened? Plaintiff: I hit a big pile of lamination up on Lambs Lane. Andrew Ellis: Oh, fuck, are you alright? Plaintiff: No fucking way, I'm not. Seabo is on his way down."
When Mr Seabrook arrived at the drill, he said words to the following effect: "David Seabrook: What's going on? Plaintiff: I've hurt my back in the grader. David Seabrook: What happened? Plaintiff: I was driving along Lambs Lane before the Red Rock intersection. I was twisting to look up the ramp and I hit a lamination on the road. David Seabrook: Are you all right or not? Plaintiff: No, I'm not David Seabrook: I think we should get you up to First Aid. Plaintiff: Yes, I think so because I have really hurt myself."
Mr Seabrook then drove the plaintiff in the light vehicle. On the way to first aid, Mr Seabrook swapped vehicles with Chris Bags, who drove the plaintiff the rest of the way. The plaintiff says the drive back from the drill at McLeans Hill to first aid at deployment was very bumpy and caused her to experience even more pain in her back.
When the plaintiff arrived at first aid, Mr Bags had to help her get out of the light vehicle, as she was in too much pain to get out unassisted. She asked Mr Bags to get her some Panadol. He gave the plaintiff two of his own Panadol, as the first aid room did not have any. He helped her up onto a bed.
Mr Bags administered ice treatment on and off for 15 minutes at a time for an hour. He then returned to work and left the plaintiff in the first aid room to rest. Throughout the night, Steven Hansen, first aid officer, and Mr Seabrook came to check on her.
The plaintiff understood that Mr Seabrook had completed an incident report in respect of her injury. Anthony Margetts, the mine manager, came and saw her at about 6.20 am on 7 March 2013, just as she was getting up. They had the following conversation: "Anthony: How are you Gemma? Plaintiff: I have hurt my back. Anthony: Yes I saw that in the report. Are you in a lot of pain? Plaintiff: Yes I'm in a bloody world of hurt. Anthony: Are you leaving now? Plaintiff: Yes."
Mr Margetts then picked up the plaintiff's crib bag and carried it out to the ladies' bathhouse. He handed it to the plaintiff and said, "Hopefully I will see you tonight, and I hope the pain gets better."
The plaintiff needed assistance to get changed. She then got into a share work car with two other mine employees. She had to lie down in the back of the car on the way home, as sitting up caused her too much pain. She could barely walk. She says that when she tried to sleep when she got home, she could only sleep for a couple of hours because the pain was so terrible.
The plaintiff's evidence that she suffered her injuries when the grader struck a lamination, jolting her up and down in her seat five times (T 23), is consistent with her evidentiary statement (Ex B(i), tab 2.1 page 22). There, she stated: "As I twisted in my seat, I hit a 'lamination' which was located near the windrow that formed the edge of Lambs lane."
It was also consistent with her updated evidentiary statement (Ex A, [35]-[42]); her oral evidence (T 19.40-24.5); her telephone interview with the liability experts on 25 January 2016 (Ex B(i), page 57, [54]-[55]); notes of Muswellbrook Physiotherapy (Ex B(i), pages 322-323) stating, "In grader last night - hit laminations"; and notes of Aberdeen Surgery on 11 March 2013 (Ex F, page 32) stating, "Hurt her back at work on Wednesday on grader, she was just driving, hit lamination in road."
There are also two claim forms that were signed by the plaintiff on 11 March 2013 (Ex B(i), pages 33-35) and an event report (Ex B(i), page 37), all of which state that the plaintiff hit a lamination on the road.

[7]

The confidential report prepared by the defendant

The defendant prepared a confidential report of the plaintiff's accident. It was jointly authored by Mr Seabrook, who was the investigation supervisor, and Frank Botha, the investigation auditor. It contains a brief description of the accident stating that the plaintiff stated that while crossing the Lambs Lane/CD3 Dump intersection in grader 086, she hit a lamination in the road causing pain in her lower left back that intensified after 15 minutes. Under "Immediate Actions Taken", the report states that the plaintiff was taken to first aid for ice treatment for the remainder of the shift, and that a grader was called to repair the road where the injury occurred (Ex B(i), page 37).
The confidential event report (Ex B(i), pages 37 and 38) relevantly reads:

Mt Arthur Coal - NEC Confidential Event Report: MACEV13030042

… Brief Description: Operator stated that whilst crossing the Lambs Lance/CD3 Dump Intersection in Grader 086, the Grader has hit a lamination in the road causing pain in the lower Left Back of the operator that intensified after 15 minutes. Immediate Actions Taken: Operator was taken to First Aid for RICE Treatment for remainder of shift. Grader was called to repair the road where the injury occurred. Significant Incident and Fatal Risk Information: Most involved FRCP: Mobile Equipment Zero Barrier Event? No Repeat Event? No External Reporting: Prim Accountable: Employee Potential Impacts: x Safety x Health Environment Community

Details of Involved Items:

PEOPLE INVOLVED Person Involved: Duffin, Gemma Employment Type: Employee Contractor Co: Production Employee (B Crew) - Shovels - MAC Severity: Lost Time Case (Cl) Role: Other/Multiple Mechanisms Employee ID 20026305 Mechanism of Injury: Surface Mobile Equipment Costs: 0.00 AUD Object Causing Injury: Operating Equipment/Machinery Activity performed:

[8]

… INVESTIGATION FINDINGS Investigating Supervisor: Seabrook, David Investigation Auditor: Botha, Frank Long Description Roadway in the area was somewhat damaged due to the recent wet weather. A Grader was immediately called to fix the area. The operator attended Physio the next day and presented for her next shift. Operator however was not able to attend work for the next shift after days off and was managed by Kristy Euler.

Analysis Process: Absent or Failed Defences DF10:DF10 Hazard Identification … Response: Absent/Failed Details: As it was at night time, the operator failed to see the hole in the road and therefore drove through it. DF98:DF98 Other Absent/Failed Defence Response: Absent/Failed Details: Other operators using the area also failed to notice the hole in the road and therefore the hazard remained. Individual/Team Actions IT12:IT12 Hazard Recognition/Perception Response: Error or Violation Details: Other users in the area also failed to note/have the hazard repaired IT98:IT98 Other Individual/Team Action Response: Error or Violation Details: Other users in the in the area also failed to note/have the hazard repaired Task/Environmental Conditions TW05:YW05 Abnormal Operation Situation or Condition Response: Contributor Details: The pit in general had just recovered from extensive wet weather. Some roads were still somewhat a little weather affected. TW23:TW23 Surface Gradient/Condition Response: Contributor Details: The roads were still somewhat weather effected after heavy rainfall.

The defendant submitted that the weight to be given to a representation recorded in a business record is only ever as good as its source. Section 69(2) of the Evidence Act 1995 (NSW) requires perception of the event recorded: see Lithgow City Council v Jackson (2011) 244 CLR 352. As such, the report provides evidence of nothing more than that the plaintiff said she hit a lamination. Furthermore, the defendant's business record indicating that a grader was sent to grade the roads is not an admission of guilt, but rather an indication that the defendant was aware by reason of the wet weather that the roads may have been in a state of disrepair requiring grading. It is a neutral piece of evidence. The defendant submitted that there is no business record which indicates that there was found to be a lamination.
I disagree. The investigation report records the events of the accident. The information it contains is consistent with the plaintiff's version of events and her previous conversations with her supervisor, Mr Seabrook. He is one of the authors of the confidential event report. The report noted that the roadway was somewhat damaged due to the recent wet weather. More significantly, the report stated that the operator of the grader (the plaintiff) failed to see the hole in the road and drove through it, and that the immediate action taken was to call a grader to repair the road where the injury occurred. It further stated that other operators using the area had also failed to notice the hole in the road, which is why the hazard remained.

[10]

Post-accident

At about 1.00 or 2.00 pm on the day of the accident, Mr Seabrook called the plaintiff as she was recovering in her home. The plaintiff recounted their conversation as follows: "David Seabrook: G'day Gemma, how are you going? Plaintiff: Not very good, I'm still in a lot of pain. David Seabrook: Okay, we need you to go and see Sean Henderson at Muswellbrook Physiotherapy. Plaintiff: Okay. No worries. David Seabrook said: Your appointment is not until 5.30 or 5.45."
The plaintiff then saw Mr Henderson, who suggested that she should not go to work. Mr Henderson told her that she had a muscle strain and that the pain would improve after some rest. Despite Mr Henderson's advice, the plaintiff decided to go to work because she did not have a doctor's certificate.
The plaintiff arrived at work at approximately 6.40 pm and went to see Mr Seabrook in his office. He suggested that she go home. The plaintiff recounted their conversation as follows: "David Seabrook: How are you going? Plaintiff: Not real good at all. David Seabrook: Did you go and see Sean?" Plaintiff: Yes I did. He thinks it's a muscle strain and it will hopefully get better with rest. David Seabrook (in a joking manner): You're fucked, what are you going to do? Plaintiff: I'm in so much pain at the moment I have no fucking idea."
Mr Seabrook then called over Steve Nichols, with whom the plaintiff had the following conversation: "Steve Nichols: Do you reckon you can stay at work and just hang around in the crib hut? Plaintiff: Nico, I'm in that much pain I can't sit, I can't stand, what the fuck am I going to do here all night? Steve Nichols: Oh all right, you might as well go home. I'll write it in my report."
The plaintiff was able to rest over the weekend, as she was rostered off work. She took some Tramadol. The plaintiff returned to work on Monday. Although she had spent all weekend resting, she was still in excruciating pain.
When the plaintiff arrived at work on Monday morning, she was in substantial pain. She saw Mr Seabrook, who said, "You've got to see Christie Yeuller. I've sent her an email telling her what happened."
At approximately 7:30 am, Ms Yeuller saw the plaintiff and said, "I've seen the email from David Seabrook. I'm just trying to organise a meeting with the OCE and the Superintendent. Just stay here and get as comfortable as you can."
Between 9.00 am and 1.00 pm, the plaintiff met with Ms Yeuller, Mr Seabrook and Frank Botha and told them what had happened to her. "David Seabrook: Yeah that's what I put in my report. Christie Yeuller: We should get her to the doctor."
On 11 March 2013, the plaintiff completed an employee's compensation claim form. Under the heading "What Happened", the plaintiff wrote, "Whilst driving drill prep grader, I hit lamminations [sic] in the road + was jolted up + down" (Ex B(i), page 33).
On 12 March 2013, in the accident/incident form completed by Mr Seabrook as the plaintiff's supervisor, he described how the incident as follows: "Operator stated that she has driven over a lamination in the road on the Lambs Lane, CD3 Dump intersection causing pain in her lower left back that intensified after 15 minutes." (sketch omitted)
It is convenient that I record here that the defendant did not provide an affidavit of Mr Seabrook or call him to give evidence. While Mr Seabrook no longer works with the defendant, he was able to be located at the time of the trial (Aff Jessica Boatwright, 9/9/2019). The defendant provided no explanation for his absence. The plaintiff submitted that a Jones v Dunkel (1959) 101 CLR 298 inference should be made against the defendant.
In Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 ("Hellicar") at [166], the High Court reaffirmed the principle flowing from Lord Mansfield's dictum in Blatch v Archer (1774) 98 ER 969 at 970 that "[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted."
The decision in Jones v Dunkel was described as "a particular and vivid example" of how such principles may be used. The Court in Jones v Dunkel at 308 per Kitto J held that: "….any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence."
In Fabre v Arenales (1992) 27 NSWLR 437, Mahoney JA (with whom Priestley and Sheller JJA agreed) stated at 449: "…the significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so."
Not only has the plaintiff given evidence of contemporaneous conversations with Mr Seabrook both before and after the accident as to what happened, Mr Seabrook also completed the injury form and the confidential event report. His evidence is critical in substantiating the plaintiff's case. It is my view that this Court can comfortably draw a Jones v Dunkel inference that Mr Seabrook was not called because the defendant feared to do so. I accept that the plaintiff's versions of the conversations are true.

[12]

Mr Freeman's evidence and medical report

Mr Freeman is the plaintiff's psychologist. In his handwritten clinical records dated 19 July 2015 (Ex 10), he recorded, "Travelling grader, twisted in seat, hit hard edge of windrow (Mt Arthur Coal). Jolt caused constant back pain."
The defendant submitted that this is a candid, yet precise and accurate description of what occurred. It is consistent with other evidence volunteered by the plaintiff that she was keeping to the left as much as possible.
Mr Freeman gave evidence and was cross examined via telephone link. He stated that he had been more interested in the plaintiff's psychological situation than how the accident occurred. He gave the following evidence (T 415.44-52): "Q. I take it that this would be an important part of your clinical practice because these notes would serve you, at a later point in time, if you needed to refresh your memory about what you'd been told previously? A. Sure, and if it has anything to do with psychological situation that would certainly be true but just to clarify. As far as the account of a particular incident goes, I wouldn't be too worried if I got any of that wrong because I don't refer to it like that. I'm only referring to people's psychological injury, their diagnostics and their treatment. If I wanted a report of the accident itself, I'd get one from the expert."
Senior Counsel for the defendant asked Mr Freeman about an entry he made in his handwritten notes as to the plaintiff's explanation of how the accident occurred (T 419.22-44). Their exchange is as follows: "Q. On the third line of the entry commencing 'Travelling grader', do you see that? A. Yes. Q. After the second comma you've written, 'Hit hard edge of windrow'. Do you see that? A. Yes. Q. That records, doesn't it, something that Ms Duffin said to you? A. That's what I've written down but I'm not too sure whether I've accurately written down everything she said. I mean I've tried a long explanation and it's finished up, I've only written down about ten words. I'm sure I didn't capture everything. Q. But you don't have any doubt, do you, that she said to you that she hit the hard edge of the windrow? A. I'm not too sure whether that's exactly what she said. She said she hit something, she probably mentioned windrow but she mentioned a number of different technical terms which I know nothing about so I wouldn't swear that I've got it down correctly. Q. Windrow, you would regard as a technical term. Is that correct? A. Well, I don't know what it means."
In re-examination, Mr Freeman was asked if the plaintiff could have said something along the lines of, "As I was twisting in my seat, I hit a lamination which was located near the windrow that formed the edge of Lambs Lane." Mr Freeman replied, "Quite possibly" (T 420.13-19).
In cross examination, the plaintiff denied that she hit a windrow (T 238.46-49). She also denied on three occasions that she told Mr Freeman that she hit "the hard edge of the windrow" (T 239.2; T 248.5; T 251.30).
The defendant also referred to what Dr Bentivoglio recorded in his medical report on 6 October 2015, where he stated, "[she] ran into a mound of dirt, probably two to three metres high". According to the defendant, this entry helps to corroborate the history given to Mr Freeman, so that neither can be considered mis-recordings. The defendant submitted that each account corroborates the other in important respects. Both entries are consistent and point unequivocally to the height of a windrow, described by the plaintiff in her evidence as being half the height of a truck's wheel.
In Mason v Demasi [2009] NSWCA 227 ("Demasi"), the trial judge was invited to discount the appellant's oral testimony on the basis of accounts she gave to various health professionals, which appeared inconsistent with either each other, her oral testimony, or both. In Demasi, Basten JA stated at [2]: "[2]… The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Husey in [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others: (a) the health professional who took the history has not been cross-examined about: (i) the circumstances of the consultation; (ii) the manner in which the history was obtained; (iii) the period of time devoted to that exercise, and (iv) the accuracy of the recording; (b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings; (c) the record did not identify any questions which may have elucidated replies; (d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and (e) a range of factors, including fluency in English, the professional's knowledge of the background circumstances of the incident and the patient's understanding of the purpose of the questioning, which will each affect the content of the history."
In my view, Mr Freeman's evidence establishes several things. Firstly, he was not too worried about how the accident occurred, as his focus was upon the plaintiff's psychological condition, diagnostics and treatment. Secondly, he was not sure what exactly she said; he stated that he did not know what a windrow was. Finally, it is quite possible that the plaintiff gave him her version of events.
I accept Mr Freeman's evidence and find it logical, considering he took the history while focusing upon the plaintiff's psychological condition, rather than how the accident itself occurred. On the balance of probabilities, I make a finding that his recording of the accident is not accurate. Dr Bentivoglio was not cross examined on Mr Freeman's recording of the accident in his medical report dated 6 October 2015. In any event, Dr Bentivoglio's recorded version of events differs from the version recorded by Mr Freeman. As they were each made nearly two and half years after the accident, they are nowhere near as reliable as the contemporaneous records referred to earlier in this judgment.
The defendant also drew attention to the plaintiff's evidence that she did not see what she hit (T 24.18). She said, "[I] hit something that I knew wasn't a rock."
However, it is important to consider this statement in context. The exchange that occurred is as follows (T 24.8-35): "Q. …You've said to Mr Ellis that you hit a lamination, and I asked you why you said that, and you said you believed that's what had happened? A. Yeah. Q. And then I was asking you what it was that made you believe that? You didn't see it. You didn't say you saw it? A. No, I didn't. Q. What made you believe that that's what you hit? A. Well, I hit something that I knew wasn't a rock. Q. Yes? A. I knew it wasn't a light vehicle. Q. Yes? A. I knew that it wasn't anything that I could see. It was the same - when I looked down, because there's - it's glass all the way down through to your the bottom of your floor of your grader; when I looked down, I couldn't see anything, so I believed it was the same colour as the dirt on the ground, cause everything's just dirt. Q. Right? A. So, I thought, well, it's a breakdown in the road surface that is a dirt colour, the same as the lamination. Q. That's what you believe caused this violent jolting? A. Yes, I do."
The defendant referred to the plaintiff's statement that as she drove the grader, she moved it closer to the left-hand windrow. At that point, the plaintiff was looking to the right up Red Rock Ramp, and not over her right shoulder. She agreed that when she checked her mirrors to see what was coming behind her, she did so only momentarily (T 238.14-40).
The defendant asserted that the facts show that the plaintiff does not know what she struck. She did not see it. The defendant submitted that there is cogent evidence establishing that she hit a pile of dirt.
The defendant further submitted that it is significant that the histories that the plaintiff gave to Mr Freeman and Dr Bentivoglio match instructions the plaintiff gave to her lawyers as to how the accident occurred. Paragraph [13] of the statement of claim was amended to delete the words, "a pile of dirt that had been left", and replaced with the word, "lamination". According to the defendant, the amendment reveals a belated recognition of the plaintiff's collision with an earthen windrow. The plaintiff also gave instructions to the liability experts that the accident occurred as follows: "(t) The accident occurred at approximately 8 pm. (u) As the plaintiff was twisting in her seat, she hit what was described by her as a pile of dirt which was located next to a windrow. The plaintiff instructs that it appeared someone had pushed the dirt towards the windrow but had not pushed it right up against the windrow. The plaintiff instructs that since she was twisting in her seat checking for other vehicles, and the fact that it was night, she did not see the dirt. The plaintiff instructs that she felt the rear left tyre hit the pile of dirt. (v) When the plaintiff hit the pile of dirt, she was jolted up and down in her seat repeatedly. The plaintiff immediately felt pain in the lower left side of her back. The plaintiff knew right away that she had been hurt."
I do not accept that the plaintiff gave this description to the experts. When David Cockburn and Jason Wagstaffe asked the plaintiff how the accident occurred, she informed them that when she was twisting in her seat to look for other vehicles in case she had to give way to them, she hit a lamination upon the road surface with her left-side rear wheels. She said it was night and she did not see the lamination. The plaintiff told the authors that the contact with the laminated road surface caused her seat to bottom out twice, jarring her back as both wheels interacted with the laminated road surface. The experts contemporaneously recorded the plaintiff's statements via Dragon Dictate.

[14]

Liability

Liability is 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, which relevantly reads: "3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: … (f) civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies--the whole Act (other than Part 1B), …"
Part 1B of the Civil Liability Act is not relevant in the present case.
Liability in this case relates to an award of damages sought under Pt 5 Div 3 of the Workers Compensation Act 1987 (NSW).
This approach is consistent with authorities including Rail Corporation New South Wales v Donald [2018] NSWCA 82 at [7] (Beazley ACJ, McColl and Meagher JJA agreeing).
An employer owes a personal, non-delegable duty of care to its employees requiring that reasonable care be taken for their safety.
In O'Connor v Commissioner for Government Transport (1959) 100 CLR 225 at 229, the High Court noted that there was imposed upon every employer, a duty to take reasonable care for the safety for employees: "…by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to secure him from danger of injury."
In addition, 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) 214 ALR 349; (2005) 79 ALJR 839 (per Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ) as follows at [12]: "[12] …An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work."
It has been accepted that the content of the ordinary common law duty of care is a duty to exercise reasonable care (and skill) or to take reasonable steps to avoid risk of harm to a person to whom the duly is owed. The degree or standard of care required varies with the risk involved: see Kondis v State Transport Authority (1984) 154 CLR 672.
The plaintiff pleads that the defendant, as her employer, had an obligation to take reasonable care to avoid foreseeable risks of injury arising from her employment. The plaintiff further asserts that the defendant was required to take reasonable precautions to guard against the risk of the plaintiff suffering injury. It is the plaintiff's case that the risk of a person, such as the plaintiff, suffering injury in the circumstances she encountered were foreseeable and not insignificant.
The plaintiff pleads breach of duty and negligence, and provides numerous particulars (at ASC 15-(z)). They read: "15 The Plaintiff sustained injury, loss and damage as a result of the breach of the duty of care owed by the First and Second Defendants, their servants and/or agents, to the Plaintiff, particulars of which are as follows. Particulars of Breach of Duty and Particulars of Negligence: (a) Failing to provide and maintain a safe work environment. (b) Failing to devise, institute, maintain and ensure compliance with a safe and proper system of work. (c) Exposing the Plaintiff to a risk of injury that could have been avoided by the exercise of reasonable care; (d) Putting the Plaintiff in a position of peril in the circumstances. (e) Failing to train or adequately train the Plaintiff in and about the performance of her duties. (f) Failing to warn or adequately warn the Plaintiff as to the inherent risks of working in a Coal Mine. (g) Failing to undertake any proper or adequate risk assessments insofar as the Plaintiff's duties were concerned. (h) Failing to inspect or properly inspect the Coal Mine so as to identify potential risks to the Plaintiff in and about the performance of her duties. (i) Failing to instruct or direct or adequately instruct or direct the Defendant's employees in and about the performance of road maintenance duties within the Coal Mine. (j) … (k) Failing to have in place an effective inspection program as required by clause 15 of the Coal Mine Health and Safety Regulations 2006 (NSW) and particularly clause 15(1)(g) of the Regulation, which required the performance of regular inspections of all safety accessible parts of the coal operation, with the frequency of inspection dependent on the risks present. (I) Failing to have in place an effective surface transport hazard management plan that addressed known hazards associated with the use of mobile plant at the Coal Mine as required by the Coal Mine Health and Safety Regulation 2006 (NSW) specifically addressing the hazards associated with: (i) The safe design of roadways on which the Defendant's transport may operate as required by clause 30(1)(c); (ii) The operation of transport on roadways where the condition of the roadways may adversely affect safety as required by clause 30(1)(h). (m) Failing to comply with s.11 of the Coal Mine Health and Safety Act, 2001 (NSW), which required the Act to be read in conjunction with the Work Health and Safety Act, 2011 (NSW). (n) Failing to comply with the requirements of s.19 of the Work Health and Safety Act, 2011 (NSW) and specifically: (i) Failing to ensure the health and safety of workers, such as the plaintiff; see s.19(1)(a); and (ii) Failing to provide and maintain a work environment that was without risk to health and safety: see s.19(3)(a). (o) Failing to comply with the requirements of Part 3.1 of the Work Health and Safety Regulation 2011 (NSW) which required the Defendant to manage the risk to health and safety and specifically: (iii) Failing to identify reasonably foreseeable hazards that could give rise to a risk to health and safety: see clause 34; (iv) Failing to eliminate risks to health and safety as far as reasonably practicable: see clause 35(a); (v) Alternately, failing to minimize risks to health and safety as far as reasonably practicable: see clause 35(b); (p) Failing to comply with the requirements of clause 8.1 of the Australian Standard AS1470-1986: Health and Safety at Work - Principles and Practices, which required the maintenance of work places so that they are safe and without risk to the health of workers and specifically, clause 8.2.1(a) which required the identification and removal and/or elimination of hazards associated with its operation. (q) Failing to provide and maintain a safe work environment. (r) Failing to devise, institute, maintain and ensure compliance with a safe and proper system of work. (s) Exposing the Plaintiff to a risk of injury that could have been avoided by the exercise of reasonable care; (t) Putting the Plaintiff in a position of peril in the circumstances. (u) Failing to train or adequately train the Plaintiff in and about the performance of her duties. (v) Failing to warn or adequately warn the Plaintiff as to the inherent risks of working in a Coal Mine. (w) Failing to undertake any proper or adequate risk assessments insofar as the Plaintiffs duties were concerned. (x) Failing to inspect or properly inspect the Coal Mine so as to identify potential risks to the Plaintiff in and about the performance of her duties. (y) Failing to instruct or direct or adequately instruct or direct the Defendant's employees in and about the performance of road maintenance duties within the Coal Mine."
The defendant denies negligence and breach of statutory duty, and pleads contributory negligence.

[15]

Provisions of the Work Health and Safety Act

It is convenient that I reproduce ss 18 to 20 of the Work Health and Safety Act 2011 (NSW) here.
Section 18 of the Work Health and Safety Act sets out what is "reasonably practicable" to ensuring health and safety: "18 What is reasonably practicable in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring, and (b) the degree of harm that might result from the hazard or the risk, and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."
Section 19 of the Work Health and Safety Act sets out the primary duties of an employer as follows: "19 Primary Duty of Care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, …"
Section 20 of the Work Health and Safety Act sets out the duty of persons conducting businesses or undertakings involving management or control of workplaces: "21 Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plants at workplaces (1) In this section, person with management or control of fixtures, fittings or plant at a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, of the workplace, but does not include: (a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or (b) a prescribed person. (2) The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person."
I have accepted the plaintiff's version of events and set out my findings. In order for the plaintiff to establish that the defendant is liable, she needs to show: 1. that there was a risk of injury which was reasonably foreseeable; 2. that there were reasonably practicable means of obviating such risk; and 3. that the defendant's failure to eliminate the risk showed a want of reasonable care for the plaintiff's safety.

[16]

The plaintiff's experts' evidence on liability

David Cockbain and Jason Wagstaffe, experts on occupational health and safety and risk management, prepared a joint experts' report dated 28 March 2017 on behalf of the plaintiff (Ex B(i), page 40) and gave concurrent evidence. I accept their evidence.
The following matters are essentially all established by the unchallenged expert evidence of Mr Cockbain and Mr Wagstaffe. In particular, they set out on pages 42-43 of their report (Ex B(i), pages 81-82) the simple steps that the defendant could have taken to make the area safe and avert the plaintiff's injury.
What kind of defect the plaintiff drove over with her grader-be it a pile of dirt, a hole or a lamination in the road - did not make any difference to the experts' opinions. The experts addressed the motion of the grader as follows. The vehicle had a front and rear wheel. As the front of the grader traversed the defect and came down the other side, the movement initiated what the experts called the "first event". Once the rear of the grader passed over the defect, the movement initiated a "second event". Both events would cause the plaintiff's seat to bottom out, and in between the events, the plaintiff would experience a great deal of shaking and jolting. In terms of the events themselves, the experts said there should only be two: the first and second (T 265.25-33). Whether the plaintiff was jolted up and down in her seat repeatedly, or whether the seat bottomed out twice, did not affect the experts' ultimate decision (T 266.10-11). Further, the experts said it would not make any difference to their opinion whether the plaintiff was driving a Cat 24 or a Cat 16 grader (T 267.18).
The experts were asked to answer the following questions (Ex B(i), pages 42-43): "5. What, in your opinion, should the OCE at the defendant's coal mine have done prior to the shift commencing to ensure that the road surface that the plaintiff was working on was safe? 162. It would have been a simple matter for an OCE assigned to the area of the mine where the plaintiff suffered injury to have: • Inspected the haul road prior to the shift commencing while there was still sufficient daylight to visually detect defects within the haul road and issued instructions to address the hazard prior to enabling the haul road to be traversed by mobile plant. • Delineated the hazard using hazard cones, notified all operators of mobile plant, via the defendant's mine site radio that a hazard existed within the intersection of Lambs Lan'e and Red Rock Ramp, and if the hazard was located within part of the intersection that was being traversed by rear dump trucks running between the dump and the production face, stand down the intersection from all mobile plant use (i.e. stop production activities). • Request that a grader be sent to the intersection as a matter of priority so that the hazard was rectified and production activities able to recommence. • Requested that artificial area lighting be provided to the intersection of Lambs Lane and Red Rock Ramp, initially so that the hazard cones placed around the defect in the haul road are visible, and post defect repair so that the road surface, that was subjected to a large number of loaded rear dump trucks, could be observed by all operators of mobile plant required to traverse it. 6. In your opinion, could the defendant have prevented the plaintiff's injury by: a. Correctly managing the roads surface 163. To correctly manage the road surface the defendant needed to have in place an effective and instructive haul road standard that clearly articulated how the road surface was to be designed, constructed, proactively maintained and regularly inspected as required by clause 30 of the Coal Mine Health and Safety Regulation 2006. With respect to this matter: • The haul road surface needed to be constructed from a material that was not subject to laminations after periods of wet weather. • The haul road needed to be regularly inspected during and after periods of wet weather to identify soft spots and laminations such that they could be repaired prior to exposing worker to injurious potential. • The time period between inspections needs to be risk based. That is to so say, the higher the risk the more frequent the inspection. With regards to this matter, the wetter the road, the more frequent the inspection. Wet roads become hazardous very quickly. As roads dry out after wet weather the surface sheeting, if not maintained will laminate and cause pot holes to occur. b. Inspecting the roads properly according to policy 164. The Defendant's Mine Inspection System was not effective and did not provide the instruction necessary to detect the hazard associated with the haul road prior to the plaintiff suffered injury, nor did the defendant's Transport Rules. c. Identifying any hazards and communicating this danger with staff 165. It is clear to the writers that the defendant did not have systems that were effectively able to provide the guidance and instruction necessary for OCEs to identify hazards associated with the hazardous section of the haul road. d. Addressing all hazards on the road to reduce risk 166. See response to previous answer."
At [167] of their report (Ex B(i) pp 83-84), the authors set out seven factors which contributed to the plaintiff's injury. They are: "(a) The failure of the defendant to develop and implement a facilitated risk assessment of the workplace conditions and facilities, the task required of the plaintiff and the system of work utilised for the regular inspection and maintenance of the Lambs Lane haul road in order to identify the hazards and risk of injury to which the plaintiff was exposed. The risk assessment was required in order to meet the defendant's duty of care obligations contained within s 19 of the Work Health and Safety Act 2011 and the requirements of the Work Health and Safety Regulation 2011. The risk assessment should also have taken into consideration the articulated requirements set out in AS/NZS ISO 31000:2009 Risk Management - Principles and guidelines and AS 1470-1986 Health and safety at work - Principles and practices. (b) The failure of the defendant to implement a risk management process for the elimination and/or minimisation of musculoskeletal injuries caused by the jolting/jarring of mobile plant operators; specifically operators of graders. The implementation of a risk management process for the control of musculoskeletal injuries on mine sites could and should have been achieved with the use of the NSW Mine Safety Advisory Council's freely available publication titled Managing musculoskeletal disorders: A practical guide to preventing musculoskeletal disorders in the NSW mining and extractives industry and the Barbara McPhee publication, made freely available through Coal Services Pty Limited, Bad Vibrations - A handbook on whole body vibration exposure in mining. (c) The failure of the defendant in requiring or permitting the plaintiff to operate a grader on a haul road that contained potholes/height differentials which was an inadequate system of work in breach of the defendant's duty of care obligations contained within s 19 of the Work Health and Safety Act 2011. (d) The failure of the defendant to provide effective supervision and monitoring of grader movements on the Lambs Lane haul road in order to ensure that the systems of work adopted for the inspection and maintenance of the haul road did not expose workers to a risk of injury in accordance with the Work Health and Safety Act 2011, s 19(3)(f), the Work Health and Safety Regulation 2011, cl 39(2) and AS 1470-1986 Health and safety at work - Principles and practices, s 6. (e) The failure of the defendant to have in place an effective inspection program as required by cl 15 of the Coal Mine Health and Safety Regulation 2006 (NSW) and specifically addressing cl 15 (l)(g) which requires the conduct of regular inspections of all safely accessible parts of the coal operation with the frequency of inspections being dependent on the risks present. The writers are of the opinion that had an effective inspection been undertaken of the haul road that a qualified and competent Open Cut Examiner would have identified the hazard within the roadway and had the hazard immediately removed or delineated the hazard until such times that it could be removed. (f) The failure of the defendant to have in place an effective Surface Transport Hazard Management Plan that addressed the known hazards associated with the use of mobile plant at the defendant's mine as required by the Coal Mine Health and Safety Regulation 2006 (NSW) and specifically addressing the hazards associated with: (i) the safe design of roadways on which the transport may operate as required by cl 30(1)(c); [and] (ii) the operation of the transport on roadways where the condition of the roadways may adversely affect safety as required by cl 30(1)(h). (g) The failure of the defendant to comply with the requirements of cl 8.1 of the Australian Standard AS 1470-1986 Health and Safety at Work - Principles and Practices, which requires the maintenance of workplaces so that they are safe and without the risk to health and workers, and specifically cl 8.2.1 (a) which requires the identification and removal and/or elimination of hazards associated with the operation."
These matters are also established by the defendant's own records, including its "Mine Inspection System".

[18]

(a) Reasonable practical preventative measures of obviating such a risk

At [168], the experts set out the reasonable preventative measures that could and should have been implemented by the defendant, which would not have involved excessive expense in either their development or implementation. These measures included the following: "(a) The undertaking of an effective and appropriate risk assessment of the workplace conditions and facilities, the task required of the plaintiff and the system of work utilised for the regular inspection and maintenance of the Lambs Lane haul road in order to identify the hazards and risk of injury to which the plaintiff was exposed. The identification and assessment of hazards was required in order for the defendant to comply with the duty of care obligations contained within s 19 of the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2011. The risk assessment should also have taken into consideration the articulated requirements set out in AS/NZS ISO 31000:2009 Risk Management - Principles and guidelines and AS 1470-1986 Health and safety at work - Principles and Practices. The cost associated with this risk control measure is considered procedural in nature and, for the sake of this exercise, the risk assessment has been costed at $150. It is noted that a change in legislation should have prompted the defendant to update the underpinning risk assessment and linked systems. (b) The implementation of a risk management process for the control of musculoskeletal injuries on the defendant's mine site using the process described in Part 9.3 of this report inclusive of Figure 3 and Figure 4. The risk management process should also have taken into consideration the articulated requirements set out in the NSW Mine Safety Advisory Council's freely available publication titled Managing musculoskeletal disorders: A practical guide to preventing musculoskeletal disorders in the NSW mining and extractives industry and the Barbara McPhee publication, made freely available through Coal Services Pty Limited, Bad Vibrations - A handbook on whole body vibration exposure in mining. (c) The development, implementation and embedding of a system of work whereby the Defendant's Open Cut Examiner/Supervisor continuously inspected the Lambs Lane haul road for hazards posed by potholes and height differentials. Continual assessment of the haul road, and specifically the "Lambs Lane"/"Red Rock Ramp" intersection was required due to the fact that the mine had recently experienced a period of wet weather and there was a large number of loaded rear dump truck movements through the intersection placing the intersection at a greater risk of damage. It would have been a simple matter for an OCE assigned to the area of the mine where the Plaintiff suffered injury to have: • Inspected the haul road prior to the shift commencing while there was still sufficient daylight to visually detect defects within the haul road and issued instructions to address the hazard prior to enabling the haul road to be traversed by mobile plant. • Delineated the hazard using hazard cones, notified all operators of mobile plant, via the defendant's mine site radio that a hazard existed within the intersection of "Lambs Lane" and "Red Rock Ramp", and if the hazard was located within part of the intersection that was being traversed by rear dump trucks running between the dump and the production face, stand down the intersection from all mobile plant use (i.e. stop production activities). • Request that a grader be sent to the intersection as a matter of priority so that the hazard was rectified and production activities able to recommence. • Requested that artificial area lighting be provided to the intersection of Lambs Lane and Red Rock Ramp, initially so that the hazard cones placed around the defect in the haul road are visible, and post defect repair so that the road surface, that was subjected to a large number of loaded rear dump trucks, could be observed by all operators of mobile plant required to traverse it. The cost associated with this risk control measure is considered procedural in nature and could simply have been undertaken through the provision of instructions to the defendant's open cut examiners/supervisors that were already allocated on shift. …"
In summary, I make the following findings: firstly, that any matter which was found during an inspection that could affect the safety of persons in the mine, and cannot be controlled, was to be barricaded and brought to the attention of persons working in the area; secondly, that the area could have been barricaded; thirdly, that persons working in the area could have been warned of the hazard; and finally, that artificial area lighting could have been provided at the intersection of Red Rock and Lambs Lane.
All of these actions would have been reasonably practicable means of obviating the risk of injury to the plaintiff.

[20]

Contributory negligence

The defendant pleads contributory negligence, and submitted that this Court should make a finding of contributory negligence of 50%. The plaintiff submitted that this Court would not make a finding that there was any contributory negligence on her part.
Section 151N(1) of the Workers Compensation Act 1987 (NSW) provides that the common law and enacted law regarding contributory negligence applies to an award of damages under the Workers Compensation Act, except as modified by s 151N. There are no relevant modifications by the section for the purposes of this case.
The defendant pleads that the plaintiff failed to keep a proper lookout; failed to keep proper control of the vehicle in which she was travelling; failed to observe the road on which she was travelling; and failed to keep her vehicle off the pile of dirt (Defence to Amended Statement of Claim 4 to (d)).
In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; (1985) 59 ALJR 429 at 494, the High Court determined that with regards to contributory negligence, the just and equitable apportionment of the liability ought be examined as follows: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
At common law, the plaintiff is guilty of contributory negligence when she exposes herself to a risk of injury that was foreseeable and may have been avoided through the exercise of her own reasonable care.

[21]

The defendant's submissions

The defendant submitted that in a single vehicle accident, the focus in apportioning liability should be on the plaintiff's driving, as the surrounding physical conditions are static. The defendant submitted that the following evidence points to significant contributory negligence.
First, the plaintiff was aware of the risk of injury in not driving safely. The plaintiff was aware that she was required to drive appropriately under the conditions.
At the hearing of these proceedings, the plaintiff gave the following evidence (T 166.19-21; 167.1-4): "Q. Is one of the effects that the rain had on the roads that there would be, as one might see on country dirt roads after rain, potholes and other irregularities? A. Yes, there would be irregularities somewhere, yes. … Q: What you've described meant that you knew that before you - if you were asked to drive a grader after a rain event, you knew you would have to drive according to the prevailing road conditions, didn't you? A: Well, you always look out for any irregularities or anything like that, yes."
The plaintiff understood that one of the irregularities in the road could have been a lamination. The plaintiff was aware that she needed to drive her vehicle to take into account the prevailing road conditions, and that she needed to reduce the speed of her vehicle to take into account road conditions that may adversely affect the safe operation of the vehicle.
The plaintiff gave evidence that there could be corrugations in the road (T 167.22-23). She gave the following evidence (T 168.23-27; 169.5-9; 235.39-50): "Q. And speaking for yourself as the operator of a grader and one of the Liebherrs from time to time, that was something, I take it, that you didn't need to be told about because you knew you needed to look out for road conditions and drive according to them? A. Well, as I said, we always look out for road conditions. … Q. And you knew from your time at the mine that whatever was said to you about the road conditions, you, yourself, needed to take responsibility for the driving of whatever equipment you were driving in relation to the road conditions? A. Yes, I took responsibility for the equipment I was driving. … Q. But, of course, the standard operating procedure would be to drive the grader, that you were driving, without colliding with objects, wouldn't it? A. Yes. Q. Thank you for the way in which you answered that as well as the answer. You answered me emphatically, didn't you? A. Yes, I did. Q. Thank you. You answered that way because it would be a matter of ordinary common sense, when you're driving any form of motorised vehicle to ensure that it did not strike objects? A. That's correct."
Secondly, the defendant submitted that on the plaintiff's evidence, the impact with the lamination was such that the plaintiff was jolted in her seat five times in the cabin of her vehicle. That was something that she had not experienced before. The plaintiff gave what the defendant described as "somewhat fanciful" evidence that she could drive over a rock the size of a mini minor and not feel the impact. If that evidence was truthful (and the defendant suggested that it is an example of exaggeration that affects the plaintiff's credibility), then the lamination must have been a huge defect in the roadway. The defendant submitted that the only possible explanation for not seeing such a defect in the roadway must be that the plaintiff was not keeping a proper lookout. Originally, the plaintiff attempted to explain the collision by suggesting that she was at all times looking over her right shoulder. However, the plaintiff's evidence was that her attention was really directed to her left and right as she approached the intersection that she wanted to proceed through. Assuming the plaintiff's evidence that there was a defect upon the road surface is accepted, she drove into and over it without seeing it.
The plaintiff gave the following evidence (T 244.1-7): "Q. And the washouts would leave, rather than the presence of something raised over the road, a hole, or depression in the road? A. Yes. Q. And you don't actually know what it is that the grader struck at the time you were jolted, do you? A. No, I don't. I didn't see it."
The plaintiff also gave the following evidence (T 248.17-21): "Q. You agree it would have been possible for your vehicle if you had driven it close enough to the left to have struck those parts of the windrow that were sticking out? A. If someone had have driven it close enough they would've hit - they could've. I didn't."
And at (T 249.30-50): "Q. Do you agree that at the time of these events, the pit had just recovered from extensive wet weather? A. Could you just ask that again please? Q. Do you agree that at the time of the events in which you were injured, it's correct to say that the pit in general had just recovered from extensive wet weather? A. Well, it'd got up and running throughout the day, yes. Q. Well, will you agree that it would be a fair description to say the pit in general had just recovered from extensive wet weather? A. Yes. Q. …Would it be fair to have described the condition in part this way, that some roads were still somewhat whether affected? A. Well, I can only speak about the roads that I know that I actually travelled on. I can't speak about the other roads in the pit because I know the water cart was operating in some parts of the pit, so I don't know. I can only say what I seen."
According to the defendant, if this was a motor accident case, a finding of negligence in such circumstances would be irresistible. There is no reason for such a finding not to be made in circumstances where the plaintiff has sued her employer.
Furthermore, the defendant submitted that the plaintiff was aware that the road surface may not be pristine by reason of the rain event that had caused the mine to close. One would readily expect in those circumstances that the plaintiff would exercise greater care in observing the very road surface that she intended to traverse. By failing to do so, she greatly contributed to her injuries.

[24]

The plaintiff's health and employment after the accident

After the accident, Christie Yueller drove the plaintiff to Aberdeen to see her general practitioner, Dr Ali. Dr Ali advised the plaintiff to take two weeks off work.
On 26 March 2013, 20 days after the accident, the plaintiff returned to work on light duties. She was required to start work at 10.00 am. She was not given anything constructive to do because her pain was still so severe. The plaintiff had been prescribed OxyContin and Endone for pain relief, but was unable to take it while she was working, both because the medications affected her ability to drive to work and because the mines' policy regarding drugs and alcohol meant that she would be prohibited from driving on the mine if she had taken any form of medication.
On 22 April 2013, while driving to work, the plaintiff fell asleep and her car went off the road and into gravel. The sound of the gravel woke her and she regained control of the car. This episode frightened her and she booked the first available appointment to see Dr Ali.
On 26 April 2013, the plaintiff saw Dr Ali. She told him about the severe pain she was experiencing. She explained that due to Mt Arthur's drug and alcohol policy, she was unable to take medication at work and that caused her to have severe pain while she was there. Dr Ali certified her unfit for work.
In November 2013, the plaintiff returned to work. Her WorkCover certificate restricted her hours for a month to working 3 hours a day 3 days a week. During this time, the plaintiff worked in the office assisting the production team.
Over the next few months, her hours were gradually increased each month. She began working 4 hours a day, 3 days a week, then 5 hours a day, 3 days a week. In March 2014, the plaintiff's hours increased to 8 hours a day, 3 days a week. As her hours increased, the plaintiff's back became increasingly painful.
Due to the pain in her back, the plaintiff was unable to work from 21 until 28 March 2014.
On 29 March 2014, the plaintiff again returned to work. On 15 April 2014, she was working 5 hours a day, 4 days a week. On 29 April 2014, she began working 4 hours a day, 5 days a week. On 25 June 2014, she began working 6 hours a day, 4 days a week. On 22 July 2014, she began working 8 hours a day, 4 days a week. On 15 August 2014, she began working 9 hours a day, 4 days a week.
By August 2014, the plaintiff began to leave the office and go out to the pit and into blast areas acting as a sentry for explosions. Her sentry duties usually took less than an hour. She performed these duties a couple of times per week as required. She also began working in the pit relieving the drill operators when they took brakes, which was referred to as "cribbing". As a relief drill operator, the plaintiff would usually operate a drill for a period of approximately 1.5 hours, and could be asked to relieve between 1 to 3 operators on any given shift, depending on requirements. The role required her to assume control of the drill. The drill was operated via two handheld joysticks and consoles. As a drill operator, the plaintiff could chose to sit or stand whilst operating the drill, which allowed her to manage the required duties. The drill was mobile and the plaintiff was able to stand while driving the drill between individual points within the designated drill pattern.
When the plaintiff was not acting as a sentry or being a relief drill operator, her duties included obtaining drill patterns and paperwork from the main building for the drill operators. Those tasks required her to drive a light vehicle around the pit delivering the drill patterns and paperwork to the operators.

[25]

Return to office duties

The plaintiff continued to work outside in the pit until early December 2014. In early December 2014, she was performing duties as a relief drill operator. The plaintiff received a telephone call from the mine superintendent, Mr Jeff Hanlin. They had a conversation to the following effect: "Jeff: Did I tell you about that meeting you were supposed to go to? Plaintiff: No. Jeff: You have to go to a meeting with Jock Fotheringham. Plaintiff: What for? [The plaintiff was aware that Jock Fotheringham was the head of Health and Safety at the Mine.] Jeff: I don't know. Plaintiff: I'm cribbing out on a drill. Jeff: After you've done that, can you go and see him."
After the plaintiff had completed the crib, she drove a light vehicle back into "town", the area of the mine where the offices were located, and attended the meeting with Mr Fotheringham. In addition to Mr Fotheringham, two other people were present: Dave Ellem, the union delegate, and Michelle Johnson, the back to work officer. They had a conversation to the following effect: "Jock Fotheringham: I want you to change your medical certificate to say that you can't work in the pit anymore because I have a duty of care for your well-being and safety. Plaintiff: What the fuck's this about Jock? Jock Fotheringham: We don't you out in the pit anymore." Dave Ellem: Who are you to change Gemma's medical certificate? That has to be done by a doctor. By law you can't tell her what she has to have on a medical certificate or order Gemma to get it changed. That decision is between Gemma and her doctor. Jock Fotheringham: Well, we don't want her out in the pit anymore. It could make her injury worse. Plaintiff: I don't think it will make my injury worse."
The plaintiff says that at this point in the conversation, she became upset and emotional. "Plaintiff: This isn't fuckin' good, Jock. This is bullshit. After I've built up my hours, why now? Jock Fotheringham: Oh, this is nothing against you Gemma, it's just that we have a duty of care." Plaintiff: Okay, if I come back in here and work, what am I going to be doing, because I don't want to sit around in a crib hut all day because that will do my fucking head in. Jock Fotheringham: Oh no, we will have mindful work for you to do. Plaintiff: What will I be doing? Jock Fotheringham: There's a fair bit of work to do in the 'Enviros' at this stage."
"Enviros" was a reference to the Environmental Department of the mine, and the plaintiff understood Mr Fotheringham to be referring to work in the environmental team. The plaintiff became extremely worried and upset about the prospect of losing her current role at the mine, which she loved. The plaintiff regarded herself as a mother figure to the drill team.
From the time of her conversation with Mr Fotheringham, Mr Ellem and Ms Johnson until Christmas Eve 2014, the plaintiff drove soil samples from Mt Arthur to Gundy, drove environmental department officers around the pit and rewrote the health and safety procedure list. After December 2014, she no longer worked in the pit.
From 26 January 2015, the plaintiff sat in the crib room for 9 hours a day, 4 days a week. She says she walked around and asked people from the environmental department, the health and safety department, the geo-tech and geology department, the production department and the engineering department if they had work for her, but they rarely did.
By January/February 2015, the plaintiff had begun to experience increased pain in her back, right hip and right leg. She was also feeling emotionally distressed because of her new position at work. On 16 February 2015, the plaintiff had an appointment with Dr Meeran, where she told him she was not coping with being cooped up in the crib room for hours at a time with nothing productive to do. Dr Meeran reduced the plaintiff's suitable duty certificate from 9 hours to 6 hours per day, 4 days per week.
On 19 February 2015, the plaintiff attended a meeting. Present at the meeting were union representative Jeff Dayton, Ms Johnson, superintendent Jeff Hanlin and a rehab management acting on behalf of coal mine insurance, Jo Lockhart. The plaintiff understood that Ms Lockhart was the mines rehabilitation manager. The plaintiff recalls that Ms Lockhart told her, "We are here to discuss what is going to happen for Gemma's future."
The plaintiff did not understand what that meant and said so. Mr Hanlin then said words to the following effect: "You have to go to the doctor and ask if you can be cleared for pre-injury duties. If you can't come back to work. If he won't clear you for pre-injury duties you won't be able to come back to work."
The plaintiff was devastated. She made an appointment to see Dr Merran, which Ms Lockhart attended. The plaintiff asked Dr Meeran if she could be certified as fit for pre-injury duties, but Dr Meeran said no.
Upon this news, Kelly Bromfield informed the plaintiff that she was not to come back in to work until her medical certificate said that she could work pre-injury duties. The plaintiff has not returned to work since.

[29]

Psychiatric injury

The plaintiff says that her mental state suffered significantly due to the period of time she was confined to the office without meaningful work duties from December 2014 until 19 February 2015.
During this time, she was questioned by other staff members as to why she was not working full duties. She had no room to do work and was not given a desk. The plaintiff was continually asking anyone and everyone if they had any work for her during this time.
Many workers who came into the crib room for lunch would ask the plaintiff why she was just sitting there and not doing anything meaningful. She says they made comments such as the following: "What are you doing? Why aren't you doing something? Harden the fuck up. You are just a sook."
The plaintiff says that the constant questioning by her peers made her feel worthless and useless.
The plaintiff suffered a number of panic attacks when she was working on light duties. Her most severe panic attack was on Monday, 2 February 2015. She was so distressed that she had to sit in her car because she felt like she had nowhere to hide in the crib room.
The plaintiff says that a combination of sitting in the crib room with no work, being treated poorly by fellow staff members and being directed by Mr Fotheringham to change her medical certificate all caused her severe stress. It was these circumstances that caused her to suffer a series of panic attacks, feeling nervous, confused, degraded, angry, anxious and depressed.
She says that she struggles to leave the house on a daily basis and dislikes going into public areas. She gets easily anxious and stressed.
The plaintiff has had depression since her husband died in 2008, but she says the depression worsened after her poor treatment at work. She never used to suffer anxiety or panic attacks. She also developed anger issues, and now gets easily frustrated or annoyed by small things that never used to bother her. The plaintiff has found Mr Freeman's treatment helpful, and is now not as prone to panic attacks.
The plaintiff says that she has also noticed that she lacks energy and enthusiasm in all parts of her life. She feels absolutely worthless most days, and needs to push herself to do the simplest tasks. She repeats affirmations to herself in the mirror every morning to try to make herself feel better about herself and to convince herself that her life is worthwhile. She mediates every day for between 15 and 20 minutes.

[30]

Video surveillance

It is appropriate that I now record my observations of the plaintiff's activities when she was unknowingly under video surveillance. At trial, this Court, the legal representatives of the parties and the plaintiff viewed 10 hours of video surveillance (Ex 9 - USB). I have not covered all of it in my judgment, but concentrated on the more significant parts.
A video taken on 4 September 2014 shows the plaintiff as she emerged from the Mercure Hotel. She stood outside, smoked a cigarette and used her mobile phone. The plaintiff was standing and not using any structure to support herself. The film showed the plaintiff walking with a limp to the inside of the hotel.
The plaintiff departed the hotel in her Toyota Prado at 10.05 am. At 11.35 am, she stopped at the Twin Service Stations at Wyong and went to McDonalds. At 11.52 am, the plaintiff departed the Twin Service Stations and continued to drive in the direction of Aberdeen.
Another video taken on 27 August 2015 shows the plaintiff as she attended an appointment with Dr Millons in Newcastle. She had driven 1 hour and 20 minutes from Aberdeen. On viewing the video, the plaintiff observed that she walked with a limp or funny gait, used handrails for support and appeared stiff when she went to sit down or stand up. My observation is that the plaintiff was able to walk briskly, but with a limp.
After that appointment, the plaintiff and her mother are seen seated outside in a café. The plaintiff then drove in a Toyota Landcruiser back to Wallsend, where she and her mother stopped off at the Wallsend shopping centre and attended the food court. The video shows the plaintiff seated and talking on her mobile for 11 minutes. She is seen walking outside past a building while smoking a cigarette, standing and using her telephone and walking up stairs with a limp. She held the hand rail with her other hand for support.
On the video, the plaintiff then drove 1 hour and 20 minutes to Aberdeen. When watching herself on the video getting in and out of the car at Aberdeen, the plaintiff observed that she got out very gingerly because she was stiff and in pain from the drive. She also observed that she needed to hold onto the door for stability, and that she shook her legs to make sure that she could feel her foot before she walked off. The plaintiff says that when she travels, she always adjusts her seated posture to try and take the pressure off her back.
In a video taken in September 2015, the plaintiff is shown wearing her work gear. At the time she was still officially employed, and had been sent to see a psychiatrist for Mt Arthur. She wore her work vest, long sleeved shirt, jeans and work boots.
The plaintiff was observed standing outside the King Cross Hotel, smoking a cigarette and speaking on her mobile phone. She was standing upright. The plaintiff and two men returned inside to a table, where she sat on a bar stool and consumed alcohol, smoked, talked and laughed. After having been seated for 6 minutes, the plaintiff stood for 29 minutes without assistance or support.
In a video taken on 5 October 2017, the plaintiff left her home at Aberdeen and drove from 4.22 pm to 4.32 pm to the offices of Morgan and English Lawyers. She departed the lawyers' offices at 5.27 pm.
On 7 October 2017, the plaintiff is shown leaving her home at 10.14 am with other occupants and driving to Scone, arriving at 10.26 am. She can be observed getting out of her 4 wheel drive and walking towards a hair salon.
On 12 October 2017, the plaintiff is shown at 12.58 pm as she left Wentworth Chambers, Sydney. She walked down the steps and stood on the footpath while having a conversation. She then stood near a pole outside Wentworth Chambers, not leaning on it. The plaintiff then walked down Martin Place, where she examined a handbag. She was seen talking in Pitt Street Mall and then walking into the Strand Arcade, where she had lunch at a café while seated on a wooden chair. After lunch, the plaintiff walked through the Strand Arcade and shopped at H&M. The plaintiff then walked along Pitt Street Mall in Market Street where she caught a taxi to the Holiday Inn Hotel at the Rocks. She alighted from the taxi, smoked a cigarette and entered the hotel. The footage ends at 2.32 pm.
On 13 October 2017, the plaintiff is shown at 7.55 am standing outside of the Holiday Inn, smoking. She walked off with a limp at 7.59 am.
On 6 October 2017, the plaintiff is shown driving from her home to Scone, where she entered a Woolworths Supermarket. She pushed a shopping trolley through the fresh food section. She then unloaded the shopping trolley into the rear side passenger door of her vehicle. She returned the shopping trolley and drove off.
Having watched these videos at trial, the plaintiff was asked, "What we see in the film that you were shown over so many minutes and perhaps hours in the last couple of days, are snapshots of your life, when you did not believe you were being filmed. That's so, isn't it?" She answered that she did not know that she was being filmed. However, she agreed that the videos showed snapshots of her activities (T 295.35-41).

[31]

The plaintiff's credibility

I will now record my findings in relation to the plaintiff's video surveillance. I observed the plaintiff carefully while she gave evidence and was cross examined at length. I have accepted her evidence on liability as being truthful.
So far as damages are concerned, I have reluctantly formed the view that when the plaintiff gave evidence as to her disabilities, she exaggerated them. When she was giving evidence in the witness box, the plaintiff frequently grimaced, winced and sighed, giving the impression that she was consistently in severe pain. She changed position from sitting to standing from time to time, which I accept was because of her genuine discomfort. However, the video surveillance shows that she is capable of doing more than she says she can.
There is no doubt that the plaintiff walks with a right-side limp. At times it is marked, and at other times slight. This no doubt depends on a number of factors. I observed in the video surveillance that when the plaintiff was going up and down flights of stairs, she supports herself by placing a hand on the handrail.
I accept that the plaintiff finds it is easier to exit than to enter a car, because she can slide out. I accept that she has trouble getting in and out of sedans because they are lower the movement causes her pain. She walks with a consistent limp. At the supermarket when purchasing a number of items of shopping, the video surveillance shows the plaintiff using a trolley. I accept that she always tries to use a trolley to lean on and balance with her legs, and that she also tries to use a higher trolley so she does not need to lean in to place or retrieve items, as bending in that fashion causes pain in her back. She also uses multiple bags, placing small numbers of items into each so she is not lifting heavy weights.
Of more significance is that she holds a most definite and unshakeable view that she is unable to carry out any paid employment. I will address her disabilities in more detail after I have taken into account the medico legal assessments.

[33]

The orthopaedic surgeons

Dr Bentivoglio, orthopaedic surgeon, wrote two reports dated 6 October 2015 and 9 March 2016. In both reports, Dr Bentivoglio was asked similar questions and gave expectedly similar answers. Dr Bentivoglio opined that the plaintiff's only work-related abnormality is discal damage at the L5/S1 of her lumbar spine on the right-hand side. The plaintiff's duties operating loaders, dozers, excavators and shovels required her to remain seated for prolonged periods of time. Dr Bentivoglio considered that remaining in one position for prolonged periods of time, as is required for all driving duties, would cause the plaintiff's back symptoms to be aggravated. The machines' constant vibrations would also aggravate her complaints.
Dr Bentivoglio opined that the plaintiff should not be required to remain in one position for more than 50% of the time. She should be able to get up and move around on a regular basis. She should avoid bending, twisting and jarring movements of her back. She also needs to avoid repetitively lifting objects of 5 kilograms or more. Dr Bentivoglio considered that as long as selective duties were made available to the plaintiff so that she could get up and move on a regular basis, and so that she did not have to bend and twist her back or repetitively lift objects of 5 kilograms or more, the plaintiff could cope with full-time employment.
Dr Bentivoglio was not required for cross examination, nor did he participate in writing the joint report or giving concurrent evidence. Because Dr Bentivoglio's opinion differs from those of Drs Hopcroft and Millons, and he was unable to be tested by participation with his peers in writing a joint report and giving concurrent evidence, I prefer the views of Drs Hopcroft and Millons. However, I note that Drs Hopcroft and Millons do not agree on issues surrounding the plaintiff's capacity to work after the accident and the causation for her hip replacement surgery. I will deal with these disputed issues later in this judgment.

[34]

The reports of orthopaedic surgeons Drs Hopcroft and Millons

Dr A G Hopcroft prepared reports dated 18 November 2015 and 16 March 2018. Dr D Millons prepared reports dated 13 June 2013, 24 October 2014, 19 November 2014, 27 August 2015, 29 June 2016 and 22 August 2018. Both doctors prepared a joint report dated 26 March 2019 (Ex 1).
Dr Hopcroft opines that the plaintiff is totally unfit to return to mining duties (Hopcroft, 16 March 2018). Dr Millons does not agree. It is his opinion that the plaintiff has a capacity to work in a semi-sedentary situation. According to Dr Millons, the plaintiff should have no difficulty working in an office environment for 4 hours a day, so long as she avoids excessive bending, lifting more than 5 kilos, or working in awkward or confined spaces. He predicted that through treatment and work hardening, the plaintiff ought to be able to increase her hours over a couple of months, particularly if no problem was identified on the proposed updated investigations (Millons 13 June 2013).
In his report dated 24 October 2014 (CB, page 437), Dr Millons noted that the plaintiff currently complains of pain in the lower back spreading through the right lower limb to the foot. The source of the pain was not clear to Dr Millons. He thought that there was every indication for the plaintiff to have an updated MRI to see if there had been any significant change in the findings at L5/S1, as it had been 15 months since her last one. He noted that the plaintiff was back working on the drills, although only working 9 hour shifts for 4 days a week. Although she was working fewer hours than she did before, Dr Millons felt that this was probably a reasonable compromise. Dr Millons was of the view that at that time of his report, the plaintiff was fit to work on the drills at her current level, but it would be reasonable to keep her away from her former duties until the plaintiff had undergone some further investigations of her back and hips. He stated that she should avoid work that entails a lot of bending, lifting or working in awkward or confined spaces. She seemed to cope reasonably well on the drills, where she could sit or stand.
In his third report, dated 19 November 2014 (CB, page 446), Dr Millons still stated that he believed that the plaintiff was fit to work on the drills, but he doubted whether she would be able to raise her hours much beyond their current level of 9 hours a shift, 4 days a week. She should avoid any work that entailed a lot of bending, lifting more than 10 kilos or working in awkward or confined spaces. Rather than put a series of unnecessary restrictions on her, Dr Millons was of the view that it would be better for her to arrive at a working life with which she felt comfortable. He stated that the plaintiff seemed to have done that quite well.
In his report dated 27 August 2015 (CB, page 451), Dr Millons reported that the plaintiff's current situation had taken a turn for the worse. She had persistent numbing pain in her lower back, which radiated into the right buttock down the side of the calf to the top of the right foot. She could only sit for half an hour before she had to change her position. Standing in one spot was aggravating, and she found bending and lifting difficult. She could walk very far before her pain increased. She said she was woken by pain in the night.
Dr Millons reported that the plaintiff had to get up in the morning to get her two children, aged 15 and 12 years, ready for school. She told Dr Millons that she usually rested in the daytime, and did not go out of the house very often. She had found the drive to visit Dr Millons difficult. She said she always took someone with her to go shopping to help carry the bags. She did a little cooking at home, and required her children's help with the housework and gardening. Her son mowed the lawn. Friends also called around from time to time to assist, and her mother and father lived close by and were a support to her. She was very distressed about her lot in life and told Dr Millons that she just wanted to work hard at her former position in the industry. She appeared not to have accepted that that was not possible.
Nevertheless, Dr Millons opined that in relation to her back injury only, from an orthopaedic point of view, the plaintiff should have capacity to work in an office based environment for 6 hours a day, 4 days a week (my emphasis added). She seemed averse to the idea of doing any office work. He noted that the plaintiff's prior working life of 9 hours a day, 4 days a week was probably not an option moving forward due to the deterioration in her general condition.

[35]

The joint orthopaedic report

Drs Millons and Hopcroft prepared a joint report dated 26 March 2019 (Ex 1) and gave concurrent evidence. Both experts viewed the video surveillance of the plaintiff (T 91) after they had written their joint report, but before they gave conclave evidence. Dr Hopcroft observed that on 4 September 2015, the plaintiff was walking with a "marked" right sided limp, whereas Dr Millons described the limp as "slight" (T 47-50). Dr Hopcroft said that on 6 October 2017, the plaintiff can be seen walking with a slight limp favouring her right leg. Dr Millons observed that the limp was not consistent, and described it as a "variable" but "recurrent". He explained that it could be caused by problems with the back, or with nerve pain in the leg. It could also come from an osteoarthritic hip such as the plaintiff's. If a person with an arthritic hip has been sitting for awhile and then stands, they may be stiff before walking it out. The person may limp for a while after sitting, after which the limp is less obvious (T 95.28-32).
Dr Millons thought that the plaintiff somewhat exaggerated and overstated her symptoms (T 98.6-7). Dr Hopcroft disagreed. His opinion was that the limping seen in the video footage could be consistent with the plaintiff's hip pathology (T 98.15-19). Dr Hopcroft added that the limp could aggravate the osteoarthritis in the hip. As such, if the plaintiff had not had the injury in April, she may not have needed the right hip joint replacement. He explained that a recognisable component of her need for surgery on the hip was because the limp came from the disc protrusion (T 99.26-31). Dr Millons agreed that the plaintiff has osteoarthritis of the hip and that the condition can be aggravated by an altered gait pattern. He stated that it is a progressive condition which will require a hip replacement at some state (T 99.41-43). It is Dr Hopcroft's opinion that the injury has accelerated the plaintiff's hip condition, whereas Dr Millons says that it may only possibly have done so.
Drs Millons and Hopcroft agree that the plaintiff presently suffers from lumbar spondylosis with a superimposed L5/S1 inter-vertebral disc lesion toward the right, and osteoarthritis of the right hip. They stated that an intervertebral disc lesion caused right sciatica and deterioration in the plaintiff's right hip function. They also agreed that the impact of the plaintiff's work injury on her capacity to seek, obtain and retain work in the past was that she had difficulty performing ongoing work, which aggravated the symptoms on her back and her hip. Drs Millons and Hopcroft stated that clinicians must be wary of further aggravation of the disc protrusion and arthritis of her hip.
Based on their examinations of the plaintiff, both doctors were of the opinion that the plaintiff was significantly restricted in any future work activities by the risk and probability of increasing the protrusion of the L5/S1 disc, and the aggravation of the arthritis of her hip. If the injury had not occurred, the plaintiff's most likely circumstances given the state of her pre-existing degenerative spinal condition was that she would have suffered a slower deterioration of spondylosis and her hip arthritis, the combination of which would have allowed her to work for only another 10 years. There was a pre-existing lumbar spondylosis without disc protrusion and osteoarthritis of the left hip. They opined that the plaintiff's prognosis was poor, with a maximum of 10 years to work - that is, until September 2029 - even if all precautions were taken.
They agreed that the plaintiff would have benefited from hydrotherapy, physiotherapy, weight reduction and cessation of smoking. They assessed the plaintiff's likely future treatment needs as being ongoing hydrotherapy, the cost of which is approximately $500.00 per year. They stated that she also needs self-managed physiotherapy and weight reduction, including bariatric surgery. So far as the plaintiff's future treatment needs are concerned in light of the pre-existing degenerative changes in the plaintiff's spine, the orthopaedic surgeons agreed that with ideal medical management, she should have had planned hydrotherapy, weight reduction and education in self-physiotherapy. Both her back and right hip conditions are progressive. As such, in the future she may face a right total hip replacement to improve pain levels, but she is not a candidate for neurosurgery on the L5/S1 disc protrusion. However, since the joint report was written, the plaintiff has lost 36 kilograms, which is a significant weight loss. Both doctors agreed that losing 36 kilos will take a lot of load off the plaintiff's back and hips, and may decrease her symptoms of pain. However, as she already suffered a significant disc protrusion, losing weight would not be able to alleviate that condition whatsoever (T 113.6-22).
According to both doctors, the plaintiff required domestic care of 3 to 4 hours per week for lifting, high cleaning and garden maintenance, but she did not require personal care and assistance. This evidence on the topic of domestic care needs to be considered in the light of the occupational therapists' evidence later in this judgment.

[39]

The psychologists' joint report

Sebastian Bass and Mark Ravagnani, psychologists, prepared reports dated 9 August 2017 and 7 February 2018. They also prepared a joint report dated 19 March 2019 (Ex 4). They were not required to give concurrent evidence. Their report is as follows: "We have been asked to perform the conclave in order discuss the matter and our findings. 1. From a vocational perspective, what is the nature of any condition (or conditions) from which the plaintiff presently suffers? Joint Opinion Whilst we are not qualified to offer an opinion on the medical aspects of Ms Duffin's injuries, we both agree that Ms Duffin complains of persisting pain in her lower back, right buttock, leg and foot which is worsened by activity. As a result, she reports difficulty with activities such as prolonged standing or sitting, walking and general mobility as well as a range of activities of daily living. 2. From a vocational perspective, what do you consider to be the impact of the injury of 6 March 2013 on the plaintiff s capacity to seek, obtain and retain work in the past (whether with or without appropriate vocational training)? Ravagnani: Ms Duffin participated in a graded return to work programme following her injury on 6 March 2013 but was unable to resume full duties and hours as a mining production employee. She was put off work in September 2015 and to my knowledge, has not undertaken any form of employment since. At the time of my assessment she was unfit for work. As such, her injury has resulted in her inability to secure and maintain suitable employment to date. Bass: Ms Duffin is reportedly unfit for work, and this status is reportedly attributed to the 6 March 2013 incident. Whilst it is curious that she was performing Driller duties 9 hours per day over a four-day week immediately prior to her ceasing to attend work, the fact that she has been medically certified as unfit for work negatively impacts the extent to which Ms Duffin will seek work, better yet obtain and retain work. Areas of difference: Bass: Had Ms Duffin been certified as being fit for work, she would have had the capacity to seek, obtain and retain suitable work. The nature of any work restrictions would impact the nature of suitable jobs. Ravagnani: Had Ms Duffin been fit for work she would have had the capacity to seek and obtain work however her ability to maintain stable employment over time would have depended upon her ability to manage her symptoms. 3. From a vocational perspective, what do you consider to be the impact of the injury of 6 March 2013 on the plaintiffs capacity to seek, obtain and retain work in the future (whether with or without appropriate vocational training)? Joint Opinion Ms Duffin reported being unfit for work from the date of her dismissal to the time of her assessment. As such, she would be acting against medical advice or opinion if she sought, obtained or retained work from that point to the present. Ravagnani: I am guided by the medical opinion supplied in terms of Ms Duffin's work capacity. Dr Hopcroft (18 November 2015) opined that she was totally unfit for employment whilst Dr Bentivoglio (9 March 2016) opined that Ms Duffin was capable of full-time employment provided she could alter her postures regularly and avoid bending and twisting movements, sustained postures and lifting objects over 5 kgs in weight. Ms Duffin's functional restrictions will continue to impact her capacity to secure and maintain employment in the future. In my opinion, should she be deemed fit for work, her most likely options would lie in the sales or clerical areas however, her history of injury and compensation, protracted period out of the workplace due to disability and her need for workplace accommodations will continue to create barriers to future employment. Bass: There are many jobs that meet the work restrictions identified in the 29 June 2016 report of Dr Millons, and some of these have been contained in my vocational assessment report dated 6 August 2017. She remains a suitable candidate for these jobs, subject to her work restrictions being met and to her status as reportedly "unfit for work". Areas of difference: Bass: Had Ms Duffin been fit for work, she would have had the capacity to seek, obtain and retain suitable work. Ravagnani: Had Ms Duffin been fit for work she would have had the capacity to seek and obtain work however her ability to maintain stable employment over time, would have depended upon her ability to manage her symptoms. 4. From a vocational perspective, if the injury had not occurred, what do you consider would have been the plaintiff s most likely circumstances? Joint Opinion Had Ms Duffin's injury not occurred it is reasonable to predict that in the absence of health or other career-limiting factors, she would have maintained her job as a mining production employee over time. Had this role come to an end as a result of the downturn in the mining industry, she possessed the skills and experience to find alternative mining work or undertake other practical roles such as a truck driver or mobile plant operator as well as a range of practical roles in keeping with her past experience that were available in the local area. It is most likely that Ms Duffin would continue to be working as a mining operator in the mining industry. 5. Based upon your interview of the plaintiff and specialist medical opinion provided to you, does she have transferrable work skills? If so, what are they? Joint Opinion In addition to her experience undertaking practical types of employment in fruit picking, leather processing and bar work, Ms Duffin can demonstrate considerable experience in retail sales as well as more recent experience as a production worker in the mining industry. As a result, she has developed varying degrees of competence within a range of areas including sales and customer service, product knowledge, numeracy and money handling and time management. She has also developed many practical skills associated with her mining industry experience including truck driving, mobile plant operation, workplace health and safety and using specialised equipment. Additionally, Ms Duffin possesses generic skills that are fundamental to the world of work. These include the ability to communicate and interact with others, to take instruction or correction, to work with minimal supervision, to undertake a task to completion, to achieve minimum standards of performance, to solve problems, to plan and prioritise, to work in a team, to be resilient and to make judgements and decisions. Other basic attributes include reliability, punctuality and flexibility. Under other circumstances, these attributes would enhance her employment. Ms Duffin possesses a range of transferrable work skills gained through her previous employment. 6. Based upon your interview of the plaintiff and specialist medical opinion provided to you, is she a suitable candidate for any retraining program? If so, please identify the nature of the programs. Ravagnani: Should she obtain medical clearance for work, then Ms Duffin would benefit from a comprehensive vocational rehabilitation programme which addresses vocational counselling work hardening, job exploration, skills updating, ergonomic work practices and symptom management. Bass: Ms Duffin has attended a Pain Management Clinic for an extended period, and she is likely to have been well trained in postural, work and pain management principles. Refresher training may be useful. Ms Duffin's options for employment include call centre and clerical work. She would benefit from elementary training in information technology systems. Short courses in clerical skills or financial processes would assist her in gaining other jobs, such as an accounts clerk. Vocational counselling is advisable. Joint Opinion On the basis that she is deemed to have a capacity for employment Ms Duffin would benefit from retraining in areas where she is most likely to find employment. 7. Based upon your interview of the plaintiff and specialist medical opinion provided to you, does the plaintiff require retraining in order to secure appropriate employment? If so, please identify the nature of the retraining required and the employment that she may be able to secure following the retraining. Ravagnani: This would depend upon the nature of the work Ms Duffin could potentially undertake. Should a functionally suitable sales or customer service role be available then it is likely that only on-the-job training will be necessary. Whilst Ms Duffin did complete a secretarial course in 1998, she has not undertaken an actual clerical role in the past. She would require formal skills updating for clerical work as office technology has changed considerably since that time. Whilst a job might be considered potentially suitable from a functional perspective, factors such as specific duties, employer expectations and workplace environments can vary considerably. As such, any potential job should be assessed by an occupational therapist in order to determine its exertional requirements and functional suitability. Bass: Most entry-level job starters are instructed in processes and work flows in an on-the-job setting. Extensive use of proprietary information systems and company branding often require classroom training, which is typically employer-led. Ms Duffin would not require retraining in such circumstances. Joint Opinion Depending upon the role, Ms Duffin would not necessarily require retraining in order to secure functionally appropriate employment as on-the-job training would suffice. However, she would require retraining for more conventional clerical roles."

[42]

Non-economic loss

The plaintiff is a "coal miner" as defined in cl 3 of Pt 18 of Sch 6 to the Workers Compensation Act. As such, her award of damages for non-economic loss is governed by s 151G of the Act in the form it was before the 2001 amendments. Prior to the 2001 amendments, ss 151G and 151H apply in respect of both non-economic and economic loss, and are as follows.
Non-economic loss includes pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.
Section 151G of the Workers Compensation Act 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."
The relevant indexed amounts corresponding to $204,000, $36,000 and $48,000 in that section, at 6 March 2013, were $381,750, $67,800 and $89,050, respectively.
An award of damages in respect of an injury to a worker caused by the negligence or other tort of her employer are governed by the provisions of Division 3 Part 5 of the Workers Compensation Act.
In Hann v Clarence Colliery [2012] NSWSC 475, Hulme J addressed the exercise required to be undertaken under s 151G of the Workers Compensation Act at [91]-[92]: "[91] The Plaintiff's physical injury - to one wrist and resulting in but partial loss of free use of the wrist, while undoubtedly a significant handicap, can only be regarded as relatively slight when compared with quadriplegia or substantial brain damage or other lesser forms of injury that might come within the description "a most extreme case". Of course, a relatively slight physical injury can, for a variety of reasons, including the circumstances or other physical or psychological state of the person injured, and even the reaction of others, eg, a wife who can no longer tolerate her husband's appearance or changed psychological state, have a major impact on their life and as the cases make clear, it is not only the injury but its impact that has to be taken into account in this area. [92] But even when those other matters are taken into account, it is impossible to regard the Plaintiff's loss as other than low on the scale of severity of those the Court not uncommonly sees. He was aged 42½ at the time of his accident. From then his life expectancy was something of the order of 38 years. He has had reduced companionship of those with whom he worked (at least since 2009), he has had to give up touch football, he is restricted in his physical activity and in the work he can do around the house and, although he did not say so, he probably has lost some satisfaction in being able to work a full time remunerative week. He does not have the freedom to undertake many forms of employment. Not infrequently he has suffered and continues to suffer pain, at times severe, and has his sleep disturbed by it. He did not say that the reason he no longer plays golf was the injury but even if it was, I am unable to see that the Plaintiff's non-economic loss reaches, in round figures, one-sixth or 17% of a most extreme case. While I have no doubt that, but for the terms of s 151G or a similar provision, I would assess the Plaintiff's non-economic loss as well in excess of $43,350, forced to value and compare his loss with the figure of $256,900 for a most extreme case, an assessment of the Plaintiff's non-economic loss does not result in a figure as great as $43,350. Accordingly, s 151G(4) requires that I award the Plaintiff nothing for his non-economic loss."
By operation of s 151G(8), awarding damages for the purposes of 151G and 151H requires a consideration of the relevant date of injury.
On 6 March 2013, the date of the plaintiff's injury, the maximum award under s 151G was $381,750.
As an award for non-economic loss damages is one for both past and future pain and suffering, the plaintiff's age is a relevant consideration.

[45]

Consideration

The plaintiff was 40 years old at the time of the accident. She is now 47. I accept that the plaintiff is entitled to pain and suffering in respect of the injury sustained in the accident. It is also relevant to consider the extent to which the plaintiff would have suffered from disability in any event from any pre-existing medical conditions. While the plaintiff had pre-existing osteoarthritis in the right hip prior to the accident, it was asymptomatic. It is a progressive condition that the doctors agree would have resulted in a hip replacement at some stage. She also had pre-existing degenerative changes in her lumbar spine. She has lost a significant amount of weight in the last few years.
Prior to the accident, the plaintiff had a full and enjoyable life. She had no restrictions upon her ability to work in her demanding job while caring for her two teenage children. She was able to maintain her home and garden. She experienced no psychological impairment of function or capacity, outside of a brief period after her husband's death in 2008. She enjoyed her work at the mine and the company of her co-workers. She is, on any view, no longer capable of working as a production employee at the mine for a period exceeding 10 years.
The accident dramatically changed the plaintiff's life, which is now marked by significant back and right hip/leg pain. She has also experienced substantial psychological trauma, which affects her ability to perform the entire range of pre-accident activities of daily living. She walks with a limp, which varies in severity. From time to time she uses a walking stick. On bad days, she stays in bed due to her physical and psychiatric injuries. Her life is now somewhat isolated, although the video surveillance shows she is able from time to time to go out and do her shopping, socialise over lunch and occasionally engage with friends in the evenings. She was observed having frequent animated conversations on her mobile phone, although I do not suggest she is not without some level of pain when socialising.
Taking all of these factors into account, I assess the plaintiff's non-economic loss at 45% of a most extreme case. 45% of $381,750 equates to $171,787.50.

[46]

Economic loss

Under the pre-amendment version of the Workers Compensation Act relevant to the plaintiff at the time of her injury, a worker must suffer a "serious injury" in order to be entitled to damages for economic loss: see s 151H(2A). A worker will satisfy the definition of serious injury if one of two thresholds is breached. The first is that the injury for which the compensation otherwise payable under s 66 for the loss or losses resulting from the injury is not less than 25% of the maximum amount from time to time referred to in section 66(1). The second is if an injury for which damages for non-economic loss of not less than $48,000 are to be awarded in accordance with the Division, whether or not compensation is payable under s 66.
It is common ground between the parties that the plaintiff has suffered a serious injury and is entitled to damages for economic loss. Section 151H(4) of the Workers Compensation Act provides for the indexation of the sum of $48,000.
There are a number of well-established principles underpinning the assessment of the plaintiff's claim for economic loss. They are stated by Macfarlan JA (with whom McCall JA and Sackville AJA agreed) in Mead v Kerney [2012] NSWCA 215 at [16]-[27], summarised as follows: 1. It is necessary for the plaintiff to prove the loss for which compensation is claimed. 2. The plaintiff need not prove what employment she is not incapacitated from performing. It is for the defendant, who asserts that the plaintiff has a residual earning capacity, to adduce evidence of what the plaintiff was capable of doing and what jobs are open to such a person. 3. Once the plaintiff's "theoretical work capacity" is assessed, it is necessary to determine whether the plaintiff could and can, as a practical matter, utilise that capacity to obtain work in the geographic area in which it was reasonable for her to seek work. This is a practical assessment of the likelihood of the plaintiff in fact obtaining such jobs, and reflects the approach identified in Nominal Defendant v Livaja [2011] NSWCA 121 at [65] as follows: "...Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation..." 1. The defendant bears an evidential onus concerning the issue of whether the plaintiff has a residual earning capacity that she is practically capable of exercising.
The plaintiff's entitlement to damages for economic loss is constrained by s 35 and s 151I of the Workers Compensation Act in its form before the 2001 amendments. The combination of those sections cap the plaintiff's entitlement to past and future economic loss, as well as superannuation: see Campton v Centennial Newstan Pty Ltd (No 3) [2015] NSWSC 410.
Sections 36 and 151I of the Workers Compensation Act were (and are) as follows: "35 Maximum weekly payment (1) The maximum weekly payment of compensation to an injured worker in respect of any period of total or partial incapacity for work shall not in any case exceed $1,000. (2) If the amount mentioned in subsection (1): (a) is adjusted by the operation of Division 6, or (b) is adjusted by an amendment of this section, the maximum weekly payment of compensation applicable to a worker injured before the date on which the adjustment takes effect is, for any period of incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted. 151 Damages for economic loss-loss of past or future earnings etc (1) This section applies to an award of damages: (a) for past economic loss due to loss of earnings, or (b) for future economic loss due to the deprivation or impairment of earning capacity, or (c) for the loss of expectation of financial support. (2) In the case of any such award, the court is to disregard the amount (if any) by which the injured or deceased worker's net weekly earnings would (but for the injury or death) have exceeded the amount that is the maximum amount of weekly payments of compensation under section 35 (even though that maximum amount under section 35 is a maximum gross earnings amount). (3) The maximum amount of weekly payments of compensation under section 35 for a future period is to be the amount that the court considers is likely to be the amount for that period having regard to the operation of Division 6 of Part 3 (Indexation of amounts of benefits). (4) This section applies even though weekly payments of compensation to the worker concerned are not subject to the maximum amount prescribed under section 35."

[47]

Past economic loss

The plaintiff claims $690,177.90 for past economic loss. This is made up of a period where she claims that she was totally incapacitated, in addition to the periods when she was partially incapacitated. The plaintiff submitted that she was totally incapacitated from 6 March 2013 to 25 March 2013: $1,868.50 (s 35 cap) x 3 = $5,605.50; 22 April 2013 to 30 September 2013: $1,903.70 (s 35 cap) x 23 = $43,785.10; 1 October 2013 to 30 November 2013: $1,924.30 (s 35 cap) x 1924,30; 1 April 2015 to 30 September 2015: $1,999.20 (s 35 cap) x 26 $51,979.20; 1 October 2015 to 31 March 2016: $2,016.10 (s 35 cap) x 26 = 52,418.60; 1 April 2016 to 30 September 2016: $2,042.80 (s 35 cap) x 26 = $53,112.80; 1 October 2016 to 31 March 2017: $2,058.10 (s 35 cap) x 26 = $53,510.60; 1 April 2017 to 30 September 2017: $2,084.90 (s 35 cap) x 26= $54,207.40; 1 October 2017 to 31 March 2018: $2,101.70 (s 35 cap) x 26= $54,644.20; 1 April 2018 to 30 September 2018: $2,128.40 (s 35 cap) x 26 = $55,338.40; 1 October 2018 to 31 March 2019: $2,145.30 (s 35 cap) x 26 = $55,777.80; and 1 April 2019 to 8 September 2019: $2,177.40 (s 35 cap) x 23 = $50,080.20. This equates to $547,775.80.
The plaintiff claims that she was partially incapacitated for the period of 26 March 2013 to 22 April 2013: 4 weeks x $1,924.30 = $7,697.20; 1 December 2013 to 29 March 2013: 17 weeks x $$1,924.30 = $32,712.10; 30 March 2013 to 27 September 2014: 26 weeks x $1,948.80 = $50,668.80; and 28 September 2014 to 28 March 2015: 26 weeks x $1,974 = $51,324. This equates to $142,402.10.
The "as adjusted" figures provided for by s 35(2) of the Workers Compensation Act are annexed to the schedule of damages. Before her injury, the plaintiff earned $2,084.19 net per week. At all times since March 2013, a comparable employee in the plaintiff's previous position has earned in excess of that figure, and in excess of the cap in s 35.
The defendant submitted that the sum of $321,560 should be awarded for past economic loss, calculated as follows. For the period 6 March 2013 to 1 December 2013 (30 weeks): $1,915 x 30 = $57,450. For the period 1 December 2013 to 9 March 2016 (120 weeks): $798 x 120 = $95,760. For the period 10 March 2016 to 11 September 2019 (182 weeks): $925 x 182 = $168,350. $57,450 + $5,760 + $168,350 = $321.560.

[49]

The plaintiff's submissions

The plaintiff submitted that the defendant's documents do not allow the separation of wages derived from exertion from the compensation payments made in the periods of partial incapacity. The plaintiff therefore claims the maximum allowable for the periods, so the compensation payments asserted by the defendant do not doubly reduce the plaintiff's entitlement to past economic loss.
The plaintiff's evidence in respect of her past incapacity, and particularly her recounted conversations with Mr Hanlin, Mr Fotheringham, Ms Johnson and Ms Lockhart concerning the period when she was performing "light duties" between December 2013 and February 2015, was unchallenged.
Between 6 March and 25 March 2013, the plaintiff was totally incapacitated. On 26 March the plaintiff returned to work, performing no meaningful duties. On 22 April 2013 the plaintiff ceased work and remained off work until November 2013.
Between 1 December 2013 and December 2014, the plaintiff resumed work on restricted hours, days and duties, gradually increasing her work over the period. By August 2014, the plaintiff had resumed performing limited duties in the pit and blast areas as a spotter and as a crib-relief drill operator.
On 19 February 2015, her employer told her that she had to be medically cleared to perform her pre-injury duties. The plaintiff's general practitioner told her he could not provide that clearance, so she has not returned to work since 19 February 2015.
The expert medical evidence of Drs Hopcroft and Millons (Ex 1) in respect of the impact of the injury upon the plaintiff's past work capacity was that the plaintiff had "difficulty in ongoing work capacity which will aggravate the symptoms of her back and her hip".
The unchallenged expert medical evidence of Dr Roberts was that the plaintiff was "unfit for work from a psychiatric perspective" and "profoundly impaired". The plaintiff submitted that the Court should be comfortably satisfied that, independent of any incapacity by reason of her physical injuries, the plaintiff was totally incapacitated for work for all relevant periods as a result of her psychiatric condition.
The plaintiff also referred to the expert evidence of the vocational conclave, Mr Ravagnani and Mr Bass (Ex 4). I consider this evidence in greater detail later in this judgment. When asked about how being certified as unfit for work had affected the plaintiff, Mr Ravagnani stated that it "resulted in her inability to secure and maintain suitable employment to date". Mr Bass stated that the certification had "negatively impact[ed] the extent to which [she] will seek work, better yet obtain and retain work".
Messrs Ravagnini and Bass accepted that had the plaintiff been certified fit for work, she would have had a capacity for some form of work. However, the plaintiff submitted that from a practical perspective, their opinion is illusory because she never regained a capacity for work after the defendant terminated her light duty work in February 2015.
The plaintiff submitted that with the exception of the periods of partial incapacity between March and April 2013, and between December 2013 and February 2015, the plaintiff has been totally incapacitated for work since 6 March 2013.

[50]

The defendant's submissions

The defendant submitted that in relation to past economic loss, the relevant considerations are as follows: 1. prior to the plaintiff's injury, her earnings were $2,048 net per week; 2. for the period of 6 March 2013 to when the plaintiff resumed employment on 1 December 2013, the plaintiff's earnings but for her injury were greater than the s 35 maximum under the Workers Compensation Act, such that she is only entitled to economic loss of $1,915 per week during that period; 3. the plaintiff resumed employment between 1 December 2013 and 9 March 2016, initially working 12 hours per week and building up to 36, which averages out to 25 hours per week, entitling her to economic loss of $1,250 per week during that period; 4. between 10 March 2016 and 11 September 2019, the defendant increased the plaintiff's pre-accident earnings to take into account movements in CPI, since the plaintiff ceased work in 2016; and 5. during the same period, the defendant has assessed the plaintiff's earning capacity at $1,250 per week, which represents her average earnings when she was working 25 hours a week reflective of her appropriate earning capacity on the open-labour market.
In terms of economic loss generally, the defendant does not accept that the plaintiff is totally unfit to perform all forms of employment.
When considering the issue of incapacity, a number of factors are relevant. They are as follows: 1. the plaintiff is not entitled to be compensated for ongoing incapacity if other non-tortious events would have incapacitated that plaintiff in any event; 2. although the plaintiff considers herself to be totally incapacitated, Dr Millons and Ms Zeman have suggested that the plaintiff exaggerated the extent of her disability; 3. the surveillance film indicates that the plaintiff was capable of activity greater than she had led medical examiners to believe; 4. the film indicated that she was capable of conversing with others over an extended period and using a mobile phone without difficulty; 5. the plaintiff's presentation in the witness box over a number of days indicates that she has the ability to communicate ideas unrestrictedly, such that Mr Bass's suggestion that the plaintiff could work as a call service operator certainly appears to be within her capabilities; and 6. the plaintiff was performing real work for the defendant until 2016, after which there is no medical evidence of a deterioration of the plaintiff's condition, such that it is difficult to accept that she has been totally incapacitated for all forms of employment since that time.
Accordingly, the defendant submitted that its assessment of past economic loss represents a reasonable approach.

[51]

Consideration

It is not disputed that the plaintiff was totally incapacitated from work from 6 March 2013 until 1 December 2013. Her loss of earnings for that period of 30 weeks was $1915 x 30, which equates to the sum of $57,450.
The psychologists, Messrs Bass and Ravagnani, agree that it is reasonable to predict that had the injury not occurred, in the absence of health or other career limiting factors, the plaintiff would have maintained her job as a mining production employee. Had this role come to an end as a result of the downturn in the mining industry, she possessed the skills and experience to find alternative mining work or undertake other practical roles, such as a truck driver or mobile plant operator. She also could have undertaken a range of practical roles in keeping with her past experience that were available in the local area. It is most likely that the plaintiff would have continued to be working as a mining operator in the mining industry.
It accept the opinions of Drs Million and Hopcroft that had the plaintiff not suffered her injuries to her back and right hip in the accident, it is likely (in light of the state of her pre-existing degenerative spinal and hip conditions) that she would have suffered a slow deterioration of spondylosis and hip arthritis. The combination of these two conditions would have allowed her to work in her current job in the mining industry for only a further 10 years. I find that had the plaintiff not suffered her physical injuries in the accident, she would have continued to work as a production employee in the mining industry as set out in the psychologists' reports referred to above, earning the same salary plus salary increases until 2029. After that 10 year period, when the plaintiff attained the age of 57, it is my view that she would have retained some residual earning capacity. She most likely would have had a decreased earning capacity until aged 67. She most likely would have worked perhaps two or three days per week, at 12 hours in total, in a role such as sales or customer service, where she would have been able to sit and stand when she felt uncomfortable. The parties are to calculate this amount in accordance with the appropriate award rates.
The next issue to address is what residual earning capacity, if any, the plaintiff has from 1 December 2013 to date. On 1 December 2013, the plaintiff returned to work on a part-time basis. Drs Millons and Hopcroft stated that her prognosis in relation to her spinal and right hip injuries is poor. Dr Hopcroft was of the opinion that as at 16 March 2018, the date of his last report, she was still unfit to contemplate a return to any workplace. Dr Millons' opinion was that the plaintiff should have the capacity to work in an office-based environment for 6 hours a day, 4 days a week.
From a psychiatric point of view, it is Dr Roberts' view that the plaintiff suffered from a major depressive disorder and panic disorder. It was his opinion that independent of any physical restrictions, the plaintiff was totally unfit for work in any capacity. Even if her physical limitation were to fully resolve, she would remain profoundly impaired. Her emotional fragility and altered interpersonal functioning would compromise her participation in the workforce. He was of the opinion that the conditions she suffered could compromise memory and concentration. However, he stated it would be premature to state that she has reached maximum medical improvement.
As previously stated, Dr Roberts was not required for cross examination. The defendant had the plaintiff examined by a psychiatrist, but did not serve any reports. As such, I accept Dr Roberts' opinion.
The plaintiff attempted to return to work, and was partially incapacitated during the dates as set out in [250] of this judgment. Except for those periods, the plaintiff has not worked since 29 March 2015. Both Dr Roberts (from a psychiatric point of view) and Dr Hopcroft (from an orthopaedic point of view) agreed that the plaintiff has been, and will remain, totally unfit for work from 29 March 2015 onwards. Dr Millons disagreed. He was the opinion that from an orthopaedic point of view, the plaintiff should have capacity to work in an office-based environment for 6 hours a day, 4 days a week. It is necessary to consider the effect of both the orthopaedic and psychiatric injuries had on the plaintiff's earning capacity.
I accept that from the date of the accident to the date of this judgment, on the basis of both the psychiatric and orthopaedic evidence, the plaintiff has had no residual earning capacity, with the exception of some partial working capacity from 26 March 2013 to 28 March 2015. The parties are to calculate past loss of earning capacity.

[55]

Consideration

As previously stated, I accept that if the plaintiff had not been injured in the accident, she would have worked in the mining industry in the well-paid job she had (or similar) for 10 years. She enjoyed the work and the work environment. After 11 September 2029, when she could no longer perform the heavy work, it is my view that she would have obtained some other less remunerative employment, probably on a casual basis of 15 hours per week. She was regularly employed prior to the accident and in my view that would not have changed, despite her pre-existing medical conditions. While it is not possible to be precise, I have arrived at the figure of 15 hours per week on the basis that she most likely would have obtained the type of employment set out by the psychologists of between two to three days per week, or some other variation of hours amounting to 15 hours per week. This period of economic loss is to be calculated on the average earning per week.
It would seem that the plaintiff may have no residual earning capacity in the future, with the exception of four factors that have to be taken into account. The first is that Dr Roberts stated that from a psychiatric point of view "at this stage" (that is, at 15 October 2015), it would be premature to consider that the plaintiff has reached maximum improvement to her condition. Hence, it is possible that her psychiatric condition may improve in the future. The second is that the plaintiff holds an unshakable belief that she cannot carry out any paid employment at all. The third is that she exaggerated her disabilities to some extent, which was demonstrated in the video surveillance. I have commented upon this earlier in this judgment. The final factor is that if the plaintiff's psychiatric condition improves, she may be capable of doing a modest amount of work sometime in the future of the types set out by Messrs Ravagnani and Bass.
Messrs Ravagnani and Bass say that the plaintiff has developed varying degrees of competence within a range of areas, including sales and customer service, product knowledge, numeracy, money handling and time management. She has also developed many practical skills associated with her mining industry experience, including truck driving, mobile plant operation, workplace health and safety and using specialised equipment.
Additionally, the psychologists point out that the plaintiff possesses generic skills that are fundamental to the world of work. These include the ability to communicate and interact with others, take instruction or correction, work with minimal supervision, undertake a task to completion, achieve minimum standards of performance, solve problems, plan and prioritise, work in a team, be resilient and make judgements and decisions. Other basic attributes include reliability, punctuality and flexibility. Under other circumstances, these attributes would enhance her employment.
According to the psychologists, the plaintiff should be functionally suitable to a sales or customer service role. If one became available, then it is likely that only on the job training will be necessary. While the plaintiff did complete a secretarial course in 1998, she has not yet undertaken an actual clerical role. She would require formal skills updating for clerical work, as office technology has changed considerably since that time.
Despite the plaintiff's belief as to her working capacity, I agree with the psychologists' view that the plaintiff has potential work capabilities subject to her psychiatric or orthopaedic injuries and disabilities. The plaintiff impressed me as having good communication skills. It is my view that she is capable of doing more than she says she can, as demonstrated on the video surveillance. It is difficult to say with any precision whether or not, and to what extent, her psychiatric condition will improve. Even if there is some improvement, she will still be hampered by her orthopaedic injuries and disabilities. In this regard, I note that Dr Millons opined that after her accident, the plaintiff was capable of working 6 hours per day 4 days per week. Dr Hopcroft disagreed. My view is that 6 hours per day 4 days per week is far too optimistic. I also very much doubt that the plaintiff's psychiatric condition will totally resolve, and is more likely to be characterised by periods of slight improvement. While the defendant submitted that even if the plaintiff had not been injured in the accident she would have been unable to work due to her pre-existing medical conditions, on the balance of probabilities, I do not think that it would have been likely. Even if she developed some discomfort due to these pre-existing conditions, there are jobs that she could still have coped with.
In accordance with Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 ("Hutton"), I make an allowance in the form of a global sum for the possibility that the plaintiff may obtain some future employment on a casual basis from time to time. Doing the best I can, I assess the plaintiff's future residual earning capacity due to the injuries and disabilities suffered in the accident at $15,000 per year.
As to whether the vicissitudes should be increased to 25%, I have not made a finding that the plaintiff would have been taken out of the workforce due to her pre-existing medical conditions. Therefore, I am not persuaded that I should increase vicissitudes to 25%. Vicissitudes should remain at the usual 15%.
The parties are to calculate this amount for future economic loss as at the date of the judgment.

[59]

Future out of pocket expenses

The parties agree that the combination of the evidence from the expert medical orthopaedic conclave (Ex 1) and the evidence from the expert occupational therapy conclave (Exs D and E) have resulted in a significant amount of agreement in respect of the plaintiff's future out of pocket expenses. That said, there remain several matters of contention. These aspects will be separately addressed.
The defendant submitted that it is appropriate to increase vicissitudes when awarding future out of pocket expenses to take into account the plaintiff's pre-existing conditions, including the advanced degeneration in her back, osteoarthritis in both hips, obesity and bursitis. Each of these conditions is capable of giving rise to the need for conservative medical treatment, and should be reflected by a greater deduction for vicissitudes. The defendant submitted that a reduction of this kind is consistent with the need to discount damages in circumstances where a non-tortious event contributes to the loss.
The defendant submitted that the future out of pocket expenses should account for conservative care for a back disability by allowing $1,000 per annum for the plaintiff's remaining years, and reducing this sum by 50% for vicissitudes. This sum includes an annual amount of $275 for equipment required as agreed by the occupational therapists.
I do not agree with the defendant's submissions, as prior to the accident the plaintiff did not regularly consult medical practitioners for problems due to her back. In my view, it is more likely than not that in the future, half of the plaintiff's medical consultations would have been incurred due to her degenerative back, osteoarthritis in both hips, obesity and bursitis.
In Sharman, Gibbs and Stephen JJ commented on the applicability of deductions for the vicissitudes of life from future medical expenses as follows at 587: "Once a probable life expectancy is determined, these enter not at all into the assessment of future hospital expenses or the conventional amount of shortening life expectancy, but are significant in the case of loss of earning capacity."
I therefore do not make any deduction for vicissitudes for future medical expenses.
The defendant also does not make any allowance for the plaintiff's future hip replacement, which I will refer to later in this judgment.

[66]

Items of future equipment in dispute

The areas of occupational therapy disagreement are in respect of the provision of an adjustable bed, a recliner chair and a utility chair (Ex E). Ms Barbara is of the view that the plaintiff requires an adjustable bed at $2,700 to be replaced every 7 years; a recliner chair at $2,603 to be replaced every 7 years; and a utility chair at $85 to be replaced every year. Ms Zeman does not agree that the plaintiff requires these items.
Ms Barbara supports the provision of the "utility chair" a "simple chair with armrests that's height adjustable" so the plaintiff could safely perform "sit-to-stand transfer[s]". Ms Barbara supports the provision of the recliner chair because the plaintiff was most comfortable "being in a reclined position and in a reclined position and in a softer lounge chair". The plaintiff could not use her existing manual recliner chair because it caused "too much pain" for her to operate.
Ms Barbara also supports the provision of the fully adjustable bed to improve the plaintiff's sleep, which she said is "essential for many aspects of health, but particularly, obviously, pain management and also mental health".
By contrast, Ms Zeman considers the plaintiff's needs from a "functional" not a "comfort" perspective, stating "what does she need functionally to perform the task, as opposed to more comfort factors - you know, that might make her more comfortable". In addition, Ms Zeman asserted that the plaintiff was capable of transfers into and out of chairs, and seemed unaware that the plaintiff already had a recliner chair, stating, "I wouldn't necessarily - I mean, I don't have a recliner chair. A recliner chair is not a normal piece of furniture most people have. So, I wouldn't necessarily prescribe a recliner chair unless there was a reason to have a recliner chair; and I didn't see that."
The plaintiff submits that the provision of the three items of equipment is "reasonably required" as a result of the injury suffered, particularly as Ms Barbara identified a lack of safety in the current method of chair transfers and the ameliorating effects of the items upon the plaintiff's pain management and mental health.

[72]

The plaintiff's evidence

The plaintiff relies heavily on her children, parents and a neighbour to assist her in and around the home.
Her son and daughter help with sweeping, mopping, vacuuming, dusting and cleaning bathrooms and toilets. They help with the laundry, as well as meal preparation and washing up. They wash the plaintiff's car. They accompany her when she goes shopping, lifting and carrying and putting away the groceries.
The plaintiff's son and father also assist with whipper snippering, mowing the lawn, gardening and maintenance. Her father also washes her car. The plaintiff's daughter occasionally assists the plaintiff to dress in the morning.
The plaintiff's mother assists with washing, changing the sheets and making the beds. She also helps with laundry.
The plaintiff gave evidence that she is no longer able to hang clothes out on the line. She explained to the occupational therapists that hanging clothes requires her to twist her back, which she cannot do (T 317.23-27).
The plaintiff's neighbour, Fiona Wilton, assists with the washing and cleaning the bathrooms and toilet from time to time. She also helps with the shopping. Since the plaintiff swore her evidentiary statement on 22 May 2018, there has been no change to the amount of domestic assistance she receives from her children, parents and neighbour.
On 19 January 2017, the plaintiff was interviewed at her home by Ms Barbara, an occupational therapist engaged by her solicitor to prepare a report for the purposes of her case. Ms Barbara asked her questions about the nature and type of assistance that had been provided to her since her accident, as well as the names of the people who provided assistance. The plaintiff says she truthfully answered Ms Barbara's questions.
The plaintiff's son is now 19 and an apprentice plant mechanic at Upper Hunter Shire Council. Her daughter is aged 16 and is in Year 11. Her father is 76 and her mother is 74. The plaintiff's mother has had a lot of health issues including cancer of a kidney. The plaintiff's father still works part time as a coach driver to support the family. His health is reasonable, but he is no longer as capable of assisting the plaintiff as he once was.
The plaintiff believes that she will not be able to rely on her parents and children for help much longer, as her children are preparing to leave home and begin their own lives, and her parents are getting beyond the point of being able to assist.

[73]

The plaintiff's submissions

The plaintiff submitted that the Court should prefer the assessment of Ms Barbara to Ms Zeman in relation to domestic cleaning. Ms Zeman's adjustment of care for domestic cleaning seemed to be based upon surveillance showing the plaintiff's use of stairs and her single movement of a handbag over a very short period of time. A viewing of the surveillance does not support Ms Zeman's contention.
The plaintiff further submitted that the Court should prefer the assessment of Ms Barbara to Ms Zeman in relation to yard and garden maintenance. Ms Barbara made her assessments based upon the plaintiff's activities and the nature and size her home. Ms Zeman made her assessment on the basis of ABS statistics stating the average hours that an Australian female attends to yard and garden tasks. The plaintiff is not an average female, and the comparison is inappropriate.
For those reasons, the plaintiff submitted that the Court would for prefer the assessments of Ms Barbara. Her assessments are modest and consistent with the balance of the medical evidence.
The plaintiff's evidentiary statement (Ex A) confirmed the impact of the accident on her capacity to perform domestic activities, and a summary of her required gratuitous assistance post-injury. The evidentiary statement also confirmed the truthfulness of the history set out in Ms Barbara's expert report (Ex A, [113.2]; Ex B(ii), Tab 6.5).
The defendant did not submit that the services weren't performed as described. Rather, the defendant relied upon Ms Zeman's to support the extent of the plaintiff's needs for domestic assistance.
The occupational therapists' conclave report (Ex D) established that the plaintiff did have a need for past "domestic" assistance. However, Ms Barbara believed the plaintiff also required "personal" assistance. Both experts revised their assessments in light of the video surveillance. Ms Zeman considered the need for past care to be 4 hours per week plus a "fortnightly car wash"; Ms Barbara's assessment was 31 hours per week from 6 March to 30 November 2013, 18 hours per week from 1 December 2103 to 18 February 2015 and 23 hours per week from 19 February 2015 to date.
The plaintiff submitted that Ms Zeman's initial assessment, before and after her viewing of the surveillance footage, was erroneously based upon her assessment of the commercial care needs, not the gratuitous care provided. It was also based upon her perception that the video footage of the plaintiff's capabilities was "entirely inconsistent" with her presentation upon assessment in August 2017.
The plaintiff submitted that Ms Zeman's assessment of the footage is not accurate. The footage shows the plaintiff's abilities as being entirely consistent with her presentation to Ms Barbara in February 2017. After watching the footage, Ms Barbara did not significantly alter her assessment of the need for gratuitous assistance as she had originally calculated.
To illustrate the difference between the experts' perceptions, the plaintiff submitted that the Court should have regard to their respective evidence in relation to the video of 3 September 2015, where the plaintiff is seen to ascend and descend stairs with the assistance of a handrail. The plaintiff submitted that Ms Barbara's explanation of her observation of the plaintiff's movements was clear and cogent (T 368), while Ms Zeman's explanation was not (T 358).

[74]

The defendant submissions

The defendant submitted that both occupational therapists agreed that the plaintiff has required past assistance with activities of daily living since her injury. Ms Barbara assessed the plaintiff as requiring domestic and personal assistance, while Ms Zeman assessed the plaintiff as requiring domestic assistance only.
There is a significant difference between the occupational therapists regarding the extent of the need for past care. Ms Zeman identified the need for care at 4 hours per week. This care related to spring cleaning, bathroom cleaning, vacuuming and external heavy household maintenance. This level of care was a reduction from her original assessment of 8.6 hours per week.
The basis of the reduction was her observations on the video. In her evidence, Ms Zeman stated that the video demonstrated movement patterns far in excess of the plaintiff's capabilities when she presented to Ms Zeman at the time of assessment. Importantly, the video contained footage which both pre-dated and post-dated the assessment. Ultimately, Ms Zeman concluded: "Her overall presentation in the video footage does cause me to question the validity of my assessment findings, and to form the opinion that she presented as magnifying her symptoms at the time of my assessment."
Ms Zeman's qualitative assessment involved comparing the plaintiff's presentation at her initial four-hour interview to that observed in the video. Her assessment of the plaintiff's presentation was as follows: "When I assessed Ms Gemma Duffin, she presented as slow and guarded in all movement patterns: wincing, grimacing and groaning throughout the assessment; adopting unusual movement patterns and supporting herself in standing over prolonged periods to 'rest'. She presented as highly disabled and significantly reliant on assistance from others to complete both basic and instrumental activities of daily living."
Ms Zeman was not challenged regarding these observations of the plaintiff, nor did the plaintiff give evidence that Ms Zeman had inaccurately reported her presentation in the assessment.
There can be little doubt that the video, taken over a two year period, fails to demonstrate the type of behaviour which Ms Zeman described during the plaintiff's initial assessment.
Ms Zeman is not alone in recording such marked pain behaviours. During her assessment on 19 January 2017, Ms Barbara noted the plaintiff could stand for only a few minutes, and her posture was rigid in the torso with arms kept close to the body at all times. The plaintiff also had a sitting tolerance of twenty minutes in an upright armchair before she elected to rise and stand. The plaintiff's demonstration of walking was also indicative of significant disability. She walked only a small distance in and outside the house, and walked with "a very fixed, rigid gait with reduced leg lift and swing". Ms Barbara noted that when changing direction, the plaintiff moved with a "fixed torso and no spinal rotational movement". She tended to walk with her weight forward on the front of her feet and her heels off the ground. Ms Barbara also observed the plaintiff momentarily support herself on available fixtures or furniture when walking around the home, exhibiting pain behaviours when descending stairs.
The defendant submitted that Ms Barbara's observations of significant disability are clearly at odds with the plaintiff's capabilities in the video. Ms Barbara modified her claim for past care after viewing the film. She did so by reducing the care provided to the plaintiff by 3 hours after 1 December 2013. The "minor modification" was in relation to grocery shopping and transport assistance.
The defendant submitted that Ms Barbara's reluctance to accept that the plaintiff is exaggerating her disabilities is difficult to understand. Firstly, the film demonstrated activities inconsistent with her presentation on assessment. Secondly, the film showed the plaintiff performing activities inconsistent with her stated limitations.
One example of this inconsistency is the plaintiff's stated ability to drive. The plaintiff's stated that she was limited to driving a 30 km distance (to her parent's house) because of her lower back pain. In the video, the plaintiff is clearly shown to be able to drive from Sydney for an hour and a half. She also stated that she was dependent on her parents or friends to drive her to any appointments or events further away from home. That was not shown in the film. The plaintiff also stated that she shopped or ran errands "only when accompanied". Ms Barbara recorded, "Gemma is unable to complete grocery shopping on her own. She is accompanied by her children, her mother or a friend for all grocery shopping. All manual handling of the shopping and putting away is completed by others." Clearly, the film has shown this statement to Ms Barbara to be untrue.
The defendant submitted that Ms Barbara's reluctance to modify her recommendations in light of these obvious inconsistencies indicate that her opinion should be rejected.
The defendant also took issue with Ms Barbara's recommendations for meal preparation assistance. Ms Barbara thought that the plaintiff required 3 hours of commercial care to "help maintain that level of meal preparation and nutrition in her house in a balanced way". "[I]t's not at all saying she can't prepare meals and she won't prepare meals, but the assistance of the three hours will maintain that quality for her and her household." The defendant submitted that Ms Barbara's logic is flawed. If the plaintiff can and will prepare meals, why does she require 3 hours of commercial assistance? What is meant by "maintain that quality for her and her household"? The defendant submitted that Ms Barbara's claims for past and future care represent a "wish list", as opposed to care reasonably necessary to accommodate the plaintiff for her injury.
It is also important to remember that towards the end her period of employment with the defendant in 2016, the plaintiff was working up to 36 hours a week. It is difficult to see how Ms Barbara's assessment can be appropriate during the period of time where the plaintiff demonstrated a capacity to work those hours, plus driving to and from her property at Aberdeen (a return trip of one hour by car).
Furthermore, the plaintiff's care providers provided no evidence, even though they were available to the plaintiff. The defendant therefore submitted that the appropriate Jones v Dunkel inference should be drawn. I do not agree. If the defendant wished to dispute their evidence, it should have required them for cross examination.
For these reasons, the defendant submitted that Ms Zeman's assessment after observing the film is a fair and proper reflection of the care provided to the plaintiff.

[75]

Occupational therapists' joint report - Ex D

Ms Barbara and Ms Zeman were asked the answer the following questions. "1. BACKGROUND 1.1. Ms Sanja Zeman and Ms Anita Barbara were requested to confer and clarify areas of discrepancy in relation to the two Occupational Therapy Activities of Daily Living reports provided for the court. A teleconference was held on 13.05.2019. 1.2. The two experts would firstly like to present their respective frames of reference, accounting for discrepancies in their reports. 1.3. Both experts agreed that their Letters of Instruction requested similar domains of concern regarding the requested assessments. 1.4. Both experts assessed Ms Gemma Duffin (the plaintiff) some eight months apart in 2017. Although both experts agree that this would not ordinarily account for significant differences in function, Ms Zeman noted some changes in the environment at the time of her later assessment, allowing for some improvement in engagement in activities of daily living. 1.5. Ms Barbara was provided with clinical records of treatment providers involved in the care of the plaintiff, whilst Ms Zeman was not. This included reports by a treating pain specialist and neurosurgeon. 1.6. Ms Barbara noted that her assessment protocol included; gross ROM testing, however, in this instance did not include standardized assessment of ROM, observation of the plaintiff undertaking a range of functional tasks, a detailed interview, review of provided clinical reports, and the use of measures including The Brief Pain Inventory, The Hospital Anxiety and Depression Scale, The WHOQoL - Bref (Australian version and Oswestry Low Back Pain Disability Questionnaire version 2 Ms Barbara has over 25 years' experience as an Occupational Therapist. 1.7. Ms Zeman noted that she used a combination of client centered interview with subjective reporting by the plaintiff; detailed review of clinical records to reference specific stages of recovery against the plaintiff's self-reporting of function; objective measurement using standardized assessment tools - including formal ROM testing using a goniometer, muscle strength testing, Berg Balance Scale; task analysis; and clinical observation and reasoning based on her clinical experience over 30 years of practice as an Occupational Therapist. 2. Q 1 Based upon your examination of the plaintiff, do you believe the plaintiff has required domestic or personal assistance as a result of her back condition since 6 March 2013? 2.1. Yes. Both experts agree that the plaintiff has required past assistance with activities of daily living since the incident of 06.03.213. Ms Barbara assessed the plaintiff as requiring assistance for domestic and personal assistance while Ms Zeman assessed her as requiring domestic assistance only. 3. Q 2 If so, are you able to agree upon the extent to which the plaintiff has required the following assistance in the past: (a) Personal care and assistance; (b) Domestic assistance including meal preparation, domestic cleaning, laundry, bed-making and any other specific requirements; (c) Yard and garden maintenance (again, describe the nature of the assistance required); (d) Car washing; (e) Shopping and grocery delivery; and (f) Transport 3.1. The experts are unable to agree on the past care requirements of the plaintiff. 3.2. Ms Barbara notes that having reviewed additional surveillance relating to the plaintiff, there are only minor inconsistencies with the presentation of the plaintiff compared to her assessment. Ms Barbara notes that the plaintiff walks with an observable limp consistently and that she seeks out a handrail on most occasions for ascending and descending stairs. She notes that on one occasion the plaintiff sought out a handrail for her left side when ascending stairs and sought out an alternate handrail, still on her left side, when she descended the stairs. This reliance on a handrail is not consistent with a person who has full and unencumbered mobility. 3.3. Ms Barbara notes the plaintiff is observed to complete a sit to stand transfer from a chair using the arm rest to assist the transfer which is consistent with observations and self-report. Ms Barbara states that the plaintiff appears to mainly be attending medical and legal appointments which is consistent with her self-report of her reduced social interactions. 3.4. Ms Barbara notes that some of the plaintiff's car transfers were undertaken with greater ease than the plaintiff demonstrated at the time of her assessment; and secondly, that although the plaintiff advised Ms Barbara that she could not undertake grocery shopping unaccompanied, the surveillance footage does demonstrate her doing so, to the extent of a small amount of grocery shopping using a small trolley. She notes there is no footage demonstrating the plaintiff's ability to maintain and work at low and high levels with only fleeting evidence of her reaching a higher level (shoulder height only) and leaning forward with a requirement of minimal lumbar flexion (leaning across a standard commercial counter to make a purchase). Ms Barbara notes that other than the transfer of small grocery bags directly from a trolley into the adjacent car, there is no footage of her carrying objects other than a standard lady's domestic handbag. 3 5. Ms Barbara notes that nothing in the surveillance footage causes her to alter her opinion as to the past care needs, or the extent of same regarding personal care, domestic assistance and yard and home maintenance Ms Barbara notes thatin response to her reviewing of the surveillance footage, she has made a minor modification to her calculation of past care in the areas of grocery shopping and transport assistance These modified calculations are outlined in Appendix 1. 3 6. Ms Zeman notes that the plaintiff's presentation in the surveillance footage m the period between 27.08.2015 -13.10.2017, was entirely inconsistent with her presentation at the time of her assessment. 3 7. Ms Zeman notes that at the time of her assessment of the plaintiff, the plaintiff presented as slow and guarded in all movement patterns, wincing, grimacing and groaning throughout the assessment, adopting unusual movement patterns and supporting herself if standing over prolonged periods to 'rest' She presented as highly disabled and significantly reliant on assistance from others to complete both basic and instrumental activities of daily living. 3 8. Ms Zeman notes that conversely, the surveillance footage shows her ambulating unimpeded, with good quality of movement and appropriate pace, standing for prolonged periods m excess of 10 minutes whilst maintaining an erect spinal posture, walking over extended periods with minimal if any gait impediment, walking and carrying items i.e., handbag/shopping, leaning forward without stabilizing her body to make purchases over a counter m a store with no apparent difficulty, sitting for prolonged periods in excess of 30 minutes without postural variation, maintaining an erect spinal posture to look up at high shelving m a store, with no evidence of the forward flexed spinal posture which was observed at the time of her assessment, ascending and descending stairs while carrying a hand bag, demonstrating a step-through (reciprocal) gait and unilateral upper limb hand rail support, transferring from stand - sit with only minor stabilization through the upper limbs, completing grocery shopping independently, including pushing a trolley and lifting bags out of a trolley and into her car, and consistently driving with an ability to easily transfer in and out of a high vehicle. 3.9. Ms Zeman notes that use of a hand rail during stair climbing does not represent an impediment to function, nor a requirement for assistance, nor does making use of support structures (i.e., car hand grip) for transfers. 3.10. Ms Zeman notes that furthermore, the plaintiffs presentation m the surveillance footage demonstrates appropriate interaction with others, with no overt evidence of any pain behaviors, postural compensation, or impairment to engagement, such as was observed at the time of her assessment when the plaintiff presented as disengaged within her home and community environments, claiming to have little engagement in meaningful avocational pursuits, and very little engagement in goal-directed activities. 3.11. This has caused Ms Zeman to alter her assessment of the plaintiff function based on her own assessment of 02.08.2017, review of independent medical opinion, and review of surveillance footage of actual engagement, noting that the plaintiff has demonstrated the following in the period from 2015 onwards: • Unlimited tolerance: standing, sitting, forward reach, walking, transferring, and stair climbing • Reduced tolerance: overhead reach • Limited tolerance: kneeling and stooping 3.12. Ms Zeman notes that in her assessment of the plaintiff, her primary limitations related to performance of tasks or adoption of postures necessitating low positioning. There is nothing contained in the surveillance footage which demonstrates functional capacity in this regard. 3.13. Ms Zeman further notes that the plaintiff advised that her physical and functional condition has remained essentially unchanged following the subject incident, which causes Ms Zeman to conclude that her own assessment should be interpreted in conjunction with a review of the surveillance footage, which provides real-time evidence of actual functional engagement. 3.14. On this basis Ms Zeman is of the opinion that the plaintiff has required past care as follows: • Domestic maintenance: 1.36 (rounded up to 1.5) hours per week, including bathroom maintenance, spring cleaning, and window cleaning. • External and heavy household maintenance: 2.48 (rounded up to 2.5) hours per week • Car washing: fortnightly car wash TOTAL: 4 hours per week + fortnightly car wash 3.15. It is Ms Zeman's assessment that the plaintiff has had no past care requirement relating to personal care, laundry, transport, shopping, or meal preparation, having been able to make the necessary adaptations to function within her experienced symptoms. 4. Q 3 Based upon your examination of the plaintiff, what are the plaintiff's future care needs by reason of her back condition? 4.1. Both experts note that based on their original assessments of 2017, and giving regard to the contemporaneous medical opinions reviewed, their assessments of future care were not overly dissimilar. 4.2. Both experts note that the categories of future care were essentially the same, including domestic maintenance, external and heavy household maintenance, laundry, and shopping. 4.3. Personal care: 4.3.1. Both experts agree that the plaintiff has no requirement for personal care assistance in the future. 4.4. Meal preparation: 4.4.1. The experts are unable to agree on the need for assistance with meal preparation. 4.4.2. Ms Zeman notes that her assessment of the plaintiff was undertaken eight months after Ms Barbara's, and in that time frame the plaintiff had purchased and had installed an automatic dishwasher which she was using independently, and demonstrated the capacity to use; Furthermore, the plaintiff advised Ms Zeman that she had maintained the capacity to engage in all meal preparation tasks with pacing of the activity and postural variation. Ms Barbara maintains that the plaintiff outlined that she continued to receive significant gratuitous assistance from particularly her teenage daughter and mother for meal preparation. 4.4.3. Thus, although the experts are unable to agree on the needs for assistance in this regard, this may be related to improvement in function and environmental modifications in that time frame, or differences in the self-reporting of the plaintiff. 4.4.4. Ms Zeman further notes that on the basis of her assessment of the plaintiff's functional capacity, giving regard to the plaintiff's report of no change in her function following the subject incident to date, and the plaintiff's demonstrated capabilities in the surveillance footage reviewed, she does not have a requirement for future assistance with meal preparation. 4.5. Domestic cleaning: 4.5.1. Both experts agree that based on their original assessment, they both assessed the plaintiff as requiring 3 hours per week of assistance with domestic cleaning. 4.5.2. Ms Zeman however, considers that having reviewed the surveillance footage, the plaintiff's need for domestic assistance has altered given her demonstrated ability to perform both overhead reach and forward reach tasks, with an ongoing requirement for assistance with the heavier components of residential maintenance, including bathroom cleaning, vacuuming, spring cleaning and window cleaning at a rate of 1.5 hours per week. 4.5.3. Ms Barbara maintains that no aspects of the surveillance footage cause her to alter her view that the plaintiff's difficulty working at high and low levels and manual handling supports the need for domestic cleaning at a rate of 3 hours per week. 4.6. Laundry: 4.6.1. Both experts agree that based on their original assessment, they assessed the plaintiff as requiring 2 hours per week of assistance with laundry. 4.6.2. Ms Zeman however, considers that having reviewed the surveillance footage, the plaintiff's has no requirement for assistance with laundry, given her demonstrated ability to repeatedly reach into a vehicle, twist and turn in transfers, and reach overhead. Furthermore, Ms Zeman notes that the plaintiff does have a clothes dryer, should benefit from weekly grocery delivery for a large grocery shop as this would be beyond the plaintiff's tolerances for manual handling and consistently reaching to high and low levels. 4.11. Transport 4.11.1. Both experts agree that the plaintiff has no requirement for assistance with transport."

[76]

Consideration

Ms Zeman, after viewing the video surveillance, identified the need for past care at 4 hours per week. This is made up as follows: 1.5 hours per week for domestic assistance, including for bathroom maintenance, spring cleaning and window cleaning; and 2.5 hours per week for external and heavy household maintenance. This equates to 4 hours per week, plus provision for a fortnightly car wash. Ms Zeman assessed the plaintiff as having no past care requirements relating to personal care, laundry, transport, shopping, or meal preparation, as the plaintiff was able to make the necessary adaptions to function within her symptoms. Ms Zeman's assessment of 4 hours per week did not fluctuate to take into account periods where the plaintiff developed a psychological disorder that worsened over time, nor did it account for the fluctuating severity of her physical disabilities.
I prefer Ms Barbara's assessment. However, I have made modifications to accord with my findings in relation to the video surveillance, from which I determined that the plaintiff was exaggerating her symptoms.
Ms Barbara summarised the three phases of past domestic services as follows. Ms Barbara based the hours upon discussion with Gemma, review of her medical reports, observations of her home and property and Ms Barbara's own experience in requirements for care after injury. Ms Barbara considered the care provided to have been fair and reasonable in light of these factors. This care would not have been provided if not for the 6 March 2013 injuries. TYPE OF CARE PROVIDED PERIOD NUMBER OF WEEKS AVERAGE TRANSPORT HOURS PER WEEK AVERAGE CARE HOURS PER WEEK TOTAL HOURS PER WEEK (1) Phase one 6 March 2013 to 30 November 2013 38.5 5 26 31 Personal care, meal preparation, household cleaning and laundry, grocery shopping, lawn, yard and home maintenance, care cleaning and transport (2) Phase two 1 December 2013 to 18 February 2015 128 1 17 18 Personal care, meal preparation household cleaning and laundry, grocery shopping, lawn, yard and home maintenance, car cleaning and transport (3) Phase three 19 February 2015 to date 100 1 22 23 Personal care, meal preparation household cleaning and laundry, grocery shopping, lawn, yard and home maintenance, car cleaning and transport

[80]

Future domestic assistance

Both occupational therapists accept the plaintiff requires future assistance of a commercial nature. There is a no dispute as to the rates for the provision of the services.
The plaintiff claims 8 hours per week domestic assistance at $48.28 per hour = $386.24; 4 hours per week yard and garden maintenance at $48.28 per hour = $193.12; fortnightly car washing at $60 per wash = $300; and weekly grocery delivery at $13 per week = $134. $622.36 x 938.2 = $583,898.15.
Regarding future care, the defendant has made an allowance of 4 hours per week for a further 10 years, with a reduction of 25% for vicissitudes. $46.79 x 412.9 - 25% equates to $57,959. The defendant submitted that, similar to economic loss, the deduction should be made by reason of the plaintiff's pre-existing condition which would have given rise to her requiring care and assistance even if she had not been injured in the accident. Section 151K(3) of the Workers Compensation Act requires that fact to be taken into account, as does the law.
In summary, the experts' respective positions before watching the surveillance footage were as follows. 1. Meal preparation: Ms Zeman did not allow any hours for meal preparation; Ms Barbara allowed 3 hours per week. 2. Domestic cleaning: both experts agreed to allow 3 hours per week. 3. Laundry: both experts agreed upon 2 hours per week. 4. Yard and garden: Ms Zeman allowed 2.5 hours per week; Ms Barbara allowed 4 hours. 5. Car washing: both agreed that this should be allowed fortnightly. 6. Grocery delivery: Ms Zeman said no allowance; Ms Barbara said weekly.
After watching the surveillance, the experts' respective positions were: 1. Meal preparation: Ms Zeman did not allow any hours for meal preparation; Ms Barbara allowed 3 hours per week. 2. Domestic cleaning: Ms Zeman reduced her allowance to 1.5 hours per week; Ms Barbara maintained 3 hours per week. 3. Laundry: Ms Zeman reduced her allowance to nothing; Ms Barbara remained at 2 hours per week. 4. Yard and garden: Ms Zeman allowed 2.5 hours per week; Ms Barbara allowed 4 hours per week. 5. Car washing: both experts agreed with fortnightly. 6. Grocery delivery: Ms Zeman made no allowance; Ms Barbara allowed for a $13 weekly delivery fee.
I have set out my findings in detail under the hearing for past economic loss. The plaintiff's condition has not changed markedly since phase three of her past domestic care, and I rely on what I said in respect of that period. I take into account that the plaintiff's children are teenagers and capable of taking care of most of their domestic needs. I allow 1 hour for meal preparation, 3 hours for domestic cleaning and laundry, 3 hours for yard and garden maintenance, and fortnightly car washing and grocery delivery. The parties are to calculate this amount.
As previously stated, there is no deduction for vicissitudes of life when assessing damages for future domestic assistance: see Sharman per Gibbs and Stephen JJ.

Duffin v Mount Arthur Coal Pty Ltd

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